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From Eric McDonald <the.eric.mcdon...@gmail.com>
Subject Re: License under which the Apache License 2.0 is released?
Date Thu, 04 Oct 2012 00:37:54 GMT
On 10/3/2012 6:38 PM, Lawrence Rosen wrote:
> Noah Slater wrote:
>> So it seems the answer to our question is somewhere in state or
>> federal law, which I have no idea how to navigate.

Noah, I'm glad to see you were looking at WIPO materials earlier. I
would certainly be more inclined to see if there is any
internationally-accepted convention for this, as the licenses are
distributed internationally.

> Or in case law. See, e.g., /Veeck v. Southern Building Code Congress
> International/, 293 F.3d 791 (5^th Cir., 2002) (cert. denied).
>  [http://bulk.resource.org/courts.gov/c/F3/293/293.F3d.791.99-40632.html] 
> This is one of my favorite cases. It put standards organizations on
> notice that they can’t own the law.

Interesting, Larry.... I just read the decision and part of the dissent.
Unfortunately, I don't see how it helps an argument that licenses are in
the public domain. They seem to be a separate class from either a
legislatively-adopted portion of a model code (the class around which
the case centered) or a standard (a class excluded from the case and one
that seems closely akin to a non-legislatively-adopted portion of a
model code). The decision specifically examined cases, where copyrighted
works were enacted into law, where the language of the law is treated as
a fact in the public domain and not the expression of a private
individual or organization.

To use this case, it seems that one would have to demonstrate an
isomorphism between a legal instrument (i.e., a license), created by an
individual or organization, and a law, enacted by a legislature working
for the public. Can such an isomorphism be shown? (I don't know if
"isomorphism" is used in legal discussion or not. I'm someone with a
mathematical background, among other things, trying to play lawyer for a
bit.... ;-)

Thanks for the interesting discussion. Sorry to have created such a ruckus.


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