Re: [License-discuss] License compatibility - reg

2013-06-27 Thread Rick Moen
Quoting Ben Tilly (bti...@gmail.com):

 According to my recollection, she was definitely of the opinion that
 her statements about whether the license should be enforceable at all
 helped sway the judge to the position that it should be.

I'm pretty sure you have changed the subject.

If your assertion is merely that judges may consult various parties
including licence drafters about various things in a case about
copyright owner X's software licensing -- leaving aside the awkward
point (for you) that Ms. Randal was not a licence drafter in this or to
my knowledge any other case -- then, OK, sure.  Almost tautologically
true, actually.

Problem:  This was simply not, to the best of my recollection, what was
being talked about upthread.

Rather, it was some vaguely described situation where one Mr.
Satyanarayana was said to be 'combining in some way' codebases under
various licences one of which was GPLv3 from FSF, to which Matthew and
then you, if I understood correctly, asserted that someone wishing to
determine what obligaions matter (including, say, judges) should listen
to' FSF.

To which I said, when copyright violation gets litigated, judges consult
competent and relevant evidence about what licensors' terms were,
starting with the written licence text and (if necessary to resolve
ambiguity) other competent and relevant indicators about what licensors
intended, such as their other writings, statements, and actions.

FSF is not in the general case useful in that regard.  Hence my point.

How you got from there to the Jacobsen case and Alison Randal, notable
Perl persona but not licensor, I am not sure I know but pretty sure I
don't really need to know.

The rest of this seems to be a complete waste of time.  If you disagree,
feel welcome to carry on without me.

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Re: [License-discuss] License compatibility - reg

2013-06-27 Thread Ben Tilly
On Wed, Jun 26, 2013 at 10:49 PM, Rick Moen r...@linuxmafia.com wrote:
 Quoting Ben Tilly (bti...@gmail.com):

 For example I point to the efforts of Allison Randal of The Perl
 Foundation in the case Jacobsen v. Katzer in litigation regarding the
 Artistic License.

 And, just another little point.  You _are_ aware that Randal, despite
 her many accomplishments, was not drafter of that licence, right?
 Assuming you knew that, then what are you going on about, Ben?

If you look back to my first email in this thread where I started off
with the phrase, ...where someone who in some way represents the
drafter...

I was thinking about Allison, who in her position on The Perl
Foundation and as drafter of a much improved version of the Artistic
license does indeed represent Larry Wall's interests in this matter.
Doubly so since the initial precedent could have had serious
implications for Perl.

 And if hypothetically Alison Randal rather than Larry Wall _had_ been
 drafter of that disasterously awful licence -- and I'm rather glad for
 her sake that she wasn't -- why would the judge consider her a competent
 witness to testify about what was on Robert Jacobsen's and the other
 JRML coders' minds when they released Java code under AL 1.0?  Are they
 all golf buddies?  In the same Masonic lodge?  Group therapy?

What have I have said that could possibly support the impression that
I thought that the judge considered her a witness to Robert Jacobsen's
state of mind???

If you truly think that I was saying that, please re-read until you
understand that I was not.  After that we can discuss the merits of my
actual position.

(Note that Robert Jacobsen's state of mind was never a relevant
question.  His lawyers followed the standard FSF argument that
Katzer's violation of the license left him with no permission to do
things that he did which require permission under copyright law, and
therefore left him open to liability for copyright infringement.  As
http://jmri.sourceforge.net/k/docket/158.pdf demonstrates, this theory
did not initially fare well.)

 You see where I'm going with that, I hope.  You know, that whole
 'competent and relevant' thing.  If not, I'd _truly_ better give this up.
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Re: [License-discuss] License compatibility - reg

2013-06-27 Thread Ben Tilly
On Wed, Jun 26, 2013 at 11:14 PM, Rick Moen r...@linuxmafia.com wrote:
 Quoting Ben Tilly (bti...@gmail.com):

 According to my recollection, she was definitely of the opinion that
 her statements about whether the license should be enforceable at all
 helped sway the judge to the position that it should be.

 I'm pretty sure you have changed the subject.

That may be.  I jumped in at a point where it looked to me that you
were saying that the views of drafters (and by extension maintainers)
is irrelevant, with an example of how it could prove relevant.

But reading the upthread discussion in detail that I had not before
jumping in, I can't come up with any realy examples where the views of
drafters actually proved relevant to the facts of any case.
Furthermore while I can constructed strained threads of hypotheticals
in which it could potentially be argued to matter, they bear great
resemblance to the chain of events leading from a flap of a
butterfly's wings to a storm halfway around the world some months
later.

 If your assertion is merely that judges may consult various parties
 including licence drafters about various things in a case about
 copyright owner X's software licensing -- leaving aside the awkward
 point (for you) that Ms. Randal was not a licence drafter in this or to
 my knowledge any other case -- then, OK, sure.  Almost tautologically
 true, actually.

Not just may consult but may be approached by.  And yes,
tautologically true.

 Problem:  This was simply not, to the best of my recollection, what was
 being talked about upthread.

 Rather, it was some vaguely described situation where one Mr.
 Satyanarayana was said to be 'combining in some way' codebases under
 various licences one of which was GPLv3 from FSF, to which Matthew and
 then you, if I understood correctly, asserted that someone wishing to
 determine what obligaions matter (including, say, judges) should listen
 to' FSF.

Ah.

There is actually good reason to pay attention to the FSF on this
issue.  They know their own license, have done their own analysis of
precedent, have put forth a position that they think could be argued
for, and there are a lot of people who give their words weight.  So
staying within the bounds that the FSF sets will lessen the likelihood
that someone will ever think they have something to sue you over, and
lessens the likelihood that if someone does sue you, they will find a
potentially successful argument which you failed to notice in advance.

Furthermore if the FSF is a copyright holder to code that you're using
(they do have copyrights on quite a bit of it), what they have
publicly said is a particularly good predictor of what will keep them
from getting annoyed at you.

None of which matters if you get to litigation.  But a lot of what
lawyers do is reduce the possibility of future disputes.  Not
challenging the FSF guidelines would be a safe way to do that.  Even
if you are morally certain that you would, in fact, win on a
particular point.

 To which I said, when copyright violation gets litigated, judges consult
 competent and relevant evidence about what licensors' terms were,
 starting with the written licence text and (if necessary to resolve
 ambiguity) other competent and relevant indicators about what licensors
 intended, such as their other writings, statements, and actions.

The threat of litigation is, of course, important to the enforcement
of copyrights.  However it is rare for open source software to be
enforced through actual lawsuits.

 FSF is not in the general case useful in that regard.  Hence my point.

 How you got from there to the Jacobsen case and Alison Randal, notable
 Perl persona but not licensor, I am not sure I know but pretty sure I
 don't really need to know.

 The rest of this seems to be a complete waste of time.  If you disagree,
 feel welcome to carry on without me.

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Re: [License-discuss] License compatibility - reg

2013-06-27 Thread Rick Moen
Quoting Ben Tilly (bti...@gmail.com):

[Snipping the recap and same old, same old]

 There is actually good reason to pay attention to the FSF on this
 issue.

Ahem.

Well, I have great respect for many of the people in FSF, but they have
a long history of asserting what they would like to be the case as
established fact, most notably in the GPL FAQ.

[snip more of same]

 Furthermore if the FSF is a copyright holder to code that you're using
 (they do have copyrights on quite a bit of it), what they have
 publicly said is a particularly good predictor of what will keep them
 from getting annoyed at you.

But exactly zero about legal reality, and it might arguably be a
subtractive process.

 Not challenging the FSF guidelines would be a safe way to do that.

Doing exactly what someone else tells you to is _generally_ one way of
reducing the odds of that person being vexed by you, yes.  Thank you for
that intelligence.


 The threat of litigation is, of course, important to the enforcement
 of copyrights.  However it is rare for open source software to be
 enforced through actual lawsuits.

Ben, you're aware I'm not newly arrived from another planet, right?

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Re: [License-discuss] License compatibility - reg

2013-06-26 Thread Rick Moen
Quoting Lawrence Rosen (lro...@rosenlaw.com):

 WHICH of the licensors do you look to?
 
 For example, Mr. Satyanarayana plans to combine (in some way) Apache 2.0 and
 GPLv3 code under a GPLv2 license. Apache licensors say That's wonderful! Go
 ahead and do that!  The GPLv2 authors -- not a party to this transaction,
 by the way -- say We don't like that.
 
 Who does Satya listen to? And who does his downstream licensee listen to?

To whoever owns the copyrights.  His objective is to avoid infringing
any of their copyrights by complying with their conditions as to
their respective properties -- but only to the limit of that copyright's
reach in each case.

What must he then do in a situation where he 'combines in some way'
codebases under diverse licences?  That probebly depends a great deal on
the specific facts, which will tend to guide an estimate of where the
likely boundaries of 'derivative work' extends to and where it does not.

 And who does OSI suggest that any of us listen to on an important FOSS
 combination/project like this one?

I'll admit I've lost the track and cannot recall what the particulars
are.  (I blame either too much or too little caffeine.)

-- 
Cheers,  My daughter is invited to a samba party. I was 
Rick Moenexcited, thought it was a sysadmin party. 
r...@linuxmafia.com  Turns out it's something to do with dancing :-/
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Re: [License-discuss] License compatibility - reg

2013-06-26 Thread Matthew Flaschen
On 06/26/2013 03:48 PM, Rick Moen wrote:
 For a given copyrighted property or set of properties, a court is going
 to be looking to determine the licensors' actions (what they have
 permitted and subject to what conditions), and be primarily guided in
 the case of a written licence by the licence text, and to some degree
 possibly by other indicators such as licensors' actions and statements.

I agree the license text is obviously paramount, and ideally it's not
ambiguous.

 If I read your implication correctly, you are saying that the licence
 drafter's views, external to the licence text, are relevant to
 determining what the licensors have decreed in choosing that licence.
 It seems to me that this claim falls through a large logic gap.
 (Also, it's at odds with jurisprudence.)

Possibly, if the court decides the license is ambiguous.  They might
look to the preamble, as well as the licensor's statements (as you said,
the licensor is often not the license drafter).

But I think it's reasonable to think they may consider the license
drafter's statements as well.  There's reason to think the licensor of a
work may well have adopted the license drafter's interpretation, unless
they say otherwise.  If the licensor specifically says they disagree
with the license drafter, that's another matter.

So I think a court may decide someone using the GPL adopts the FSF's
interpretation of an ambiguous part, unless that person says up front
they reject the FSF's interpretation.

 I'm not sure by what measure what you say is 'conservative', but the 
 bigger problem is that it doesn't appear to pass the test of relevance.
 (My view, yours for a small fee and waiver of reverse-engineering rights.)

If you're not certain how the license will be interpreted in court, I
think it's conservative (safer) not to do things the license drafter
interprets as forbidden.

Matt Flaschen
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Re: [License-discuss] License compatibility - reg

2013-06-26 Thread John Cowan
Rick Moen scripsit:

 (There are exceptional situations such as cases covered by the Statute
 of Frauds.  If you want to endure a really boring one-hour lecture, ask
 a legal expert to explain that for you.  If that's not enough masochism
 for one day, follow up with a request for something about the Rule
 against Perpetuities.)

They fed in the last of the punched data, warmed the computer up
from `Idle' to `Run,' and kicked him into it. Mose's eyes blinked
in hard meditation; his stomach rumbled softly; his memories
began to hiss and stutter. Powell and the others waited with
mounting suspense. Abruptly, Mose hiccupped. A soft bell began
to Ping-Ping-Ping-Ping-Ping-Ping--- and Mose's type began to
flail the virgin tape under it.

IF IT PLEASE THE COURT, Mose said, WITH PLEADERING OF NON
VULTS AND DEMURERS, LEGAL SIGNATURES. SS. LEADING CASE HAY
v. COHOES AND THE RULE IN SHELLEY'S CASE. URP.

What the--- Powell looked at Beck. He gets kittenish, Beck
explained. At a time like this! Happens now and then. We'll
try him again. They filled the computer's ear again, held the
warmup for a good five minutes and then kicked him into it.

--Alfred Bester, _The Demolished Man_

-- 
John Cowan  co...@ccil.org   http://www.ccil.org/~cowan
O beautiful for patriot's dream that sees beyond the years
Thine alabaster cities gleam undimmed by human tears!
America! America!  God mend thine every flaw,
Confirm thy soul in self-control, thy liberty in law!
--one of the verses not usually taught in U.S. schools
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Re: [License-discuss] License compatibility - reg

2013-06-26 Thread Luis Villa
On Wed, Jun 26, 2013 at 4:22 PM, Rick Moen r...@linuxmafia.com wrote:

 And who does OSI suggest that any of us listen to on an important FOSS
 combination/project like this one?

Are you suggesting OSI should give legal advice, Larry? :)

The advice I have given clients in the past is to listen to the
copyright holders. However, in cases where there is a large diversity
of copyright holders for some reason (e.g., Linux kernel, many major
web rendering engines), or where the exact set of copyright holders is
not known (e.g., you're setting organization-wide policy for an
unknown set of future projects) then treat the license author as a
proxy for the views of the copyright holders, as some fraction of the
copyright holders will likely follow the interpretation of the license
authors. Obviously this is a fact-specific issue, though; consult with
your own lawyer. :)

Luis
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Re: [License-discuss] License compatibility - reg

2013-06-26 Thread Ben Tilly
On Wed, Jun 26, 2013 at 4:46 PM, Rick Moen r...@linuxmafia.com wrote:
 Quoting Matthew Flaschen (matthew.flasc...@gatech.edu):

 Possibly, if the court decides the license is ambiguous.  They might
 look to the preamble, as well as the licensor's statements (as you said,
 the licensor is often not the license drafter).

 But I think it's reasonable to think they may consider the license
 drafter's statements as well.

 You may think that's reasonable, but in my years of study of business
 law[1], I cannot recall any case where the drafter of a boilerplate
 legal vehicle was consulted by any judge, in a situation where the intent
 of a party to some legal action is at issue, and the drafter was not a
 party.  Business contracts would be a prime example.  The judge looks to
 the text.  If the text is somehow murky, he/she looks to other guidance
 apparent in what the parties have written, said, and done elsewhere.

This may be true, but there are many cases where someone who in some
way represents the drafter of a boilerplate legal vehicle filed an
amicus brief that was given due weight by a judge.  The drafter does
this because it is in their interest to get precedents saying that the
legal vehicle actually means what they intended it to mean.  The judge
can think this matters because it sheds light on what the participants
may have thought they were agreeing to.

For example I point to the efforts of Allison Randal of The Perl
Foundation in the case Jacobsen v. Katzer in litigation regarding the
Artistic License.

[...]
 If you're not certain how the license will be interpreted in court, I
 think it's conservative (safer) not to do things the license drafter
 interprets as forbidden.

 Same logic error in my view, sorry.  The drafter is not a party to the
 issue in any way.

 But I'm glad to agree to disagree, pending the arrival of relevant
 caselaw that I firmly predict will occur exactly never because nobody is
 going to litigate based on such a, ahem, speculative theory of law.  (My
 view, etc.)

In the example that I pointed to, the judges (multiple, this was an
appeals court) came to the decision that Allison Randal supported,
using lines of reasoning that she also supported.  Did her support
cause the judges' to give those arguments extra weight?  It cannot be
proven one way or another.  But it is not impossible that it could
have.

 [1] No, I'm certainly not a lawyer.  I studied for and passed the
 Certified Public Accountant exam, for which one must study and master a
 fair amount of business law.  I'm not claiing expertise; just a more
 seasoned than average amateur and one who tends to avoid many of the
 more common errors.

I have significantly less legal training than you do.  Please feed my
comments through your knowledge and prior beliefs, then only give them
weight according to the degree to which they make sense to you.  And
before taking any action based on the conclusions that you come to,
feed that understanding through a competent lawyer.

Should that process lead you to to a conclusion that later proves
inadvisable, feel free to sue the lawyer.  That is, after all, what
you paid them for.
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Re: [License-discuss] License compatibility - reg

2013-06-26 Thread Lawrence Rosen
Luis Villa asked:
 Are you suggesting OSI should give legal advice, Larry? :)

I asked the question that way only to see if you are actually paying
attention here.

Members of this OSI list frequently give advice, although they preface it
with IANAL or please don't listen to me. When it comes to the GPL, that
advice is sometimes wrong. Especially when they advise us to pay attention
to certain legal opinions of the Free Software Foundation about copyright
law. :-)

 Obviously this is a fact-specific issue, though; consult with your own
lawyer. :)

I already have. I will again.

/Larry


-Original Message-
From: Luis Villa [mailto:l...@lu.is] 
Sent: Wednesday, June 26, 2013 5:43 PM
To: License Discuss
Subject: Re: [License-discuss] License compatibility - reg

On Wed, Jun 26, 2013 at 4:22 PM, Rick Moen r...@linuxmafia.com wrote:

 And who does OSI suggest that any of us listen to on an important 
 FOSS combination/project like this one?

Are you suggesting OSI should give legal advice, Larry? :)

The advice I have given clients in the past is to listen to the copyright
holders. However, in cases where there is a large diversity of copyright
holders for some reason (e.g., Linux kernel, many major web rendering
engines), or where the exact set of copyright holders is not known (e.g.,
you're setting organization-wide policy for an unknown set of future
projects) then treat the license author as a proxy for the views of the
copyright holders, as some fraction of the copyright holders will likely
follow the interpretation of the license authors. Obviously this is a
fact-specific issue, though; consult with your own lawyer. :)

Luis
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Re: [License-discuss] License compatibility - reg

2013-06-26 Thread Rick Moen
Quoting Ben Tilly (bti...@gmail.com):

 This may be true, but there are many cases where someone who in some
 way represents the drafter of a boilerplate legal vehicle filed an
 amicus brief that was given due weight by a judge.

On what question, though?  That matters, nei?

Upthread, Matthew states his view (and I'm trying in good faith here to
paraphrase; my apologies in advance if I err) that it's reasonable to
consider the licence drafter's views on the question of what the
licensor agreed to and subject to what conditions.

 The drafter does this because it is in their interest to get
 precedents saying that the legal vehicle actually means what they
 intended it to mean.  The judge can think this matters because it
 sheds light on what the participants may have thought they were
 agreeing to.

Like Matthew, you assert that this happens (you say 'may'), but you
cannot point to it occurring.  (See below.)  According to my
understanding of the basics in this area, it would be improbable
because, as mentioned, the drafter is just not (in the general case) a
party to the legal action in any way -- nor evan a qualified expert
witness on the question under discussion (what the licensor intended).  

Because the drafter couldn't possibly be.  You see.  Or maybe not.  I've
mentioned this datum a few times because, it seems to me, it should be
dispositive.  Maybe I'm hallucinating; maybe you and Matthew are.  I'm
glad to agree to disagree.  {hint}

 For example I point to the efforts of Allison Randal of The Perl
 Foundation in the case Jacobsen v. Katzer in litigation regarding the
 Artistic License.

I talked to Ms. Randal (very briefly) about that case at the time.  My
impression was that the judge did not consult her on the nature of what
Jacobsen had decreed in his licensing, but rather on other matters
entirely.

 In the example that I pointed to, the judges (multiple, this was an
 appeals court) came to the decision that Allison Randal supported,
 using lines of reasoning that she also supported.

Um, that's a heck of a handwave.  You have just talked all around the
actual point of contention:  Was Randal consulted to help the judge
determine the nature and purport of Jacobsen's licensing conditions? 
No, she was not.

(By the way, I try very strenously to neither need to sue my lawyers,
nor wish to.  Fortunately, they're lovely people and remain on my
Christmas list.  Well, my metaphorical one, anyway.)

-- 
Cheers,Foursquare is for people who wish they were Sims.
Rick Moen-- Kelly Oxford
r...@linuxmafia.com
McQ! (4x80)  
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Re: [License-discuss] License compatibility - reg

2013-06-26 Thread Rick Moen
Quoting Ben Tilly (bti...@gmail.com):

 For example I point to the efforts of Allison Randal of The Perl
 Foundation in the case Jacobsen v. Katzer in litigation regarding the
 Artistic License.

And, just another little point.  You _are_ aware that Randal, despite
her many accomplishments, was not drafter of that licence, right?
Assuming you knew that, then what are you going on about, Ben?

And if hypothetically Alison Randal rather than Larry Wall _had_ been
drafter of that disasterously awful licence -- and I'm rather glad for
her sake that she wasn't -- why would the judge consider her a competent
witness to testify about what was on Robert Jacobsen's and the other
JRML coders' minds when they released Java code under AL 1.0?  Are they
all golf buddies?  In the same Masonic lodge?  Group therapy?

You see where I'm going with that, I hope.  You know, that whole
'competent and relevant' thing.  If not, I'd _truly_ better give this up.
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Re: [License-discuss] License compatibility - reg

2013-06-26 Thread Ben Tilly
On Wed, Jun 26, 2013 at 9:35 PM, Rick Moen r...@linuxmafia.com wrote:
 Quoting Ben Tilly (bti...@gmail.com):

 This may be true, but there are many cases where someone who in some
 way represents the drafter of a boilerplate legal vehicle filed an
 amicus brief that was given due weight by a judge.

 On what question, though?  That matters, nei?

 Upthread, Matthew states his view (and I'm trying in good faith here to
 paraphrase; my apologies in advance if I err) that it's reasonable to
 consider the licence drafter's views on the question of what the
 licensor agreed to and subject to what conditions.

I would state that in a weaker form.  I would state that the license
drafter's views may prove to be not entirely irrelevant.  Both because
the license drafter's public proclamations may be introduced as a
pertinent fact in establishing what the likely intent and
understanding of the agreement was, and because the license drafter
may attempt to persuade the court of their views.

If you flip what I said, you could reasonably infer that the fact that
the license drafter thinks X usually will be irrelevant.  I would
emphatically agree with this.

 The drafter does this because it is in their interest to get
 precedents saying that the legal vehicle actually means what they
 intended it to mean.  The judge can think this matters because it
 sheds light on what the participants may have thought they were
 agreeing to.

 Like Matthew, you assert that this happens (you say 'may'), but you
 cannot point to it occurring.  (See below.)  According to my
 understanding of the basics in this area, it would be improbable
 because, as mentioned, the drafter is just not (in the general case) a
 party to the legal action in any way -- nor evan a qualified expert
 witness on the question under discussion (what the licensor intended).

In the general case no.  As to whether I can point to a relevant
example, I still believe that I did.  (See below.)

 Because the drafter couldn't possibly be.  You see.  Or maybe not.  I've
 mentioned this datum a few times because, it seems to me, it should be
 dispositive.  Maybe I'm hallucinating; maybe you and Matthew are.  I'm
 glad to agree to disagree.  {hint}

 For example I point to the efforts of Allison Randal of The Perl
 Foundation in the case Jacobsen v. Katzer in litigation regarding the
 Artistic License.

 I talked to Ms. Randal (very briefly) about that case at the time.  My
 impression was that the judge did not consult her on the nature of what
 Jacobsen had decreed in his licensing, but rather on other matters
 entirely.

I talked to her (also briefly) about that case both at that time and
later.  According to my recollection, she was definitely of the
opinion that her statements about whether the license should be
enforceable at all helped sway the judge to the position that it
should be.

Remember, the critical legal issue was not whether Katzer had done
things that they license said he shouldn't.  He clearly had and nobody
disputed that.  It was whether the existence of such a broad public
license precluded any possible right to sue under copyright law.  The
initial decision by the Hon. Jeffrey White was that the license did
preclude that, and without a case in copyright or any legally
enforceable contract, there was nothing for Jacobsen to sue over.

Thus my point, again.  The fact that Allison Randal strongly held the
beliefs that she did about the enforceability of the license caused
her to work hard to find legal arguments that may, in fact, have
swayed a judge.  If so, then the fact that she held those beliefs is
not entirely irrelevant to the decision that got handed down.  Though
clearly relevance would be through a tenuous chain of causation.

 In the example that I pointed to, the judges (multiple, this was an
 appeals court) came to the decision that Allison Randal supported,
 using lines of reasoning that she also supported.

 Um, that's a heck of a handwave.  You have just talked all around the
 actual point of contention:  Was Randal consulted to help the judge
 determine the nature and purport of Jacobsen's licensing conditions?
 No, she was not.

That's not the point of contention.  The point of contention is
whether Randal's beliefs were entirely irrelevant to the outcome of
the case.

We are in violent agreement that she was not directly consulted.  That
her beliefs were not a material fact in the case.  That the actual
arguments through which she acted on her beliefs derived none of their
force from the fact that they were her beliefs.  And so on and so
forth.

But the point of contention remains.  I claim that when the drafter of
a license becomes aware of possible precedent being established which
would affect their license, there is a good chance that said drafter
is likely to attempt to sway the court to what the drafter believes is
right by presenting their best arguments in an amicus brief.  There is
no particular reason to believe that this