Subject: A totally random post about the role of the OSI (Was Automatic GPL termination)
From: "Chris DiBona" <cdibona@gmail.com>
Date: Wed, 19 Sep 2007 08:30:08 -0700

 Wed, 19 Sep 2007 08:30:08 -0700
Feel free to thread-kill, oh pleader for on-topicness. I've warned you! :-)

So the only thing I'd like to say in response to the 'legal testing'
and 'contract vs license' and other legal debates we have on this list
is this:

Relying overly heavily on the legal system to enforce or affirm open
source compliance is almost totally a waste of time.

If you view the variety of open source licenses as social contracts,
they becomes so much easier to deal with. They become simple, even.
This is actually one of our guiding principles for compliance at
Google. Do what the license (even if you think they're a contract,
whatever) requires, for sure, but try to learn what drives the
creators of the open source software we use -mean- when they release
code  to better know what can help these tools continue to thrive.

Legal arguments imply a jurisdiction, which you oftentimes can't count
on identifying at all (unless you're an eastern jurisdiction of texas
kind of dude) Who determines the jurisdiction of an open source
project? It's creators? contributors? bug reporters? users? The first
to sue?

Legal arguments imply precedent in court. Which court? Wipo? Do you
mean those people who are part of wipo+moral rights or those without?
What about the other international agreements? What about Haralds
'victories' in Germany? Do they translate into victories for
non-kernel projects? What about the gpls 'losses' in the US? Do they
matter on whit for kernel adoption?

I know this post is hugely random, but what I'm trying to say is that
open source licenses give us the common infrastructure to understand
what developers mean and intend when they share code. That's what's
useful about them, and why I think the OSI  matters. They confirm that
the licenses that go through license-discuss adequately describe that
meaning. I'm not sure that OSI can confirm legal applicability anymore
than they can confirm whether they are a contract vs a license at a.

And I'm also pretty sure it doesn't matter to developers. They know
what they -mean- when they release software under the Apache, BSD,
LGPL or GPL licenses. This, btw, is also why I think they avoid the
other licenses. I'm not going to pick on anyone here, but if you don't
trust the creator of the license, why would developer adopt it?

Chris

On 9/19/07, dlw <danw6144@insightbb.com> wrote:
>
> My remark:
>
> "How can present day Free Software believers wallow in the tripe that
> Moglen spews? His goal is the destruction of 'intellectual property' in
> commerce."
>
> was expressing my incredulousness at the general mindset of the Free
> Software worshipers concerning GPL2 and the "patenting busting" GPL3.
> Moglen cites 5th Century Byzantine history as support for the GPL not
> being a contract. Might as well cite little green men from Alpha Centuri .
>
> The fact is U.S. statutory and case case law controls licensing for
> intellectual property in US jurisdictions. Moglen invents fantasy legal
> principles and his cult followers believe him.
>
> Reality -- the GPL is a contract. The GPL is preempted by 17 USC sec.
> 301. The GPL is a misuse of copyright. The belief that a purported
> copyright license can control patents is not based in reality.
>
> Have you ever seen the Free Software Foundation cite U.S. case law
> precedents implying the GPL is not a contract?
> Eben Moglen made up the idea so as not to run afoul of the common law of
> contracts. PJ ran a story on Groklaw citing
> Moglen about why the GPL was not preempted because it was "a license not
> a contract" and an urban legend was born
> that persists to this day.
>
> The OSI spouts similar nonsense concerning controlling "downstream"
> evolving derivative works. The "downstream" derivative works certainly
> involve more than just parties in privity. Where's the law supporting
> such "downstream"claims? Any copyright contract that involves
> controlling third party intellectual property rights at some point is
> going to attract instant and automatic scrutiny from a district court
> concerning 17 USC sec. 301 because jurisdictional questions arise.
> Proper jurisdiction claims must exist for Federal Courts before any
> merits are examined and a preempted contract claim fails jurisdiction.
>
> Here's an excerpt from the recent JMRI Project Model Train decision:
>
> "Although the state claims are subject to dismissal on the merits for
> lack of standing and
> for failure to state a claim upon which relief can be granted, the Court
> also finds that the two
> counts are preempted by federal copyright law, to the extent Plaintiff
> makes out a claim for
> copyright infringement.
>
> Section 301 of the Federal Copyright Act provides in pertinent part:
> all legal or equitable rights that are equivalent to any of the
> exclusive rights
> within the general scope of copyright ... are governed exclusively by
> this title.
> Thereafter, no person is entitled to any such right or equivalent right
> in any
> such work under the common law or statutes of any State.
> 17 U.S.C.  301. The federal copyright preemption of overlapping state
> law claims is "explicit
> and broad."
>
> Supporters of open source license instantly forget the need to answer
> with real statute and case law and when confronted
> by critics citing legal principles. Open source defenders usually prefer
> to resort to ridicule and name calling ("trolls") in lieu of rational
> argument.
>
>


-- 
Open Source Programs Manager, Google Inc.
Google's Open Source program can be found at http://code.google.com
Personal Weblog: http://dibona.com