On Mon, Oct 15, 2012 at 2:04 PM, Richard Fontana
On 10/15/2012 11:21 AM, Luis Villa wrote:
> Pursuant to an email and pull request I'd like to send about the use
> of "shall", I'm trying to grok Sec. 10.4.
> Is the idea to remedy the line of cases that suggest that licensees
> are not protected by 17 USC 117, and particularly 17 USC 117(a)(1)?
> (See Part 3 of http://scholar.google.com/scholar_case?case=9093856475999715707
> for something of a summary of these cases.)
> Or is it something else? If so, what is it?
I wasn't consciously thinking of 17 USC 117. Rather, this is a
generalization of something in GPLv2 and GPLv3.
Generalization? Or increased specificity? v2 and v3 refer to running
generally, but this refers to making copies for the purpose of
running. That seems like a more limited carveout.
Does anyone think that's bad on a policy level? I suppose 10.4
be worded better.
I don't think it's bad, I'm just not sure what the affirmative
impact is, given that the purpose of 17 USC 117(a) was to make it
clear that copying for the purpose of running is permitted by default.
So, if all it is doing is restating the default, then (given this
license's focus on concision) that seems like a strong reason for it
to go away.
This comes with the strong caveat that I've never deeply studied 17
USC 117 and the cases interpreting it (or the EU Copyright Directive's
equivalent language), particularly with regards to licensing v.
ownership, and obviously getting this wrong would be quite harmful.
So the right solution probably involves spending some time (1)
figuring out exactly what the purpose is and (2) wordsmithing to match
that purpose - which is what I was (perhaps inartfully) aiming at with
the initial question.
Luis (email on "shall" forthcoming)
 Modulo the fairly obscure argument that after Vernor v. Autodesk,
an agreement has to somehow restrict use to be a license rather than a
first sale - see p. 120-124 of this article:
But I think
that's mediocre-to-bad law that would not stand up if actually
litigated in an open source context, so my instinct is that it should
not be taken into account when drafting (and I'm not sure there is
much you could do about it anyway without breaking the spirit of the