Subject: Re: written offer valid for any third party Re: OSI enforcement?
From: Rick Moen <>
Date: Fri, 11 Jan 2008 14:09:47 -0800

Quoting Roger Fujii (

> It is arguable whether or not "transmission medium" is the same as "medium"
> in this case.

I did not speak of "transmission medium", only of "medium".  FTP is a
medium, i.e., something over which actions occur (and, in particular,
relevant to this context, over which data get passed).

> I don't think putting source up on a ftp site with a 300bps
> link to the internet for a 100mb package would pass 2b).

Please note that I did _not_ say "any FTP availability over a minimum of
three years, no matter how defective or incapable" -- and, last I
checked, judges had not yet had the ability to apply the venerable 
"reasonable man" standard surgically excised from their brains.

Now, much though I love straw-man arguments, was that _really_ a
sensible use of your time and mine, Roger?

> FSF has from the beginning argued that 2b) was meant for physical media...

They can _argue_ whatever they wish, but the licensors' wishes are
embodied in the actual text of the licence, not in the licence drafter's
statements (nor the statements of groups to which the drafter belongs).
More often than not, FSF isn't even the licensor in the first place.

Even where FSF _is_, courts will (at least in common-law jurisdictions
-- and I believe civil law countries are even more emphatic on this
point) apply the "parole evidence rule":  It will assume that, whenever
an agreement or other instrument has been committed to writing, that it
was intended to be the final and complete expression of the agreement
between the parties, and deny assertions that earlier alleged oral or
written agreements (or any contemporaneous oral agreements) should
modify or influence the terms. 

> so it's going a little far saying that's a mispresentation....

It definitely _is_ a misrepresentation, because that's simply not what
the licence _says_.  If Prof. Moglen had meant to say "physical medium", 
he could have done so.  He did not.

FSF has found that fact inconvenient:  That's too bad.  However, claiming
that GPLv2 clause 3b says something it doesn't _is_ misrepresentation.

(And, no, FSF did not argue that bit of humbug "from the beginning",
only since around year 2001.)

> Unfortuantely, FSF has a vested interest not to re-interpret words in
> current context, so you have this particular problem.

Oddly, I'd say FSF has over the years shown a repeated tendency to
interpret words variously at different times.  E.g., their
pronouncements on what is a derivative work have been all over the map,
over the years.  (They are not alone in this.  Torvalds, for one, has
been even more inconsistent.)