Subject: RE: BXAPL - request for comments
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Mon, 28 Oct 2002 15:02:02 -0800

> > > B) Copyrights of Modifications to be passed to Copyright Holder.
> > >      Found no mention of such a requirement in the OSL.
> > 
> > The requirement that downstream licensees who modify the software 
> > assign their copyrights to the licensor is entirely 
> unacceptable.  Why 
> > do you need that?  The OSL is fully enforceable by the 
> licensor even 
> > if he doesn't own the copyrights.  (This is not true for the GPL or 
> > LGPL!)
> --> It was based on QPL, section 2. If it is utterly unacceptable
>       then how did the QPL ever get approved? If it hadn't 
> been approved
>       I never would have used it as a source of inspriation.

I'm confused.  The QPL doesn't require that "copyrights of modifications
be passed to copyright holder."  Section 2 in the QPL?  I still don't
see it.

> > Entirely up to you.  But if you insist on your point B, above, I'll 
> > recommend disapproval of your license.  I should also note that, 
> > although this is not legal advice nor intended to create an 
> > attorney-client relationship with you, I believe several 
> sections of 
> > your license are probably unenforceable and of dubious 
> legal effect.  
> > In particular, your claim that your license is not a 
> contract is legal 
> > hogwash.
> --> This list has recently seen a heated debate over the very issue.
>       I know your point of view. Nevertheless, since so much debate
>       was spent on it, I thought it prudent to make it explicit.
>       Whether or not it is enforcible or hogwash or whatever will
>       - in the ultimate case -  be decided by a judge of appropriate
>       jurisdiction. Which will be Dutch in my case, French for 
>       Steve Lhomme's case. You may be right when it comes down
>       to American jurisdictions - you're undoubtedly way better
>       informed than either of us on that matter. But when it comes
>      to the Dutch or French case? And even if it is hogwash in 
>      some jurisdictions, it is nobody's way and may help to  make
>       things clear.

Sorry, I regretted my use of the term "hogwash" as soon as I sent the
email.  I just strongly believe that no US judge will enforce anything
other than copyright law terms in a copyright license; if the license is
subject to contract law, however, then contract law terms can be
enforced.  What a court will do in Holland or France is a mystery to me.
Do the judges there still wear wigs and speak in haughty accents?

/Larry

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