[Linux-aus] [Fwd: [LACTTE] Grant Proposal: Feasibility Report for Customer-Enforced Licence Compliance]

Brendan Scott brendan at opensourcelaw.biz
Fri Dec 4 11:42:49 EST 2009

Rusty Russell wrote:
> On Thu, 3 Dec 2009 11:13:21 pm James Purser wrote:
>> On Thu, 2009-12-03 at 22:12 +1100, Melissa Draper wrote:
>>> Request for Grant under the Linux Australia Grants Program
>>> **** Date: 16 November 2009
>>> **** Project Name: 
>>> Feasibility Report for Customer-Enforced Licence Compliance
>>> Output
>>> The output of the work would be a report on the review and an explanation of the feasibility of such an approach. 
>>> The report may be licensed openly (eg GPLv3) and would be drafted accordingly (this may mean that the report would be more circumspect than if it was not published openly). 
>> Personally I think the report should be available to everyone, why do
>> you think that having the report being open would require more
>> circumspection?
> If I may speculate on Brendan's behalf here?
> An assessment like this would include analysing the effectiveness of responses
> to such a legal action.  You don't really want to hand potential opponents a
> template.


Let's say that I have a look (btw I have already had a quick look and think the argument basically has legs) and come to the view that:
* (eg) there's an arguable case, but someone might counter the argument with x, y or z, and that we might respond to such a counter with a, b or c.  

If the document is public, then you're telegraphing your arguments, but also their counter-arguments to a potential infringer (eg they might not have come up with x, y or z by themselves).   Equally, I might come to the conclusion that an argument on a particular section is weak, if that is public then an infringer will automatically respond to the effect that "but your own lawyer thinks this argument is weak".  Making it public would also mean that any legal professional privilege which subsists in the document would be waived, so a defendant could produce it in court. 

So, making things public might weaken the case against an infringer.  If I was anticipating that the document would be open and I came across a weak argument I would need to try to phrase the document so that I wasn't overstating it's strength (which would be misleading), but without disclosing that it wasn't strong.  That would be tricky.

There is an additional problem that LA isn't a corporate entity (is it?), which presents a number of other issues about to what extent the document can be kept secret ... 

I think the value of this work is as an input into the phase 2 work (see my second application).  That work is to create some template documents for people to use.  There's a much stronger argument for those documents being public.

For what it's worth, I've been contacted about this:

So OpenNetworks may end up being a test case. 



Brendan Scott IT Law Open Source Law 
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