I note that the plaintiff in the Jacobsen v Katzer case won on appeal to the
CAFC. So reading the judge's decision in the district court is kind of
irrelevant at this point.


Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Rd., Ukiah, CA 95482
Office: 707-485-1242
Linkedin profile: http://linkd.in/XXpHyu 

-----Original Message-----
From: Ben Tilly [mailto:bti...@gmail.com] 
Sent: Thursday, March 07, 2013 12:23 PM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] what would de-listing of licenses look like?

One can reasonably hope that seeing the desired legal reasoning clearly
spelled out in the license would lead the judge towards the decision that we
want.  But when I (admittedly as a non-lawyer) read that section of that
decision, there is nothing that I see that would have prevented that judge
from reaching that conclusion with those presented facts if the license in
question was the much more carefully drafted GPL v2.

BTW thank you for having been part of the effort to ensure that open source
licenses actually can be enforced in US courts under copyright law.  It is a
critical precedent, and I'm very glad that it was set in the right

On Thu, Mar 7, 2013 at 11:57 AM, Bruce Perens <br...@perens.com> wrote:
> Ben,
> Yes, my testimony was to establish the economic interest in 
> attribution of Open Source software. However, it's going too far to 
> say that the license terms were not a problem. The judge's finding 
> starting at "Plaintiff's Claim Sounds in Contract, Not Copyright" is 
> that the Artistic License 1.0 text is self-invalidating. It's not so 
> clear that a better drafted license would have reduced us to basing 
> the appeal on the economic value of attribution alone.
> Thanks
> Bruce
> Ben Tilly <bti...@gmail.com> wrote:
>> I do not believe that you are fairly describing the cause of what 
>> happened.  At issue was not the drafting of the license, it was the 
>> fact that it was the first time that the legal idea of "follow the 
>> license or we sue for copyright" had ever been tested in a US court 
>> for software that had been given away to the world on generous terms.
>> The judge's ruling was based on the fact that software was given 
>> away, for free, with no expectation of a reward.  Therefore there was 
>> no loss in its being appropriated by a third party.  The fact that 
>> the software was available to everyone on generous terms meant that 
>> there was no cause under copyright law.  The judge ruled that the 
>> license could be viewed as a contract, but of course the basic 
>> elements of a valid contract were missing and so you couldn't sue under
that either.
>> If
>> the hobbyist had used the GPL as a license, the same facts would have 
>> existed, and the judge could easily have ruled the same way.  In fact 
>> the reason why the case was so important is exactly because the 
>> precedent undermined the enforceability of all open source licenses 
>> where no contract existed.
>> For verification, the judge's ruling and reasoning are available at 
>> http://jmri.sourceforge.net/k/docket/158.pdf.
>> On Wed, Mar 6, 2013 at 10:09 PM, Bruce Perens <br...@perens.com> wrote:
>>> The license isn't really "standing up" when you have to file a writ 
>>> of certiorari after a judge throws his hands up at the license text 
>>> and pronounces it to be tantamount to a dedication to the public 
>>> domain. That was no easy appeal to win, and the Open S  ource 
>>> developer was seriously damaged by the cost and the 5-year process. 
>>> It cost me a good deal of time and work too.
>>> A license that stands up would, I hope, require much less time to 
>>> dispute and would be parsed as intended by the court.
>>> So, what the Artistic License 1.0 made much more difficult for the 
>>> poor Open Source developer is exactly what I'd like to fix. And yet 
>>> the Artistic
>>> 1.0
>>> is not the one I thought of first upon seeing this discussion in 
>>> progress.
>>> We have much worse.
>>> Thanks
>>> Bruce
>>> John Cowan <co...@mercury.ccil.org> wrote:
>>>> Bruce Perens scripsit:
>>>>> 1. They are ambiguous or likely to perform in court in unexpected 
>>>>> ways,
>>>>>   should
>>>>> they ever be litigated. And thus they are harmful to their users. 
>>>>> De-listing is a prompt to the organization that originally created 
>>>>> the license to replace it with an accepted license or to submit a 
>>>>> new version with greater legal competence in its construction. 
>>>>> These would be the "crayon" licenses, mostly, those written 
>>>>> without legal counsel.
>>>> And yet the Artistic License 1.0, which is riddled with ambiguities 
>>>> and a prototypical crayon license, is one of the few that has been 
>>>> tested in court -- and stood up.
>>> --
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