[copyleft-next] HBR cure 2013-02-18

Pamela Chestek pchestek at gmail.com
Sat Feb 23 22:48:50 UTC 2013


On Sat, Feb 23, 2013 at 3:50 PM, Richard Fontana <fontana at 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?

Pam
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