Subject: Re: written offer valid for any third party Re: OSI enforcement?
From: Rick Moen <>
Date: Sun, 13 Jan 2008 14:01:53 -0800

Quoting Roger Fujii (
> Rick Moen wrote:
> >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.
> Relying on judges, or even worse, juries to come back with a reasonable
> result is something I would never bet on.

You'll absolutely hate the current historical era, then, and I'd frankly
advocate moving to a different one without systems of law.  "Relying on
judges" (and juries), let alone the ubiquitous "reasonable man standard"
within the legal system, is otherwise not optional.

> Agreed.  But, as I said in the past, if there is a dispute of what something
> means, it's not as if what they say has NO influence.

In law, it indeed has no influence -- for reasons already cited.

> >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. 
> I fail to see how this helps.  

OK, I understand that you fail to see.  However, that doesn't change the
fact that parol evidence rule (sorry about typo) is exactly what applies
-- such that judges are going to go by what the licence _says_.

> It's not like the wording of the license
> changed since 1991.  There should be ample documentation that these
> words had certain meanings in the past.  You argument is that those
> meanings are no longer valid _and_ that the receiver understands that.

I beg your pardon, but I made no such argument.  I argued, to the
contrary, that the licence means exactly what it says.

> >(And, no, FSF did not argue that bit of humbug "from the beginning",
> >only since around year 2001.)
> This is the whole point of contention.  Here is a thread over practically
> the same issue in *1993*:
> except he used Bernoulli (now there's a blast from the past! :) )

This supposed example completely fails to support your contention:  In
that case, FSF's Mr. Tower asserted that a Bernoulli cartridge failed to
satisfy the requirements of GPLv2 clause 3b _despite_ being physical
media.  (Tower didn't outline his specific objection, but I would guess
he feels that a judge would rule that the Bernoulli media were too
exotic and non-pervasive technology, even at that time, to qualify as
"customarily used".)

> Don't get me wrong.  I happen to agree with your view.  But as I have
> never seen FSF say they accept ftp as a fulfillment of 3b, and have seen
> many times them saying it is not, I just disagree with your characterization
> about what they are saying.

I certainly expect that FSF has said that numerous times.  I'm merely
pointing out that they've been objectively mistaken exactly as many

> >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.)
> Have they? 

Indeed.  Most notably, they have construed "derivative work" variously
over the years to suit the convenience of their objectives of various
times.  (They have done this with the aim of advocating software
freedom, I should hasten to add.)