[linux-elitists] FAT is the new GIF?

Rick Moen rick@linuxmafia.com
Fri Feb 27 15:26:41 PST 2009

Quoting Greg KH (greg@kroah.com):

> Some do implicitly, some do explicitly.  There is a large group of Linux
> kernel developers who have publically stated that they do permit this.

Generally speaking, what a licensor has _stated_ separately from his/her
licence, that and $1.50 will get you ride on Muni.  More on that below.

> While there are other Linux kernel copyright holders who view GPLv2 as
> not allowing such things, and have been proven out by the courts in some
> countries as being correct.
> Hence the confusion about GPLv2 and this area.

IANAL -- but I did study business law fairly intensively for my first
career (CPA profession).  Within _contract_ law (which I'm well aware 
is not necessarily applicable to litigation involving GPL or a number of
other open source licences), judges apply something called the parol
evidence rule:  Wherever oral statements (alleged by one of the parties
to have been relevant to the contract), even if proved genuine and
relevant, contradict or add to the written terms of the agreement, the
written terms will prevail.

There are a bunch of exceptions, limitations, and requirements for that
rule to apply, i.e., the contract must be judged complete in its terms
("integrated").  But that's the general shape of things.

My larger point -- and, yes, I'm hand-waving a bit -- is that this is
part of an overall picture of judges discounting or ignoring allegedly
relevant oral representations or conduct, when there's a clear and
complete written document laying out the terms.  Such as, for example, a
copyright-based rights grant to an instance of a codebase.

And, of course in situations where FSF (to pick an example) are merely
the drafter of a licence text, and not the licensor, their views are
entirely irrelevant to any legal question.

> > Those who use GPLv3 implicitly disallow it.  FSF's views, and
> > consideration of who is "bad and evil" or who was "asked" have
> > absolutely no bearing on the subject.
> Ah, but they do.  If you were a company who undertook a research of a
> license, and then and went and asked the creator of that license exactly
> what they meant by it, and then went and followed their recommendations,
> only to find yourself at the wrong end of a publicity campaign a few
> years later by those same creators, you too might feel a little
> "badness" had happened.

Some FSF-led campaigns have been known to get actual public notice
(please don't ask me to cite examples), but I think it safe to say most
have qualified as "publicity campaigns" only by generous interpretations
of that word.

But, anyway, all _anyone_ can really do with a software licence is to 
either honour its terms or not.  Whether you do so has really nothing to
do with what the licensor -- let alone the licence text's _drafter_ --
"meant by" the licence.  The meaning of the licence is contained within
it, and the surrounding statutes and caselaw.

And, if you are honouring the licence, and either the licensor or the
drafter launches a "publicity campaign" claiming you're bad and evil, 
the only reasonable response -- and generally a perfectly sufficient and
_effective_ one, given reasonable audiences -- is that you're doing
exactly what the licence says you may do.

> However, when questions arise given the license being used, if
> you are not able to turn to the creators of the license to give proper
> guidance that can be relied apon, who can you turn to?

In the general case, when the licence creators are not also the licensors,
their views are utterly irrelevent.  Inherently.  They are not a party
to the transaction.  

To determine the licensor's exact intentions, it's conceivable that a
judge might look at what the _licensor_ (previously) said on that
subject -- in a very limited sense, given the primacy that clear,
written documents enjoy in that context.  But...  consulting the
_drafters_?  What on earth for?  They would have no idea what the
licensor intended.

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