On 11/26/2012 10:04 PM, Luis Villa wrote:
Attention conservation notice: minor drafting quibbling follows.
Secs. 11.4 and 15 should probably be redrafted to remove shall.
Shall should only be used under very specific circumstances- basically
as a synonym for "has a duty to."
There is a very extensive discussion of this on p. 22-30 of Ken Adams'
Manual of Style for Contract Drafting
[
http://books.google.com/books?id=n7-jxMskU9MC&pg=PA22#v=onepage], and
a summary at
http://www.koncision.com/revisiting-use-of-shall-in-contract-drafting/
The following summarizes the position [from
http://www.adamsdrafting.com/2008/11/18/shall-will-must-exchange-emails/
]:
"I recommend using [shall] to impose an obligation on the subject of
the sentence, as in 'Acme shall purchase the Shares'. The initial test
for disciplined use of shall is whether you can in your mind replace
it with “has [or have] a duty to.” This simple test goes a long way
towards restraining overuse of shall."
Secs. 11.4 and 15 fail this test, and so probably shouldn't use
"shall" as currently drafted:
Sec. 11:
"Your right to make copies necessarily incident to running Covered
Works [have a duty to] never be terminated."
Because I'm unclear on the purpose of 10.4 (see thread from some weeks
ago), I can't offer advice on how to improve it.
Hmm, I may have forgotten to address that on the mailing list.
The purpose of 11.4 (as it is now numbered since we have rid
copyleft-next of the tradition of numbering from 0) is to make clear
that the right to run, what I believe the FSF calls "freedom 0"
(although perhaps the FSF should call it "freedom 1"), can never be
terminated (even the right to run works previously modified by you
after you lose your right to prepare derivative works).
GPLv2 strongly implies that the right to run the received Program is
not terminable. GPLv3 makes this more explicit:
"This License explicitly affirms your unlimited permission to run the
unmodified Program....
"You may make, run and propagate covered works that you do not convey,
without conditions so long as your license otherwise remains in
force...."
In both cases, the possibility exists that permission to run
derivative works/works based on the Program, to the extent such
permission must be obtained from the copyright holder, can be
terminated if the license is violated. Indeed, GPLv3 Discussion Draft
1 contained a controversial patent retaliation clause that made use of
such a mechanism.
Copyleft-next departs from the GPL tradition by extending 'freedom 0'
to all Covered Works. The difference may be largely theoretical,
perhaps, but I thought it was worth making this change.
So 11.4 is trying to say that the right to run Covered Works is
unconditional and perpetual. It cannot ever be terminated for any
reason. You may lose the right to *make* Derived Works. But to the
extent that the copying that necessarily occurs due to the mere act of
running the software is an exclusive right of the copyright holder (an
issue as to which I understand different US courts have reached
different conclusions), the right to engage in such copying is
licensed perpetually without restriction, never subject to termination.
There's probably a better way to express that if I had to go to this
length to explain the purpose. In any case I think there are ways to
rephrase it without using 'shall'.
- Richard