Subject: Re: MPL, CDDL, patents and licencing
From: John Cowan <jcowan@reutershealth.com>
Date: Tue, 8 Feb 2005 08:43:44 -0500

Jason White scripsit:

> First, I apologize in advance if this post is off-topic. 

It definitely isn't.

> I can think of several alternative analyses that might be given of
> how to apply the qualifications in sections 2.1 (d) and 2.2 (d) to
> the grants in 2.1 (b) and 2.2 (b) in these circumstances, which give
> different results, but as I don't have a background in patent law and
> haven't researched any relevant case law I'll forego the speculation
> and just ask the question.

Welcome to the Twilight Zone, where case law is practically non-existent,
statutes are more confusing than helpful, and (more or less intelligent)
analysis and (more or less daring) speculation rule the world by default.
:-)

> I also notice that there is an asymmetry between the Initial Developer
> and Contributors in both the MPL and the CDDL in that only the latter
> are subject to the following provision (here quoting the CDDL version
> with the cross-reference omitted):
> 
> "You represent that You believe Your Modifications are Your original
> creation(s) and/or You have sufficient rights to grant the rights
> conveyed by this License."

That's something that I complained about in my reviews of the CDDL as
unnecessarily asymmetric (and sure enough it became controversial), though
I agree with Rod that it's clearly implied.  Hackers don't like "implied";
they tend to analyze licenses as if they were code, and assume that
judges are as easily bamboozled as computers.

> In an article at groklaw.com the absence of disclosure requirements in
> the CDDL is criticized on the footing that it would allow an Initial
> Developer to release code under the licence which is known to be subject
> to third party claims that would be infringed by licencees who use or
> distribute the software.

Provided said I.D. is an idiot and doesn't mind committing fraud, yes.

> I must admit that I find the objection at Groklaw confusing
> to say the least.

Not confusing, merely insanely nitpicking and talmudistic.  See above.

> I note that unlike the OSL and MPL, the CDDL stands alone in excluding
> the contra proferentem principle of interpretation.

Actually, the MPL (as well as many other corporate-lawyer-written
licenses) does have such a provision: see the last sentence of Section 11.
I protested the inclusion of this in the CDDL as unfair and unnecessary,
again unavailingly.  (I should add that the people at Sun I dealt with
were sympathetic to my objections; it was Sun Legal that held firm on
some of them.)

I suspect (IANAL) that such language is unenforceable anyway in what is
after all (with the best will in the world) a contract of adhesion, being
intended precisely to protect members of the public against the unexpected
or un-obvious effects of clever drafting, and that if it is ever enforced
it will only be in cases where the effect is not in fact unconscionable.

-- 
If you have ever wondered if you are in hell,         John Cowan
it has been said, then you are on a well-traveled     http://www.ccil.org/~cowan
road of spiritual inquiry.  If you are absolutely   http://www.reutershealth.com
sure you are in hell, however, then you must be         jcowan@reutershealth.com
on the Cross Bronx Expressway.          --Alan Feuer, NYTimes, 2002-09-20