Subject: RE: Approval Requested for AFL 1.2 and OSL 1.1
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Wed, 6 Nov 2002 09:11:35 -0800

Forrest,

You raise a good and important issue.  There is a reason why I use legal
terms of art in my licenses, but I owe you an explanation of that.

As a lawyer drafting a license that at least purports to represent the
concensus views of the open source community, I clearly have to get
buy-in from my own "clients" to what I'm doing.  (Please: I mean
"client" in the colloquial sense.  The only formal client I represent
here is Open Source Initiative.)  Communicating in my clients' language
is important.  

But at the same time I must write for enforceability.  I must do my best
to make sure that other attorneys and the courts will clearly understand
what I mean by every word I use.  In that, I am speaking to a non-geek
audience.  That legal audience is trained in legal terminology that I
must use precisely.

When I use language copied from a statute, I am not suggesting that it
is the most easily understood expression of what we in the geek
community intend.  The word "prepare," for example, doesn't mean
precisely the same thing as the word "create," and perhaps geeks think
it makes more sense to say "create."  But the real reader of an open
source license is another lawyer who is going to advise his client what
that word means.  If I use the word "prepare," just as the Congress did
when it wrote the Copyright Act, and just as the federal courts do when
they decide copyright cases, other lawyers will know exactly what I
mean.  They will know that they can turn to the statutory and case law
in the Licensor's jurisdiction to know what the OSL means.  And if there
is no legal history available to assist in interpretation of the OSL,
we're at least no worse off than we are with the GPL, which is to be
strictly interpreted under the meanings of the Copyright Act.  

I'm using language from the Copyright Act on purpose.

That isn't always true for open source licenses and that concerns me.
Some licenses are downright ambiguous and imprecise.  I'm trying not to
be.

I will tell you also, although this is not intended as legal advice
because you are not my client, that I would advise any client who was
concerned that he was "creating" rather than "preparing," that he not
worry about the distinction.  In that respect, the OSL will almost
certainly be interpreted by the courts the way my geek friend wants it
to be.  

In any event, that's why I did what I did, and I'm not changing the word
"prepare" just 'cause someone doesn't like it.

/Larry

P.S. Not to say that all words in the OSL are precise.  Several people
have already suggested subtle word changes (and deletions) from earlier
versions of the license that really did improve the license enormously.
I value suggestions, but I don't always accept them. /LR

> -----------
> BTW, request for approval after very recent changes is a poor 
> idea from a "release engineering" perspective.  What's the rush?

I feel a slight rush.  We've been talking about OSL 1.1 on
license-discuss for over a month now and I've simply been incorporating
good suggestions made by lots of people.  The license has been submitted
to several companies' attorneys for review and we've considered (and in
one important situation accepted) one company's suggestions for changes.
The OSI board of directors has spent many hours discussing its
provisions.  Nobody has even suggested that the license isn't OSD
compatible.  It's enough better than the currently-approved version that
I'd like to discourage people from using the old version.  So why not
get on with it?

/Larry

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