Subject: Re: The Simple Permissive License, v0.1
From: "Mahesh T Pai" <paivakil@yahoo.co.in>
Date: Mon, 11 Feb 2002 22:47:54 +0530

Dear list,

I am a lawyer, (in India), new to the Open source movement,
and my views are from the legal perspective.

The copyright licence accompanying any software, is much more than a
mere copyright licence - it constitutes a contract between the copyright
holder, and the end-user.  It should be appreciated that the law of
copyrights
was designed for things which could be re-produced by the owner of the
copyright alone - I am referring to books and you could not, and had no need
to change books for any purpose, at least, it was not profitable.
This is not the case with software.

It is copyrighted material, like book and music, and at the same time, it is
also a
"product" - in sense of law relating to consumer protection, which means, in
some
situations, the courts will regard software as corporeal things, much like
toothpaste,
clothing, television, etc. In such situations, the copyright holder will
have to guard
against the user invoking the "doctrine of detrimental reliance" (because
most Open
source software is distributed free of cost) in event of financial loss
resulting use of
software.  Hence, a provision excluding the liability of the copyright
holder is
absolutely - absolutely - necessary in the licence.

Secondly, the statutes governing copyright also provide for and recognise
the right of the
copyright holder and user to decide the terms and scope of the contract on
which the user
will use the copyrighted material.  This is why all "closed/restricted
source software" have
the :EULA - the End User Licence Agreement.  Obviously, for non-end users,
(like developers
of hardware, plugins, etc) there is a different kind of licence.  This dual
licensing is incompatible
with the OSS philosophy.  Hence, I strongly disagree with Mikko's views on
"implied" or default
in copyright law.

Every software licence should specifically define the scope and extent of a
user's right to (1) distribute,
(2) modify, (3) if 1 and 2 are permitted, distribute the modified version -
of software.



Mikko Valimaki wrote:-----------

> You don't need to say anything about things that are default in
> copyright law. It is default that author's 'moral rights' including the
> copyright notice may not be removed unless the work is substantially
> modified.
>
> Also, you don't need to say anything about the use of the software:
> copyright law knows only rights to copy, distribute and modify works. By
> default these acts are not allowed without author's permission. Hence,
> the license must at least give these rights to the user.
>
> The warranty part is perhaps not so necessary but in some countries
> (like in the US), the author could face legal risks without it. In the
> superstitious US, there is also tradition to write all disclaimers in
> capital letters. I am not 100% sure but I very strongly suspect that
> there would be any law requiring that. Outside US I think we do very
> fine without those obvious notices.

and Mikko Valimaki also wrote:-

> On the other hand, if the modified work is a completely different work,
then

How can modified work become completely different work?  Any work is either
original,
or derivative.  If you rely on work of any other person, however miniscule
your reliance may be,
you are bound to give due recognition to the original owner.


and David Johnson wrote,

> Without clauses like this, you could end up with very lengthy attribution
lists:
>
> Based on code by ..., ..., ..., ..., ..., ..., ...
> Sections of this work derived from ..., ..., ..., ..., ..., ...
> Function fubar() used with permission from Fred, who requires me to say
that
> fubar is based on code by ..., ..., ..., ..., ..., ...

Precisely.  The price of not bothering to find out original ways of doing
things.

and:-----------
Justin Chen-Wells wrote:------

> I'm not sure you guys really want to chop out all the stuff about
> implied warranties and so forth. I know it makes the license long and
> that's contrary to what yo'ure trying to do, but without explicitly
> disclaiming the implied warranties of fitness to purpose and
> merchantability, you are probably open to lawsuits for damages from
> people who lose money due to bugs in your software.
>
> I know it's ridiculous, but we live in a society with ridiculous
> legal requirements. Or maybe they're not so ridiculous.
>
> Justin
>



_________________________________________________________
Do You Yahoo!?
Get your free @yahoo.com address at http://mail.yahoo.com


--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3