Subject: Re: [repost] [j@uriah.heep.sax.de: For Approval: The beer-ware license]
From: "Alexander Terekhov" <alexander.terekhov@gmail.com>
Date: Thu, 24 Jan 2008 09:24:08 +0100

 Thu, 24 Jan 2008 09:24:08 +0100
On Jan 24, 2008 6:46 AM, Russ Nelson <nelson@crynwr.com> wrote:
> Matthew Flaschen writes:
>  > That's just not true.  It says "/you can/ buy me a beer in return.".
>  > "You can" can be interpreted as "You are able to" or "You have
>  > permission to" (in which case "You may" would have been more clear).  It
>  > can not be interpreted as "You are obligated to".
>
> Nonsense.  It's in the license, so it must be imposing a legal
> obligation.  If it merely informs the person that they are able to buy
> the author a beer, they could do that even if was absent from the
> license.  Why is it in there?  Clearly it imposes an obligation to
> purchase a single malted hoppy alcoholic beverage on the redistributor
> of the software (but only the ones who have expressed admiration for
> the quality of the software).
>
> Remember: licenses aren't needed between friends, so you can't choose
> a friendly interpretation.  Licenses are needed between fucking
> assholes so the licensed use may continue in spite of the hostility.

http://jmri.sourceforge.net/k/docket/cafc-pi-1/AppellantsBrief.pdf

The Appellant's Brief complains that the district court construed
the Artistic license broadly:

"The district court briefly discussed S.O.S., Inc v. Payday,
Inc., 886 F.2d 1081 (9th Cir. 1989) and the scope of the license
grant, but did not address an important aspect of the S.O.S.
decision  that a court must construe a license narrowly to
protect the rights of the copyright holder. A10. Instead, the
district court interpreted the license broadly."

Here is what the Ninth Circuit said about its decision in S.O.S.
v. Payday Inc. ten years later in SUN MICROSYSTEMS v MICROSOFT
188 F.3d 1115 (9th Cir. 1999):

"The determination of whether the compatibility terms in the
TLDA are covenants or limitations on the scope of the license
is likewise a contractual issue, for it requires us to construe
the license. We recognized this in S.O.S., Inc. v. Payday, Inc.,
886 F.2d 1081 (9th Cir. 1989). In S.O.S., the plaintiff, which
held a copyright in a computer program, had granted the
defendant a license to "use" the software and had explicitly
reserved all other rights. The plaintiff claimed that by modify-
ing the software the defendant had exceeded the scope of the
license and therefore infringed the copyright. The district
court, using California contract law to construe the license,
applied the rule that contracts should be construed against the
drafter and held that the license therefore permitted any uses
not explicitly forbidden. On appeal, we agreed that we should
"rely on state law to provide the canons of contractual
construction" provided that 'such rules do not interfere with
federal copyright law or policy.' Id. at 1088."

The facts concerning the Artistic License are very different from
the two party *negotiated* contracts in the S.O.S., Inc. and Sun
Microsystems cases. "Negotiation" is fundamental to the concept of
"freedom to contract".

The Artistic License is a public contract of adhesion (a
take-it-or-leave-it offer). The license is offered to literally
millions of people in the general public. None of those millions
of potential parties had an opportunity to discuss how the
license terms are to be construed. The courts have ruled many of
these contracts as "enforceable" but how they are interpreted is
a broad and open question left to state law in fifty different
jurisdictions.

Consider the reasoning of the South Carolina Supreme Court in
this contract decision:

"Generally, if the terms of a contract are clear and unambiguous,
this Court must enforce the contract according to its terms
regardless of its wisdom or folly. Ellis v. Taylor, 316 S.C. 245,
449 S.E.2d 487 (1994). Ambiguous language in a contract, however,
should be construed liberally and interpreted strongly in favor
of the non-drafting party.  Myrtle Beach Lumber Co., Inc. v.
Willoughby, 276 S.C. 3, 274 S.E.2d 423 (1981). After all, the
drafting party has the greater opportunity to prevent mistakes in
meaning. It is responsible for any ambiguity and should be the
one to suffer from its shortcomings."; Green Tree Financial Corp.
v. Lackey, Buggs, and Buggs, Opinion No. 25523 (2002).

The drafters of open source license such as the Perl Artistic
License (or GPL) often draw up murky, legally dubious contracts
and then make outrageous claims as to how the license terms are
to be construed.

Sincerely,
Rjack J

--- "Although the United States Copyright Act, 17 U.S.C.  101-
1332, grants exclusive jurisdiction for infringement claims to
the federal courts, those courts construe copyrights as contracts
and turn to the relevant state law to interpret them.";
Automation by Design, Inc. v. Raybestos Products Co., 463 F.3d
749, (United States Court of Appeals for the Seventh Circuit
2006) ---

</quote>

regards,
alexander.

--
"Because of their informal and diffuse nature, open source groups are
vulnerable to theft of their intellectual property. That theft, in the
form of copyright infringement, happened in this case, and Jacobsen
sought a preliminary injunction to enjoin Katzer and KAMIND's
infringement."

 -- BRIEF OF ROBERT G. JACOBSEN, PLAINTIFF-APPELLANT, CAFC 2008-1001