Re: For Approval: Boost Software License - Version 1.0 - August 17th, 2003

Quoting dlw (danw6144insightbb.com):

> Accusations of UPL are sometimes bandied about as a
"cheap
> shot" intimidation tactic.

Quite so.  Are you sure you're blameless, yourself, in that
department?
E.g.:

> I believe the official OSI certification process is
skirting
> dangerously close to the definition of UPL.

(I deny your premise that prefacing your claim with "I
believe" protects
you, per se.)

You are correct that unauthorised practice of law is
construed somewhat
variously among the USA states (well, "unauthorIZED
practice of law is",
strictly speaking), but I feel safe in labelling as humbug
your
assertion that OSI's certification program even remotely
approaches 
any state's statutory (or caselaw) boundaries.

I've actually been preparing to write a few survey articles
(for _Linux
Gazette_) about some legal topics relevant to open source,
and naturally
the very first thing I intended to do is say "I am not
a lawyer, and
these articles are not legal advice suitable for direct
application to 
any real-world legal issues.  If you have an actual
real-world personal 
or business legal problem needing tailored help, choose to
use my
non-tailored writings as your sole guide, and later complain
that I lead
you astray, I and the entire _Linux Gazette_ editorial staff
will laugh
in the same chilling manner exhibited by Josef Stalin as he
enslaved
Eastern Europe.  Don't be an idiot:  Consult competent legal
counsel if
you have specific real-world legal dilemmas, rather than
just being
curious about the nature of the law in general."

And, of course, the first legal topic I had intended to
address was:
unauthorised practice of law -- to explain in part why, and
to what
degree, a now-lawyer like me can usefully and lawfully
address legal
affairs.  I've just started that, but here are some notes:

---<snip>---

In 1997, the state of Texas "Unauthorized Practice of
Law Committee" (a
committee of the state supreme court, fronting for the state
legal
profession) sprung on Berkeley, California publisher Nolo
Press,
publisher of self-help law books, a mostly secret
investigation
allegedly seeking to ban Nolo's books from Texas libraries
and
bookstores.[1]  Nolo responded by filing suit (backed by the
American
Library Association and others) directly in the Texas
Supreme Court,
seeking declaratory judgement that simple self-help books
and software
aren't "practice of law" and disclose the nature
of its investigations.
Perhaps realising that they had an epic PR nightmare on
their hands,
Texas's legislature quickly passed through a new law
clarifying that
self-help legal materials are perfectly lawful.  Both the
investigation
and the lawsuit were dropped.  A key component of Nolo's
books and
software (and a requirement of the new statute) was that the
self-help 
materials state that they're no substitute for competent
legal help.

In 2001, a somewhat saner Unauthorized Practice of Law Board
in Ohio 
clarified the matter a great deal more, in the case of
"Office of
Disciplinary Counsel v. Palmer"[2], where one David
Palmer had been
operating a Web site giving out no-charge legal information.
 The Board
found that Palmer's Web discussion board had broken no laws,
because
"one key element of the practice of law is missing in
published advice
offered to the general public: the tailoring of that advice
to the needs
of a specific person."

That's it, in a nutshell:  General information (and
information about
hypothetical cases, or views on the legal affairs of people
whom you're
not actually _advising_ on their problems) are fine. 
Advising people on
their specific legal problems is not.

The Board expressed grave concern about Palmer's published
offer to give
people "guidance and/or advice" on "any legal
matter" -- but,
fortunately for him, the Board found no instances where he
had actually
_done_ so.  (Note that Palmer didn't get a pass merely for
not charging
money:  There are no "Good Samaritan" shield laws,
where legal advice is
concerned.)

---<snip>--

There are some broad themes that pervade the subject,
despite the state
legislation being "vague in scope and contain broad
qualifiers", as the 
DoJ letter you reference says:  Advice tailored to a
particular
recipient's needs that is _of types reserved only to
lawyers_.  The
latter tends to include, as the DoJ's Model Definition
suggests,
advising on the recipient's specific legal rights and
responsibilities 
in particular real situations, drafting real legal
documents,
representing others in legal or (certain) regulatory
proceedings, amd
megotiating legal rights and responsbilities for others.

Neither OSI nor the posters to this mailing list do any of
those things,
though your point is well taken that posters should be
careful.

In particular, OSI licence certification is _not_ a
proceeding of
administrative law; it is just a private certification-mark
approval
programme.


> Approving a copyright license by its very definition
involves
> exercising legal judgement and discreation.

In short:  Bull.

On 10/12/07, Rick Moen <ricklinuxmafia.com> wrote:


> That's it, in a nutshell:  General information (and
information about
> hypothetical cases, or views on the legal affairs of
people whom you're
> not actually _advising_ on their problems) are fine. 
Advising people on
> their specific legal problems is not.

> [Qoting Denial Wallace]
> > Approving a copyright license by its very
definition involves
> > exercising legal judgement and discreation.
>
> In short:  Bull.

I would add to Rick's excellent points that when a legal
issue goes
poorly, "qualified legal advice" is no surety, nor
is malpractice
recourse easy to come by.  Thus while everyone needs to seek
legal
advice and sometimes even representation where appropriate,
these
matters should not be delegated to lawyers without us laymen
doing our
part to grapple with, understand, debate, etc. legal
questions.

In short while we *all* should seek to understand the issues
as best
we can, we should *also* seek legal help where appropriate. 
Approving
a license may require some judgement and discretion about
legal
matters, but so does every other element of life, from as
driving a
car to representing yourself in court (whether for a traffic
ticket or
in a pro se case).

Licenses are not legal advice.  They are legal documents. 
We are not
approving them as legally sound.  We are approving them as
meeting a
certain standard as to what rights they purport to grant.

Hope that helps.
Chris Travers

On 10/12/07, Rick Moen <ricklinuxmafia.com> wrote:
[...]
> Eastern Europe.  Don't be an idiot

(I'm just googling.)

http://cr.yp.to/dis
tributors.html

"Rick Moen is an idiot. (In case there are several Rick
Moens in the
world: I'm talking about ricklinuxmafia.com.) Feel free
to ask your
attorney to explain waivers to you. "

Regarding Eastern Europe: Eastern Europe is a
socio-political concept
mainly influenced by the Cold War... It includes: Belarus,
Ukraine,
Romania, and Moldova and the European territories of Russia,
a
transcontinental country, etc. (according to
http://en
.wikipedia.org/wiki/Eastern_Europe).

BTW,

http://cr.yp.
to/conferences/russia.html

Really nice story. 

It's all google. 

regards,
alexander.

--
"PJ points out that lawyers seem to have difficulty
understanding the
GPL. My main concern with GPLv3 is that - unlike v2 -
non-lawyers can't
understand it either."
                        -- Anonymous Groklaw Visitor