Subject: Re: New angle on the patent problem
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Thu, 16 Sep 1999 11:39:44 +0900 (JST)

>>>>> "shapj" == shapj  <shapj@us.ibm.com> writes:

    shapj> This is why the GPL, in spite of being written in
    shapj> relatively human readable English and in spite of being a
    shapj> fairly ambiguous license, is still enforceable in practice.

    >> Citations to cases which actually went to court (not
    >> necessarily decided there)?

    shapj> The cases I have heard about have been settled, so I cannot
    shapj> answer you directly.

Those are the ones I wanted to hear about.

    shapj> Under US contract law, the contract must be interpreted
    shapj> according to the intent of the parties who wrote it.  A
    shapj> random third party cannot come along and claim that
    shapj> provision X means something else.  A licensee might claim a
    shapj> different interpretation on something substantial later,
    shapj> but GPL is so widely known and its intent so well
    shapj> publicized that such a claim would be difficult to sustain.

(Aside) I am afraid that would probably not extend to the poison pill
clause.

    shapj> Interpretation of contract in other countries may work
    shapj> differently.  Does anyone know how it works elsewhere?

In Japan, it's pretty much up to the court's personal interpretation
of the law and the wording of the contract.  (Of course that's deeply
informed by judicial customary practice and case law, it's not as
arbitrary as it sounds.)  That's one reason things tend to get settled
out of court in Japan.  It is a common complaint of foreigners and
members of indigenous minorities that they cannot get a fair hearing
from Japanese courts, because the court does not have experience with
their environment, and often denies requests to present expert
testimony as not germane.

It is pretty arbitrary, especially since Japanese contracts also tend
to be rather ambiguous.  For example, I signed a piece of paper
binding me to employment, but I have _no_ paper evidence of the rather
significant change from the normal contract for aliens (contract term
limit of 3--5 years) to the no-term-limit contract (similar to tenure
in the U.S.) I now have.  (The fact that it's been published in the
University's personnel transactions journal is sufficient, of course,
but I know people who have lost jobs weeks after being told they had
been extended, because there was no paper evidence to prove a
commitment on the part of the employer.)

So the court has wide leeway.  A contract here, especially between
large established companies, or an extremely asymmetric pair of
parties (industrial giant and small subcontractor) is basically just a
starting point for renegotiation.  I don't know what happens between a
Japanese company and a foreign company about equally matched; I have
heard it tends to be extremely messy, and usually ends with very bad
feeling on both sides unless settled quickly and amicably.

BTW, Kenichi Handa, the principal author of Mule (the package of
MUlti-Lingual extensions to Emacs), has been advised (by a real
Japanese lawyer; how carefully he studied the issue I do not know)
that the GPL itself probably would not stand up in a Japanese court.
Furthermore, Mule itself has a unique status.  Its copyright has not
been assigned to the FSF because it rests with the Japanese
government, and I believe that a decision to assign it would require
approval by the Ministry of Finance (anyway, a bureaucratic entity far
removed from the scene, with no understanding of the issues, which
might try to invalidate the GPL); instead, a contract has been made
between the FSF and the Electrotechnical Laboratory which designates
the FSF as the agent charged with enforcing the GPL.  On what basis
that contract would stand up I can't imagine....

These are the facts as best I can ascertain (in time to reply in real
time), but they're all hearsay.  They are consistent with the folklore
I've heard from OSS hackers here; but then they may very well be
extrapolating from the same stories I've heard.

-- 
University of Tsukuba                Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
Institute of Policy and Planning Sciences       Tel/fax: +81 (298) 53-5091
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What are those two straight lines for?  "Free software rules."