Subject: Re: "University-style" vs "Berkeley" licenses
From: shap@eros.cis.upenn.edu
Date: Thu, 27 Aug 1998 10:10:28 -0400

> > From: shap@eros.cis.upenn.edu
> >
> > If advice of counsel has been sought, and after a good faith effort it
> > is determined that a portion of the copyright is unenforcable, it is
> > NOT the obligation of the user to go to the copyright holder and say,
> > in effect: ``please fix your copyright so that my hands will really be
> > tied the way you wanted them to be.''
> 
> I agree that it is not the obligation, regardless, it is the correct
> thing to do.
> 
> The argument that "it's technically legal, therefore it's OK to do"
> is not a particularly pleasant one.

That wasn't the argument I was making, nor did I *advocate* the
behavior.

Under some circumstances, however, it is legitemate to take advantage
of a legal technicality.  Whether it is legitemate for some particular
circumstance strikes me as a moral question.  As I say, I'm not taking
a position on this particular example -- haven't thought about it
enough.


The problem with the ``go back and get the contract fixed'' position,
ultimately, is that it inequitably shifts the burden of law and cost
onto the licensee.  Suppose there is a bad term in a license.  As the
licensee, I can do several things:

   1. Ignore it out of hand.
   2. Check with counsel, get a legal opinion on whether the term is
      valid, and act accordingly (the case at hand)
   3. Renegotiate the license
   4. Inform the licensor so that they will fix the license to enforce
      the term that was a problem to me.

Let's look at those options:

Option (1) is clearly dishonest (IMHO).

Option (4) won't help in the case at hand.  The material remains
published under the previous license and a new license cannot change
the terms of the earlier publication -- publications are not
rescindable, so the horse is out of the barn.  Tipping the licensor
off may be a neighborly thing to do, but it isn't going to change the
terms of the debate.

It's also not in the interests of the licensee, so a licensor has no
``reasonable expectation'' that this will occur.  [I recognize and
choose not to take a position on the moral argument over doing so
because I haven't thought about it enough.]

The choice, then, is between options (2) and (3).  

Option (2) is a way for the licensee essentially bets on the future
outcome in the courts:

	If the licensee is correct, no successful action can be taken
	against them, *and they have not been forced to pay to correct
	the errors of the licensor*.

	If the licensee is wrong, punitive damages will be applied by
	the courts, and the licensee will more than pay for betting
	wrong.

If it were possible in our legal system to cost effectively get a
ruling in advance of infringement, this would be the right thing to.
To the best of my knowledge it is not.

If it were less expensive to defend an infringement case, I might
think there was a moral obligation to inform the licensor that one is
taking such an action.  As things stand, taking things to court
presents a huge financial penalty even if you guess right about the
outcome, and the moral obligation is outweighed by the cost (this is a
basic incentive problem within the existing legal system).

Option (3) has the advantage of a determinate outcome, but it's much
more expensive.  First, you have to get the other side convinced.
Then you have to convince them that you are worth the legal cost of
renegotiating. Then you have to *pay* the lawyers involved.  Mucho $$$.
Sometimes it's not possible, and you are *forced* to back to Option (2).


Stepping up a level, there is a principle to consider: One who asserts
control over something should shoulder the *costs* of the control
along with the profits.  They should not be able to shift the
financial burden of control to the parties controlled.

In the US, our current civil legal system is *designed* with the idea
that taking Option (2) above is legitemate compromise over burden
shifting given the cost of court decision.  It's not perfect, but it
is pragmatic.

Finally, remember that we are not talking about criminal matters here.
Many civil disputes have no clear-cut right and wrong, nor are the
damages or even the damaged parties always clear.  The nature of civil
disputes is differences of interpretation, and the forum for such
discussions is the courts.



shap