> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED]]On Behalf Of Alec A.
> Burkhardt
> Sent: Monday, June 04, 2001 7:16 PM
> To: [EMAIL PROTECTED]
> Subject: RE: [Ogf-l] Attempting to fully understand the software issue.
>
>
> > It depends to some extent on: does "a reasonable person" imply someone
who
> > reads instructions? I'm not being facetious here: I would hazard a guess
> > that almost no one reads the software licenses when they install code on
> > their machines, even though the license presumes they will and they
often
> > have to click a button that indicates they have.
>
> Yes, the reasonable person standard does assume that people actually read
> what they are suppose to read. It's just one example of how the
> reasonable person standard is certainly different from the real average
> person.
Thanks! Good to know. As a software developer, I've always wondered how well
those licenses will stand up in court when the licensor knows bloody well
that nobody reads them. (I've always had a temptation to throw in a clause
in the fine print that says, "The first person who emails this sentence to
me will be rewarded with a free licensed copy of this software." Just so I
can see how long it takes to have to pay up.)
> > So if a reasonable person is presumed to have read the instructions,
then if
> > that sentence "All OGC is in the appendix" appears prominently at the
front,
> > it seems TO ME like a clear identification: "If you see something you
would
> > like to reuse, you must consult the appendix to determine whether you
are
> > allowed to."
>
> This again misses what is required to be clearly identified. The
> requirement is not simply that anything that can be re-used by identified
> somewhere, it is that OGC must be clearly identified where-ever it
> appears. (Once again, I'm not saying every time OGC appears there needs
> to be a statement saying it is OGC. But somewhere there must be a
> statement making clear that what the person looking at is OGC. For
> example a statement at the beginning of a book saying all of chapters 3, 5
> & 6 are OGC but no statement about OGC in any of those chapters is
> perfectly acceptable.) Your two sentences only vaguely identify any of
> the OGC in the main text. And I'm not certain how reasonable it is to ask
> a person to memorize the entire appendix so that when they are reading the
> main text they know what is OGC.
Again, just my lay opinion: this seems like a clear identification. "If you
question whether a portion is OGC, look for it in the appendix. If it is in
there, it is OGC. If it is not in there, it's not." Yes, this puts more
burden on the reasonable person; but I cannot see how it is less clear than
"chapters 3, 5, and 6" at the beginning but not in the chapters themselves.
In the latter case, the reasonable person just has to do less work (checking
which chapter is involved against a statement at the front) than in the
latter case (reading material at the end to classify the material). Both
require referencing another portion of the work to determine what is OGC;
it's just that one has a bulk reference, and one has a detail reference.
If I'm missing something here, please help me out. I appreciate it. And as
you do, please explore the following: "In chapter 3, the following
paragraphs are OGC: 1, 3, 5, 10, 12, 14-17, 23, 29, 31, 37, 45-55, 60, and
70. In chapter 5: paragraphs 4-10, 14, 17-19, 23, 28, 32-37, 40, 47, and
69-80. In chapter 6: paragraphs 10-23, 28, 35-49, 56, 59, 60-71." This is
essentially a finer-grained version of your example (especially if they
follow the rather odd convention of numbering the paragraphs in the text
itself); but even though it is mechanically the same, it may not be the same
in spirit, because it imposes more work on the reasonable person. If it IS
in essence the same, then THIS unreasonable person would find it less clear
than simply retyping the OGC itself as a reference, with the rule: "If you
don't find it here, it's not OGC; but if you find it here, it's OGC wherever
it appears."
> Is an appendix with OGC and a statement that everywhere this
> same text appears in the main text it also OGC clearly identifying all the
> OGC in the main text? I don't know and certainly don't want to make a
> blanket statement either way.
I got no clue how a court would rule. Seems reasonable to my rather
functional interpretation; but I've never been accused of being reasonable.
> I think it would be much easier to defend
> with a small appendix than with a large one.
You said this before, and gave your reasons. They kinda made sense then. But
if this is reasonable, I almost wonder at the definition. If I keep looking
up potential material in the appendix and finding that it isn't there, I'll
get in the habit of assuming almost nothing is OGC. Now that's not
necessarily a bad habit (better than assuming EVERYTHING is OGC and then
being wrong); and if the amount is small, it's mostly a safe assumption.
Heck, if I keep checking often enough, I'll even get pretty familiar with
what IS OGC. But I still feel like I could spend a lot of time in fruitless
searches, and start to wonder what the point is.
Martin L. Shoemaker
Martin L. Shoemaker Consulting, Software Design and UML Training
[EMAIL PROTECTED]
http://www.MartinLShoemaker.com
http://www.UMLBootCamp.com
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