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My understanding of licensing law is that something like 3.0 -> 4.0 is very unlikely to be a winnable case in the US. Programmers think like machines. Lawyers
by frognumber 2y ago
My understanding of licensing law is that something like 3.0 -> 4.0 is very unlikely to be a winnable case in the US.
Programmers think like machines. Lawyers don't. A lot of confusion comes from this. To be clear, there are places where law is machine-like, but I believe licensing is not one of them.
If two licenses are substantively equivalent, a court is likely to rule that it's a-okay. One would most likely need to show a substantive difference to have a case.
IANAL, but this is based on one conversation with a law professor specializing in this stuff, so it's also not completely uninformed. But it matches up with what you wrote. If your history is right, the 2019 changes is where there would be a case.
The joyful part here is that there are 200 countries in the world, and in many, the 3.0->4.0 would be a valid complaint. I suspect this would not fly in most common law jurisdictions (British Empire), but it would be fine in many statutory law ones (e.g. France). In the internet age, you can be sued anywhere!
- sidewndr46 2y agoIt is worth remembering that law professors have a vested interest in making sure the system work as you described. If contract law was straightforward, they'd be out of job.
- frognumber 2y agoI agreed in the abstract, but not in the specific (the specific professor was one of integrity, and sufficiently famous this was not an issue). However, it's worth noting the universe is a cesspool of corruption. If you pretend it works the way it ought to and not the way it does, you won't have a very good time or be very successful. The entire legal system is f-ed, and if you pretend it's anything else, you'll end up in prison or worse.
- AnarchismIsCool 2y agoThat's an admirable goal but if there are any "bugs" in the contract you probably don't want it executed mindlessly. Human language isn't code and even code isn't always perfect so I'd rather not be legally required to throw someone out a window because someone couldn't spell "defederate".
- 9991 2y agoIf there wasn’t a substantive difference, then there’s no need to make the change.
- ZiiS 2y agoA super literal reading of some bad wording in 3.0 created an effect the authors say they did not intend and fixed in 4.0. Given the authors did not intend this interpritation a judge is likly to assume people using the licence before it came to light also did not, hence switching to 4.0 is fine. Conversly now this is widiy known continuing to use 3.0 could be seen as explicitly choosing the novel interpritation (arguably this would be a substantive change).
- moefh 2y ago> a judge is likly to assume people using the licence before it came to light also did not Why would the judge have to assume anything? The person suing could simply tell the judge they did mean to use the older interpretation, and that they disagree with the "fix". They're the ones that get to decide, since they agreed to post content using that specific license, not the "fixed" one.
- ZiiS 2y agoA license is between two parties neither gets to choose exactly how it is interprited.
- moefh 2y agoBut the people suing aren't trying to choose how the license is interpreted, they're trying to prevent the other party from changing the text. If the change is meant to "fix" how the text should be interpreted (which is what you said), then they're the ones trying to choose the exact interpretation.
- reddalo 2y agoThe fact itself that programmers keep insisting on writing "IANAL" is maybe an example of that. A court would probably not agree on the fact that writing "IANAL", not the full sentence, is a sufficient disclaimer.
- jszymborski 2y agoI personally write "IANAL", not to reduce my personal legal liability, but rather to give a heads up to those reading that I am not an expert, that I am likely wrong, and that you likely shouldn't listen to me.
- technion 2y agoI feel there's a common thread that maybe should be some kind of internet law that people who make a point of noting they are not experts, are more often correct than people who confidently write as though they are. You see this particularly with crypto, where "I am not a crypto expert" is usually accompanied by a more factual statement than one from the self proclaimed expert elsewhere in the thread.
- lifthrasiir 2y ago> If two licenses are substantively equivalent, a court is likely to rule that it's a-okay. One would most likely need to show a substantive difference to have a case. Which does exist and can affect the ruling. CC notably didn't grant sui generis database rights until 4.0, and I'm aware of at least one case where this could have mattered in South Korea because the plaintiff argued that these rights were never granted to and thus violated by the defendant. Ultimately it was found that the plaintiff didn't have database rights anyway, but could have been else.