[linux-elitists] Re: [on-list] The breadth of SCO's claims

Aaron Sherman ajs@ajs.com
Tue Jul 8 13:26:30 PDT 2003


On Tue, 2003-07-08 at 12:50, Rick Moen wrote:

Good response, thanks for taking the time.

> Hi, Aaron.  I notice that you departed from the mailing list into
> private mail.  No objection, but you should notify people when you do
> so.  Also, I've removed the mailing-list tag from the subject header.
> (You should likewise do that.)

I'm sorry, the ettiquite of this list is just flummoxing me. It's just
culture clash, I'm sure.

On development lists, you generally take a discussion off of the list if
you're going to dive down into minor points, or deal with off-topic
stuff, and then bring it back once you've reached some sort of
conclusion. I've done exactly that here, but the idea of chaning the
subject line, CCing or not CCing, etc. just hasn't been an issue in the
past.

I'm sorry about botching the protocol.

> Your questions came across as (1) rhetorical (question-begging), and (2)
> repetitious.  (I had followed the public portion of your discussion with
> Karsten.)

Yeah, I got that. I guess in some respects perhaps I suffered from all
of these failings. I did walk into this conversation with a bit of the
wide-eyed "gee, did I just discover a way to factor large primes?!" sort
of enthusiasm, and yeah I know that can be grating if you've heard it
enough.

> > I know that not everything I said was absolutely wrong, since I'm
> > reasonably sure of my sources.
> 
> Certainly not.  For example, you are quite correct that acceptance of
> licence terms is optional.  The GPLv2 itself points out this fact:

[GPL discussion we both agree on]

> My irritated comment that you shouldn't try to teach your grandmother to
> suck eggs owes to the fact that _I've_ been explaining that to people
> for the better part of a decade, already.  Nonetheless, you did indicate
> that you're a bit ahead of the curve in understanding that point, even
> if the way you "explained" it to me did piss me off.

Yeah, I can do that. Sorry. I just don't have a very good empathy for
how things will be taken.

> Aaron, at some point, licensing greybeards like Karsten and I are simply
> going to tell you to fsck off, because we don't think you're getting it
> and don't care to argue with someone whose "not agreeing" seems to
> consist mostly of endless repetition of wrong-headed positions backed by
> appeals to authority, and ignoring of pointed critiques.

I think what I was trying to say there (context not coming to mind right
away) was that you or Karsten had a strawman all ready to go for idiots
like me who just fell off the boat, and it didn't really matter if I was
an idiot or if my particular boat came to shore 12 years ago, just in a
different port... I was coming close enough to what you'd heard all too
often, and you knew exactly where it was going... even if it wasn't. 

> For example, you asserted:
> 
> > Every lawyer I've ever spoken to about software copyright and
> > licensing has always made it clear that a license *is* a contract.
> 
> In a subsequent post (admittedly after I blew you off), I commented:
> 
>    If the latest RIAA wares fall off a truck in front of your house, you
>    have no contract with that recording studio, yet your rights to use the
>    goods that fell in your yard are restricted -- by the Copyright Act (or
>    your nation's local equivalent).

Yes, yes, yes. Agreed! The lawyer I spoke to recently refered to those
as "default rights under copyright law" not a "default license", but ok
I can go either way. I tend to think that copyright law's provisions are
just that, provisions, and a license is a grant of rights from the owner
to the user. But your usage works too. I have zero clue which usage a
court would expect, and won't pretend to.

When a license has terms (and, I can't think of any that don't) I call
that a contract, but in some cases, I should probably be using the term
"agreement", which is less weighted (and which I was clearly in need of
in your quote of me, above).

> > If I hadn't been listening I wouldn't have been asking more questions.
> 
> I may be cynical in my old age, but in my experience this is absolutely
> a non sequitur.  Quite a lot of people ask "questions" that are
> irritatingly reworked assertions of fact.  Yours looked very much like
> those, especially given your accompanying assertions like the one quoted
> above.

Perhaps that was my enthusiasm for a point that I thought I had by the
tail (but which, on consulting our corporate lawyer seems to have been a
misunderstanding, and which I explained in great detail to Karsten in a
message which was "deleted without consideration"... oh well).

Essentially that original question I had was flawed, and it came down to
a point of confusion that I had over "divisible" and "indivisible"
ownership.

Derived works are generally considered to be indivisible works of
co-authorship only when the parties collaborated, but in a case like the
BSD TCP stack being used in MS Windows, that would clearly be divisible
ownership, and apparently that entails far fewer rights. This was new to
me, and I consider it a valuable outcome of the conversation. It's the
most basic refutation of my orginal hypothetical, and most of the reason
that I've refered to the rest of the conversation as a red-herring.
Useful in parts, but still not really follow-up to my question about
BSD.

> > I've been through enough litigation. I'm done, thanks. :)
> 
> Hey, I spent my entire teenage years in court, pursuing my shattered
> family's legal claim against the Boeing Company for their defectively
> manufactured B707.  So, I spoke from bitter experience.

Ick, sorry. Same here, on different points.

> > Then let's fix that, shall we? Let's write a definitive guide to the
> > topic. I'll write a draft, get it reviewed by a couple of good lawyers
> > in the field, re-write, repeat and when I think it's ready I'll hand it
> > out to others to review. Let me know if you want to be one of them.
> 
> I'm willing to look at it.  But such a paper really should be written by
> an attorney.  

Well, I'm not sure of that, but I welcome an attorney to write a
simillar paper (or will it end up being a book, who knows).

My goal would be to take the programmer's view, as someone who has been
working with and contributing to free and Open Source software for well
over 10 years now, I think I can relate to the mind-set and understand
why people will make the mistakes they will, and how best to broach the
topic of correcting those.

It will need to be re-written in order to correct the facts, and then
re-cast in the light of those facts, but I think the point of view is
critical. I've seen a lot of stuff from lawyers who work with software
cases and clients, and I'm not sure that's the way to go. It seems to
lead to a mutual assured confusion (as evidenced by my comments here).

Much of it is common-sense to you and I, but may not be obvious to
others (make sure you own it, make sure you specify your terms (e.g.
what license are you using, under what if any conditions) clearly, make
sure there's no ambiguity about your intentions, don't misuse terms like
"public domain", etc).

Some of it needs to be case-by-case analysis of some poor examples.

> > You can't complain about the quality of such documents constructively
> > if you're not willing to critique one before it goes out the door!
> 
> Now, _that's_ bullshit.

Well, perhaps I overstepped and wen't right out into the territory of
taunting there. Sorry.

> I have no obligation, moral or otherwise, to assist you in not
> embarrassing yourself in a paper on software law.

Heh, and then again, perhaps you did the same back ;-)

Thanks again for taking the time to talk TO me, I appeciate that.

-- 
Aaron Sherman <ajs@ajs.com>
Senior Systems Engineer and Toolsmith
"It's the sound of a satellite saying, 'get me down!'" -Shriekback

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