Ross Boylan <RossBoylan at stanfordalumni.org> wrote:
> On Fri, May 13, 2005 at 03:27:20PM -0400, Lex Spoon wrote:
> > 
> > That aside, IMHO the real problem is that there are major parties that
> > we are afraid to even talk to.  Legal agreements ought to be a fallback
> > for informal agreements, but we are intentionally not talking to some
> > major copyright holders out of fear that they might explicitly say "no,
> > buzz off."
> 
> Is the preceding an explanation of why someone has not contacted Apple
> and Disney about getting them to relax their licenses/copyrights/etc?
> I always wondered why that hadn't been tried.  It seems like the first
> step to take.

Yes, I believe so.  Also, there has been a feeling that there should be
concensus among the group so that we know what to ask for, which causes
obvious difficulties for a group this large.



> On whether Cubans have a theoretical problem getting the software, the
> squeak license includes this clause: 
> "In particular, but without limitation, the Apple Software
> may not be exported or reexported (i) into (or to a national or
> resident of) any U.S. embargoed country or (ii) to anyone on the
> U.S. Treasury Department's list of Specially Designated Nationals or
> the U.S. Department of Commerce's Table of Denial Orders."


I had forgotten the in particular part.  But again, this is extreme
nitpicking of the legalese.  If there is no restriction in the export
regs anyway, does this "in particular" apply?  It sounds explanatory to
me, not an additional regulation on top of whatever the existing US regs
are.

For further thought, here it is from the horse's mouth on re-export
requirements for all goods, regardless of the license used:

	http://www.bxa.doc.gov/licensing/ReExportGuidance.htm

It is things like this that would appear to cause lawyers to put in
export clauses in their software licenses.  If you don't have such a
clause, then you run into potential problems with re-export.


> I'm not sure where you got the idea that export regulation doesn't
> apply to stuff that's freely available; 

Relevant material is listed at the end of this email.  I'm no lawyer,
but it seems to state it very clearly.


> at any rate, this clause means that squeak is not freely available.

No offense, but are you are a lawyer?  You are awefully certain here. 
It looks to me like, whatever the restrictions are, they apply equally
well to anything else originating in the US -- not just Squeak.  The
presence of the clause doesn't seem to add anything.


> > > On export restrictions: there are at least two issues.  One is
> > > self-protection.  If you put something with export restrictions up on
> > > a server where anyone can get it, you might be in trouble for
> > > violating the restriction.
> > 
> > Talk to a lawyer before you are so sure.
> 
> I don't need to talk to a lawyer to be sure I might get in trouble.

At some point you have to stop being paranoid and take part in society. 
There is nothing riskier about Squeak than using any public software
from anywhere else.

As we tediously poke around the legalese in this discussion, it is
showing that open-source software is in a bit of a mess in -- at the
least -- the US and in Europe.  Remember, though, that we have done the
sensible thing and hired lawyers to deal with this crud.  Apple's
lawyers were perfectly well aware of this situation--it's their job.



> > At best, when
> > you talk about people having freedom to export Squeak regardless of US
> > law, you are talking about the freedom to get the American contributors
> > in trouble.  
> 
> An interesting point, implying that most free software authors
> (e.g. GPL or BSD licenses) are at risk.  At the most general level, I
> suppose they are (by the same logic I used earlier).  On the other
> hand, I have not seen such concerns raised before about those
> licenses.

No -- but now you are talking about talk, not about real legal risk.  We
hired real lawyers and they have clued us in that it is a jungle out
there.  We should not shoot the messengers and rush to use a flakier
license.


> > IMHO, it would be great if we had extended clauses like
> > this to protect contributors from more countries.  Even though we don't
> > *plan* to harm each other, it doesn't hurt to have things in writing. 
> > (And if anyone *does* plan to do something sneaky and get many of us in
> > hot water, then they are not playing particularly nice...)
> > 
> > 
> > "Your freedom to swing your fist ends one inch from my nose".  

Out of curiosity, what do you think of this principle?  Is that not
enough freedom from a license for you to use it?  Do you think that
Debian should be insisting on more?



> Now that I look at it, this does *not* say the extent is limited to
> the extent it is your fault.  

You skipped half the quote!  Go back and start at TO THE EXTENT IT
ARISES OUT OF:

> "You agree to indemnify and hold Apple harmless from any and all
> damages, liabilities, costs and expenses (including but not limited to
> attorneys' fees and costs of suit) incurred by Apple as a result of
> any claim, proceeding, and/or judgment to the extent it arises out of
> or is connected in any manner with the operation, use, distribution or
> modification of Modified Software, or the combination of Apple
> Software or Modified Software with other programs"



> Even if it did (or that's what it
> means), the meaning would be subject to dispute.  For example, if you
> put squeak up, unaltered, on a server, and that drew someone's
> attention to sue Apple for whatever bizarre reason, then Apple could
> argue that your actions got them in trouble.  I believe this is why
> Debian doesn't want to be a distributor.

First, Debian has not made a decision--they descended into a flame war
and defaulted to doing nothing.  Go read the debian-legal archives if
you like.

Aside from that, IMHO this is the way things should be.  If you do
something that gets someone else sued, then that was not a nice way to
thank them for giving you stuff for free.  In the example you give, it
sounds like your posting it did not contribute to Apple getting sued, so
you would not be liable.

By the way, if you read the whole clause, there are other reasons in the
indemnification clause to reduce your fear level.  Not your only is
liability limited "to the extent" of your involvement, but Apple has to
allow you to try the case yourself before they can take any support from
you.  I find it extremely unlikely that Apple will open themselves to
this risk and this PR problem--and anyway, if they ever try it on me I
will gleefully accept and then go to court saying "I plead that Apple is
guilty" and go home.



> > But if we must
> > choose among licenses, I am comfortable choosing one that was desiged by
> > friendly, professional lawyers.
> 
> Umh, that would be lawyers looking after Apple's or Disney's interest,
> not ours or squeak's.

There's no need to be flippant.  You are surely aware that Squeak was an
Apple interest at the time, and that these lawyers were acting at the
behest of Squeak's founders.  That's as friendly--not to mention
capable--as it gets.


> >  I worry what will happen to projects
> > using other licenses once the court cases start happening; they have
> > good hearts, but good hearts are not going to make their flaky licenses
> > more robust.
> 
> At least some of the other licenses have had quite a lot of thought
> and legal expertise go into them, I believe.  I know the GPL does, and
> I assume the University of California reviewed the Berkeley license
> (probably MIT for X as well).


Attention after the fact, not during the drafting.  The licenses were
drafted before there was so much attention paid to these licenses. 
Squeak-L, on the other hand, was drafted by the lawyers of a huge
company that is based almost entirely on IP.


I mentioned earlier that the export regs probably don't apply to Squeak
anyway.  Here's a web site about US export regulations:

	http://www.bxa.doc.gov/

If you download part 734 of the regulations, you will see that 734.7
says:


	(b) Software and information is published when
	it is available for general distribution either for
	free or at a price that does not exceed the cost of
	reproduction and distribution. See Supplement
	No. 1 to this part, Questions G(1) through G(3).

That sounds like free software, yes?  The cited supplement then says:

	Question G(1): Is the export or reexport of
	software in machine readable code subject to the
	EAR when the source code for such software is
	publicly available?
	  Answer: If the source code of a software
	  program is publicly available, then the machine
	  readable code compiled from the source code is
	  software that is publicly available and therefore
	  not subject to the EAR.


I'm no lawyer, but that seems pretty straightforward.  FYI, the same
exemption seems to apply to any publically available work--I merely
quoted the part that talks specifically about open-source software.



Lex