On Fri, May 13, 2005 at 03:27:20PM -0400, Lex Spoon wrote:
> 
> 
> Ross Boylan <RossBoylan at stanfordalumni.org> wrote:
> > The real solution to all this is a saner legal environment.  To some
> > extent, Europe already has this, as numerous click through terms have
> > been tossed by courts their as being egregious.  In the US we are not
> > so lucky.
> 
> I am not so sure Europe is a legal panacaea.  Some of the countries have
> legalized free DVD players, which is nice.  On the other hand, their
> patent office seems to be racing to repeat our worst mistakes about IP.

Yes, there are problems everywhere.  saner != sane.

> 
> 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.

...
> > Lex made light of the export restriction because
> > it prevented (if it worked, which it obviously can't) Fidel Castro
> > from getting stuff.  Well, yes, but it also prohibits anyone in Cuba,
> > or any Cuban, from getting the software. 
> 
> This is not what I said at all.  Among other things, I said that I'm not
> sure Cubans even have *theoretical* problem with getting the software. 
> Export regulation normally does not apply to things that are already
> freely available.  Is there something different about Squeak that would
> change this?

You also said "Or are they going to reject all US-based projects
because we embargo rights-abusing dictators?  Does a free software
conference really want to say that freedom means you have to support
an oppresive dictator?"  I was referring to that.

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."

Assuming Cuba is an embargoed country, which I think it is, this means
that all Cubans and all people living in Cuba are off limits.  Giving
it to a Cuban citizen in the US, or anywhere outside of Cuba, also
looks off limits, though that's less clear.

I'm not sure where you got the idea that export regulation doesn't
apply to stuff that's freely available; at any rate, this clause means
that squeak is not freely available.  National security regulations
are potentially relevant too.

 
> > 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.
As my father, a lawyer, explained to me, anyone can sue anybody for
anything.  Isn't the US a great country? :) My judgement of risk is at
least as much about the way "my" government operates as the law (the
two being rather weakly connected).


>  Say what you will, surely
> Apple's lawyers tried to protect Apple.  

Surely.  And it may be sufficient protection if it came down to a
court case. but in my book I'm in trouble if someone tries to
prosecute or sue me, even if the action is baseless.

> Without the export clause,
> someone can download Squeak, re-export it, and thus get Apple in trouble
> for letting this happen.  With the clause, Apple can claim that the
> downloaders are at least *saying* they won't re-export it.  (Yes, yes,
> assuming they read it, assuming it is binding, etc.   I'm not saying
> it's foolproof!)
> 
> Regarding your theory, remember that the clause does not suddenly cause
> Squeak to be subject to US export law.  It already is!

That may be, though it seems likely that the notice in the license
makes some legal difference.  

> 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.

> 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".  This is a
> common proverb among Americans and is the principle that Squeak-L
> implements.  You can do what you want with Squeak, just don't harm the
> people who gave it to you.  Download it for free and without obnoxious
> click-throughs and registrations, but you must promise not to re-export
> the software and get the creators in trouble.  Write any code you like
> in it, but you must help protect the creators if what you do gets them
> sued.  (If it's their fault, then don't worry about it.)
Actually, the "if what you do gets them sued" and the part in
parenthesis is not what the license says.  See below. 

> 
> While I'm no lawyer, this intuitively seems like a good basis for people
> to work together.  It allows a great deal of freedom while disallowing
> just a few specific ways that we might try to hurt each other.

"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"

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

legal disputes -> lawyers -> lots of money.

> 
> I really don't care much about the differences among most open-source
> licenses--I really think, perhaps a bit like Samir, that "open-source
> license" is almost oxymoronic.  If you want to give software away, then
> give it away and stop putting so many constraints on it.  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.

>  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).

Ross Boylan