Re: BK kernel workflow

[Larry McVoy <lm@bitmover.com>]

On Fri, Oct 29, 2004 at 08:55:57PM +0200, Ram?n Rey Vicente wrote:
> Scott Lockwood wrote:
> | In what way is that improper? Just because you think so, or do you have
> | something you can cite in the spanish legal system that forbids this sort
> | of exchange of rights for a licsense?
> 
> Improper in the way of misusing the legal system.  

This is not getting us anywhere.  You're not citing case law, you're
citing vague statements that don't apply here.  And even if they do
apply, the law is a moving target, new case law changes the rules all
the time.  Who's to say that we don't have a lawsuit in Spain and 
and get new case law put in place that says you don't have such and
such a right unless you pay for the product?  Who's to say someone 
else doesn't do that?  It's a moving target.  

It's worth thinking this through a little.  One view of law is that
it is the process of writing down what society thinks is reasonable.

A good example is the interoperability thing, lots of places have said
"if you lock up my data then I have the right to dig it out regardless of
your license" or words to that effect.  That's reasonable.  

On the other hand, if you have a program that does not lock up the data,
does not impede your ability to get your work done, is it reasonable for
you to go digging around in that product for the purposes of creating
a clone?  Maybe, if the license doesn't prohibit that.  Is it reasonable
for a license to prohibit that?  I think so and so does BitMover's
legal counsel and so does outside counsel who are experts in contract
and copyright law.  Are we right?  Dunno.  Maybe we go to court and
find out.  Maybe we go to court and make new case law.

The bottom line is that we are trying to be reasonable, we are trying
to provide a service and protect our investment at the same time, and
we are secure in the knowledge that we could make a very strong case
that we are good guys, doing a good thing for you, and we're reasonable.
What that means is that if it comes down to a legal battle, even a legal
battle where the current law comes down on your side, we may create new
case law which says "well, yeah, but you didn't pay for it and when we
talked about all that stuff you referenced we really meant in the context
of a paid for product".  It's a matter of how things are interpreted
and things get reinterpreted all the time in situations such as this.

The side that will win will be the side which is both reasonable and
has enough money to present that case.  We think that's us.

How reasonable are you going to look when the only reason you have
for doing what you are doing is to steal our technology?  Remember,
you are doing this to a program that was given to you for free under
the agreement that you would not do this.  Whether the law currently
distinguishes between paying or free, do you really think you can go
before a jury and win a case where you are violating the terms of a
license for a product for which you paid nothing and for the sole purpose
of creating a competing product?  If you do, go for it.  All I can say
is I wouldn't do that if I were you.  It doesn't look reasonable to me
and I'll bet you long odds that it won't look reasonable to a jury.

I'm quite willing to go to court and test this out, by the way, we've
set aside money for legal fees in case we need to do this.  It would be
nice to have some case law which clarified this one way or the other.
-- 
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Larry McVoy                lm at bitmover.com           http://www.bitkeeper.com