Subject: Re: Strong Court Ruling Upholds the Artistic License (fwd)
From: "Ben Tilly" <btilly@gmail.com>
Date: Sun, 17 Aug 2008 10:23:40 -0700

On Sun, Aug 17, 2008 at 8:06 AM, Tzeng, Nigel H. <Nigel.Tzeng@jhuapl.edu> wrote:
> I find it interesting that the response to a lawyer's unofficial but
> professional opinion about a legal
> ruling is disagreement and "are you deliberately trolling here?".

The lawyer in question had just said that this decision wholly ignored
the long-standing principle that terms are routinely interpreted as
covenants rather than restrictions unless the agreement defines
restrictions as conditions rather than covenants.  Yet if you read the
decision for yourself you will find that the judge quoted the sections
of the license that say that the restrictions are conditions, and
cited specific precedent which said that that kind of language should
be interpreted that way.

I therefore find it hard to believe that anyone who has read the
decision could fail to understand that precedent was *not* ignored.
When added to the repeated comments that say that the open source
community should want the exact opposite of what most in that
community do, in fact, want, I had to ask whether the post was
intended to generate hostile responses rather than useful dialog.

> This would be kinda like a lawyer asking me if I were deliberately trolling
> when I provide unofficial
> (because you aren't paying me for my services) but professional opinion
> about how a SOAP based
> web service implementation may not be as rosy a vendor makes it out to be
> based on my own
> experience with interoperability issues with SOAP-based web service stacks.

To complete the analogy your professional opinion should be
diametrically opposed to all other publicly available information, and
your opinion should repeatedly say that people don't want what they
say they do, and do want what they say they don't.

At that point, even though your reply may be based on experience, the
lawyer could fairly ask if you were trying to raise controversy rather
than provide useful information.

[...]
> My layperson perspective (based on news articles and...heh...blog posts of
> real lawyers)
> on the most recent rulings (MDY v. Blizzard, Jacobsen v. Katzer, etc) is I
> find that since the 9th
> Circuit MAI v. Peak ruling the courts have been allowing software copyright
> holders more and more
> rights beyond what I understand other copyright holders enjoy.
>
> I don't see this as a good thing.

My understanding is that software copyright holders enjoy the exact
same rights as other copyright holders.  The difference is that in
software we tend to use copyrighted material in different ways.

For example look at this decision (Jacobsen v. Katzer).  The decision
discusses Creative Commons licenses extensively.  There is no doubt in
my mind, having read the decision, that it applies to Creative Commons
licensed material.  But Creative Commons licenses are far more often
used in photography than in software.  How then can you say that
software is getting special treatment here?

Cheers,
Ben