On Thu, May 19, 2005 at 10:21:34AM -0400, Lex Spoon wrote:
> Ross, are you aware that Squeak's founders were working at Apple at the
> time?
Yes.
> And that they worked directly with Apple's lawyers in order to
> get a satisfactory open-source license? 
I do not know the particulars of how they worked with the lawyers.  Do
you?  The only thing I know is that one of the founders thinks all this
worrying over the legal stuff is silly.  I see his point, even if I
don't agree with it.

> You appear to be suspicious of
> Squeak-L's drafters just because they were working for a large
> corporation. 
"suspicion" suggests some believed sinister intent.  I just recognize
the reality that they were working for Apple.  Its being a large
corporation probably doesn't matter much for this.
> I agree with your characterization of lawyers' motives. 
That's the important thing.
> Don't overlook, however, that it was *our* large corporation, at the
> time, that they were working for.
I'd hardly call Apple "our" corporation.

> Yes, the license protects the licensor,  as any good license should do. 
> It also gives the freedoms to download Squeak with source code, modify
> it, and redistribute it.  There is nothing insidious here.  It was just
> lawyers -- our lawyers -- crafting a fair license.  It is shooting the
> messenger to reject this carefully crafted license just because it
> mentions things that are unpleasant.

I'm not rejecting the license; I'm taking it seriously.
 
> Your responses are getting flippant. 
Hmm, 2nd time you've characterized my statements as "flippant," and in
this case I don't even know what the reference is.  I  speculate it was
my example of a squeak-powered, animotronic army.  That was a joke,
though it had a serious point: judging whether or not something is
military-related is not entirely clearcut.

> I searched the US Gov's web site
> to find any export regulations I could that apply.  As far as I can
> find, the regs simply don't apply to non-military software.  Like you
> suggest, the regs appear to say that exporting Squeak (or SML-NJ, or
> Cecil) is fine, but exporting a missile-control program written in
> Squeak is restricted.

I think we agree, though I'm not as convinced it's clear cut.  But I'm
a bit confused.  I thought you were maintaining that the export
restriction clause was immaterial, because it applied whether or not
it was present in the license.  I also thought that fact was the bad
news you thought the lawyers were bringing us.  But here you seem to
be saying the export regs don't apply.

>  These restrictions apply to any software written
> in the US,
but I thought you said the restrictions don't apply...

> and all that Squeak's export clause adds to this is that you
> can't get American redistributors of Squeak into trouble by your
> actions.  That seems only reasonable.
> 
> 
> I don't see what the problem is that the license requires that the
> downloader not cause harm to Apple through their actions. 

That is not an accurate characterization of the indemnification
clause.  It may be an accurate characterization of the motives for the
export restrictions.

> That seems
> like an entirely reasonable requirement, and at any rate it appears to
> be a standard agreement.   Regarding the "to the extent of" language,
> remember that "Modified Software" is software that the licensee has
> created.  

You've hit on something I missed.  I parsed the sentence as
"You agree to indemnify ... Apple ... for  ... all damages ...
as a result of any claim ... to the extent it arises out of ...
the (operation), (use), (distribution) or (modification of Modified
Software)"

but a better reading of the end is 
"[(operation), (use), (distribution) or (modification)] of (Modified
Software)"

i.e., all those things apply only to Modified Software (as defined in
the first clause of the license).

But, it does NOT say the modifications must have been made by the
licensee.

Further, it goes on to say
"to the extent it arises out of .. [preceding stuff] .. or
the combination of Apple Software or Modified Software with other
programs".

It is possible that mere aggregation of squeak with other software
would be enough to satisfy this requirement.  And packaging squeak
into a deb, rpm, or any kind of installer seems to be enough to
trigger the section applying to Modified Software.

> Thus, the indemnification clause only applies to actions of
> the licensee (or enabled by the licensee), not to any old use of Squeak.
> if the software is "combined with other programs".But ....
>  I think this is completely fair.  If you do something to get Apple in
> trouble, then you are liable to the extent that you did so.
As noted, the language does not say you must be the one who made the
modifications, or even that modification (as opposed to combination)
is necessary.  And the "extent of" is not about the extent of your
involvement or responsibility.  It is about the extent the damages are
related to squeak as opposed to some unrelated Apple project.

I will also refer to my earlier argument that even if the extent were
limited to stuff you were responsible for, this is a very ambiguous
standard, and litigating ambiguity is expensive.

It may be that the damages this exposes you to are limited to some
reasonable standard of what's your responsibility.  I'd even guess
that is the case.  But that's not what the language seems to say, and
I certainly wouldn't want to count on it.
 
> In both cases, I admit I'm not a lawyer.
Ditto.

>  There might be some obscure
> problem here.  But that could be said about anything.  We did the
> smart thing and got advise from lawyers.
> 
> Overall, freedom means you can do what you want until you harm someone
> else.  You seem to be asking for anarchy, the ability to do absolutely
> anything.  Squeak-L is a free license, not an anarchistic one.  Is
> freedom not enough?
I can't use the it without assuming a somewhat opaque, and potentially
very large, liability.  That liability is not clearly related to any
reasonable sense of what I'd judge to be my responsibility.  This is a
limited form of freedom.

Given that we have many laws already allowing injured parties to
collect damages, anarchy is not a risk.

Calling concern about the license being pro-anarchy, or repeatedly
characterizing Apple's license as requiring you to take responsibility
for your own actions or not to harm Apple, is a rhetorical strategy at
odds with the text of the license. 

> 
> That's an interesting case about the Apple-fan web site; I'll take your
> word on it. 
http://www.eff.org/Censorship/Apple_v_Does/
http://news.com.com/Apple+sues+over+trade+secrets/2100-1047_3-5513582.html
http://www.gripe2ed.com/scoop/story/2005/1/10/0252/78421

>  I still find it very unlikely that Apple will turn over
> their defense to any outsider.  
That was your suggestion, and I thought it was a joke.

> Operationally, Squeak-L's
> indemnification clause does *not* equal "pay".  It gives multiple
> options.  You can pay off Apple's defense team if you want,  but you can
> also opt to defend it yourself.
You mean yourself, or with a lawyer?  The latter costs money, probably
lots of it.  The former costs time and lost income, in addition to
being foolhardy.  An old saw is that "A lawyer who represents himself
has a fool for a client."  By extension, a non-lawyer who represents
himself has an idiot for a client. [old saws are from sexist times]

> 
> I do think the matter under discussion is important.  It is important to
> distinguish things like "practically free" from "theoretically free"
> from "non-free but no one will ever invoke it".  
Here you've hit on a key difference between the legal perspective and
a personal or business perspective.  Most of us think in terms of
probabilities, giving less weight to stuff we think is unlikely.
>From the legal perspective, the game is to cover all possibilities,
no matter how remote.

In discussing licenses, I tend to adopt the latter perspective.

> Squeak is great
> regardless of how good or bad its license is, and I certainly don't want
> to misrepresent that license and get anyone in trouble.  As examples, a
> couple of things that would cause me to re-evaluate are: serious lawyers
> could analyze the license and weigh in, or a non-zero number of relevant
> court cases could happen.
There are more than zero court cases that are relevant to the extent
of showing that Apple will take actions against users, even if it's
bad PR.   More broadly, there are many cases in which legal minutia
have burned people big time.  I recently saw a show on companies
cutting retiree health benefits.  They have successfully argued they
could do this on the basis of documents the affected people never
saw and on the basis of very fine print.  They have argued that
contractually assured "lifetime benefits" were assured for the life
of the contract, not the person.  Proof that there a few readings too
absurd to see the inside of a courtroom.
 
> Right now, though, I do not see anything to worry about any more than
> other public activity.  Whenever you step outside your door or log your
> computer into the Internet, you are facing potential legal problems. 

True.  And we have our smallness as individuals to protect us too,
though again there is the recent counter-example of the recording
industry going after many individuals for copyright infringement.

> Beyond this general haze of liability that exists in today's world, I
> don't see what all the fuss is about with Squeak-L.  It's armchair
> lawyering,

As is any assessment of a license by a non-lawyer.  We either do that,
or hire a lawyer for every single agreement we encounter.  The
fuss is over a number of provisions that appear contrary to some
people's definition of free software (restrictions against certain
classes of individuals) or to open up a worrying, if probably
theoretical, liability (indemnification clause).  This does not
exhaust all the concerns I've seen expressed.

> and the truth is none of us really knows about Squeak-L--just
> like with any other open source license.  Until we know something more
> reliable, we ought to go with the spirit of the license and the advice
> of lawyers that were working on our side.
The point of the "spirit" remark appears to be to ignore sections of
the license that seem to contradict the spirit.  A more reasonable
approach is to take the whole thing seriously.  The lawyers were
working for Apple, not us, and as far as I know have given "us" no
direct advice.  They wrote the license; we get to deal with it.

This is all somewhat idle chatter until and unless someone is prepared
to do something about the license, like contacting Apple and Disney
with a serious proposal.

I'll add a final caution about lawyers, from experience.  Getting a
lawyer to commit to a definite interpretation, like "under this
clause, scenario X is OK" is almost impossible.  (Actually, I just got
advice from a lawyer at work about an agreement with Apple, and she
was very quick to correct me when I said that she had said a certain
thing would be OK.  She said that was her reading, but she couldn't
guarantee it.)  Lawyers tend to give reminders that anything is
possible in court, if it comes to that.  The most one can usually coax
out is "probably this is OK."

So ... if you think we've muddied the waters, just wait and see what a
lawyer can do :)

Ross

P.S. Yes, we know about the earlier discussions--I think we even
participated in them.