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RE: Option 3

From: Dailey, David P. <david.dailey@sru.edu>
Date: Wed, 23 Mar 2011 08:59:07 -0400
To: Jonas Sicking <jonas@sicking.cc>, Sam Ruby <rubys@intertwingly.net>
CC: "mjs@apple.com" <mjs@apple.com>, "lrosen@rosenlaw.com" <lrosen@rosenlaw.com>, "public-html@w3.org" <public-html@w3.org>, "member-psig@w3.org" <member-psig@w3.org>
Message-ID: <C64F09DF6833C44782B27844765560BC12E061C4AF@MSFEXCH01.srunet.sruad.edu>
Jonas Sicking writes:

>Looking forward to a more detailed explanation once this is made
>public. As is demonstrated in this thread, there are several questions
>could do with answers.

Agreed. I see a few permissions that are explicitly granted by Option 3, but no overt statement of which of the copyright holder's exclusive rights are intentionally being protected. The status of the use cases including those from all four sources seem to be left unaddressed.

>[...] In other words, since there are
>no court cases to rely on, unless Option 3 clearly and unambiguously
>allows copying content into a GPLed code, I would expect lawyers to
?advice me not to take the risk involved in doing so.

Exactly. The statement (from [1]) "No right to create modifications or derivatives of W3C documents is granted pursuant to this license" would tend to exclude most of the use cases outlined in the previous discussion from 2009. 

The statement (from [2]) 

"anyone may prepare and distribute derivative
works and portions of this document in software, in supporting materials
accompanying software, and in documentation of software"

leaves it slightly ambiguous in my mind as to whether or not one writing a guide to HTML5 could quote a large excerpt of the spec, since it is not necessarily clear that one is documenting "software". In such a case one is explaining the creation of markup, and this is conceivably, in some court's eyes, different from documenting software.

I am now more curious about Option 1 and Option 2, but I gather from what Sam writes [3]: "While no other options have yet to be presented to this WG, my hope is that this will happen shortly 
(as in, the next few weeks)."

I am still of the belief that not only what is permissible, but what is not permissible should be outlined, at least, in of a statement of intent, by the license. The derivative rights petitioned by the previously presented use cases, should, perhaps, each be specifically addressed by PSIG's response to HTML5. 

If it is PSIG's decision that, as Larry Rosen says [4],

"it is the membership of W3C that voted
overwhelmingly in a survey that such a generous permission slip would be
harmful to W3C and to standards generally. They don't want to encourage

then it would appear that this WG may be headed toward a stalemate. The compromise might be to recognize that there are both advantages and disadvantages to forking specs and to collectively agree upon which sorts of things are sought to be precluded by the license. I am still of the opinion that licensing specs and text is different than licensing software and that trying to shrink wrap the HTML5 spec into a license designed for open source software may represent a terrible mismatch of intent. I suspect PSIG had many of these conversations in a much more informed way, seeing how there was also the issue of trademark protection going on.

I am not sure we have found disagreement yet with this proposed restriction on derivative work [5]:

> I presume what we all wish to avoid is the following:
> " An organization or individual modifies the content of the spec in ways 
> that intentionally misrepresent its content and that mislead others as a 
> result. We do not, I think, want to encourage prosecution against the 
> well-meaning author of a book who misunderstands the specification, but 
> rather against those who might seek to perpetuate coding practices 
> contrary to the spec which might, for example, favor one browser 
> implementation over another."

Wasn't this last scenario part of the case of DOJ v Microsoft? [6] (Another reason that technically savvy people might fear the fragmentation of specs that I meant to include in my enumeration [7] of theoretical grounds for disliking spec mutations.) 


I had a funny idea just now, but then I realized I might be the only one who found it funny, so I exercised the good judgment to not write it. I leave this little evidence of its existence though, should anyone wish to know more. 

[1] http://www.w3.org/Consortium/Legal/2002/copyright-documents-20021231 
[2] http://lists.w3.org/Archives/Public/public-html/2011Mar/0143.html 
[3] http://lists.w3.org/Archives/Public/public-html/2011Mar/0492.html 
[4] http://lists.w3.org/Archives/Public/public-html/2011Mar/0479.html 
[5] http://lists.w3.org/Archives/Public/public-html/2009Feb/0324.html 
[6] http://en.wikipedia.org/wiki/United_States_v._Microsoft 
[7] http://lists.w3.org/Archives/Public/public-html/2011Mar/0517.html 
Received on Wednesday, 23 March 2011 12:59:42 UTC

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