On Sat, Feb 23, 2013 at 3:50 PM, Richard Fontana <fontana@sharpeleven.org> wrote:
On Thu, Feb 21, 2013 at 09:26:01AM -0500, Pamela Chestek wrote:

> When I was on the proprietary side of the house I just assumed (without
> agreeing) that the FAQs were the proper interpretation. It was like my neighbor
> who thought the property line was in a different place than what we thought; if
> I just observed his boundary line he wouldn't come out on his porch when he was
> drunk and yell at me for crossing it, and I would tolerate him coming around
> the fence and mowing the skinny little strip of grass between the fence and our
> driveway.  And I suppose ultimately someday he would adversely possess that
> little plot of land, which is the point of the FAQs....

The complication for the GPL is that by some point that I assume took
place before 1995, FSF-copyrighted software came to represent a
minority of all the GPL-licensed software in the universe by any
reasonable metric, and the FSF's copyright share of the GPL pie has
only decreased further over time. (The FSF regarded this as a sign of
great success, it should be noted.)

I recognized this, but it also seemed to me that the FSF interpretation was the most restrictive, so if I abided by its interpretation I was probably on safe ground.

Assume for sake of argument that a FAQ comes into existence. What do
you think of the license explicitly referencing it in a way that
promotes its authoritativeness?

If you're trying to make the FAQs authoritative, then I consider it somewhat underhanded. Although it's commonplace, I don't like incorporation by reference of documents that can be changed and I believe that courts are interpreting them as what existed at the time you manifested assent to the primary contract (which means there is probably a proof problem). If it's that important, put it in the original document.  And I consider it cheating if your goal is low word count. ;)

I think of the collection of materials in the same way I think of statutory interpretation. I was taught that the words control, but if there is ambiguity one looks to the legislative history, then the policy, as additional tools for interpretation, particularly about intent. Contract interpretation is similar; if the words are clear you stay in the four corners, otherwise you might look at extrinsic evidence including custom and practice in the industry. So I think of the role of the FAQs as the legislative history that is showing the intent of the drafters, or a description of what the custom and practice in the industry is (with probably no small amount of actually creating that custom and practice in the first place, too). All of this should work in your favor; if there is ambiguity it can mean that a loophole you didn't see in the drafting is closed based on your intent, not a crabbed or overly literal reading.

For this case, then, I think it would be useful to point out that the FAQs are meant to be relied upon for this interpretative function, something along the lines of "to interpret this document, look at the FAQs which explain what we were trying to accomplish." This documents that they indeed have weight that should be considered in the interpretation. But you only get there if the language itself isn't clear and you're allowed to consider extrinsic evidence, in which case the FAQs would probably be considered fairly illuminating whether you had mentioned them or not. So is it worth the word count?