Subject: Re: Strong Court Ruling Upholds the Artistic License (fwd)
From: Rick Moen <rick@linuxmafia.com>
Date: Fri, 15 Aug 2008 14:58:31 -0700

Quoting John Cowan (cowan@ccil.org):
> dtemeles@nvalaw.com scripsit:
> 
> > First, the CAFC's decision is a clear repudiation of the "bare  
> > license" theory long espoused by Mr. Moglen and his followers.  The  
> > CAFC's decision reflects the fact that open source licenses, like any  
> > other form of software licenses, are contracts.  
> 
> Distinguo.  

L'havdil.  ;->

> Moglen et al. have never claimed, as far as I know,
> that *all* open-source licenses are not contracts, merely that
> *some* of them are not.

Some of Moglen's wording in, e.g.,
http://emoglen.law.columbia.edu/publications/lu-12.html has been loose
and sloppy enough to read them as being a claim about all software
licences, but that would require ignoring the larger context and the
fact that Prof. Moglen is certainly aware that many such licences are
obviously and explicitly drafted using contract licence, and in some
cases explicitly state an intention to be so treated.

Of course, computerists tend to be _really good_ at ignoring context, so 
I guess I shouldn't be surprised.

The most sensible interpretation of Moglen et alii's position is that 
at least _some_ free-software licences can, by their terms, be
fruitfully considered as grants under copyright law irrespective of how
they might fare if evaluated as aspiring contracts. 

[debatable points in popular licences:]

> Their drift is clear enough, and 99.99999...% of the time the
> minutiae did not matter.  There are two kinds of people who violate
> open-source licenses: those who do not understand them (and are generally
> eager to cure any breach), and open and notorious evil livers who don't
> care what they do.  Such are Katzer/Kamind.

Upton Sinclair:  "It's hard to understand something when your paycheck
depends on your not understanding it."