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Old 10-17-2003, 02:55 PM   #41
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2. The DIKU group only expressed two conditions in return for their donation: That the credits be kept and that no profit whatsoever should be made from the code. Don’t you think they deserve the courtesy of the society respecting their wishes?
No one is suggesting that a profit be made from DIKU. That's the entire point of this thread: It's quite possible to take money and simply not show a profit.

The license says what the license says. No more and no less. Some people seem to think it SHOULD say other things but certain people are also living in fantasyland.

The very reason we have written licenses and written contracts are because just relying on the intentions of the licensor or licensee is inherently unfair to one side or another. Contracts exist to ensure that both sides of an agreement are working with the same data and the same rules. Expecting a licensee OR a licensor to have to guess at whatever the other side claims were its intentions at the time is unreasonable. I mean, if the DIKU authors piped up and stated that they intended for nobody to have a black dragon in a DIKU-derived mud, would those of you clamoring to include things that aren't in the license be clamoring to enforce that? It's no more in there than a prohibition against taking money from players is in there.

--matt
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Old 10-17-2003, 06:38 PM   #42
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For those that are making claims focussing on ‘the letter of the law’ an understanding of implied contractual principles may be in order.

A contract expresses the terms of use for something, usually conditions of use or expectations on the part of the drafter.

An implied contract "presupposes an obligation 'arising from mutual agreement and intent to promise but where the agreement and promise have not been expressed in words.'"

Case v. Shepherd, 140 W. Va. 305, 310, 84 S.E.2d 140, 143 (1954)

A contract does not have to detail implied terms – and if it does then these terms precede the implied connotation. Which basically means, if you include an implied condition within a contract it is taken as an expressed condition.  

"[a]n implied contract and an express one covering the identical subject-matter cannot exist at the same time. If the latter exists, the former is precluded.

" Rosenbaum v. Price Const. Co., 117 W. Va. 160, 165, 184 S.E. 261, 263 (1936).

Implied promises are as legally binding as the contract itself, providing that these implied promises are documented separately.

"[a]n implied promise must be as distinctly alleged in a declaration as an express one."

Bannister v. Victoria Coal & Coke Co., 63 W. Va. 502, 61 S.E. 338 (1908).

Declarations of implied promises, relating to the usage of the DIKU code, can therefore extend to previous, subsequent or concurrent documents created by the copyright holders, DIKU. The applicability of such being linked to the time a party enters into the contract, when they make use of the code, apply for use of the code. This additional documentation could include release notes, posts detailing the creators expectations of use or their reasons for releasing the code, any form of documentation that is separate and distinct from the contract, applies to the owners intentions for usage, and does not replicate the contents of the contract. The fact that such implied promises are not SPECIFICALLY detailed in the contract is the very thing that ensures their legal merit.

The case examples given as precedence for legal decisions are from the American legal system, but in Europe the same system applies – but it is arguably more developed with a greater legal precedence behind it.

The Principles Of European Contract Law 1998

Article 6.102 (replaces 5.108) – Implied obligations

In addition to the express terms, a contract may contain implied terms that stem from

a) The intention of the parties
b) The nature and purpose of the contract, and
c) Good faith and fair dealing

The license is certainly vague, but in relation to implied contractual terms – with associated forms of documentation – vagueness is to its credit. Whether the DIKU teams intentions surrounding their release of the code where given to each user in person, and whether the absence of such case by case documentation would impact upon any decisions is debatable. However, the general consensus of opinion regarding their intentions and numerous replications of their intentions in documented form must be considered to their favor – it could be harder to prove a lack of knowledge that an expectation of knowledge.

NOTE – It is also useful to note that the license restricting usage is not limited to profit, it also states “charge money for distributing parts of’. Since output is a form of distribution, albeit not physical, the second clause extends the scope of the contract to undermine ‘non profit’ loopholes. If any money is charged the user is in breech of contract regardless of whether they accrue profit or not.
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Old 10-17-2003, 08:38 PM   #43
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Implied promises are as legally binding as the contract itself, providing that these implied promises are documented separately.
Indeed, implied promises are, but there is no implied promise in the DIKU license.

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An implied contract "presupposes an obligation 'arising from mutual agreement and intent to promise but where the agreement and promise have not been expressed in words.'"
But what we have here is mutual disagreement, even if we assume that we know what the intent of the licensors was. Certainly we DO know that the licensors don't feel injured enough to do anything about it. I've got no interest in using DIKU for anything but were I to desire to start a commercial DIKU product there would certainly be no mutual agreement not to charge money.

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The fact that such implied promises are not SPECIFICALLY detailed in the contract is the very thing that ensures their legal merit.
But where is the implied promise? The DIKU licensors haven't promised anything. There's certainly no implied promise from the licensee's point of view, especially when a licensee can explicitly disclaim such an intention.



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NOTE – It is also useful to note that the license restricting usage is not limited to profit, it also states “charge money for distributing parts of’. Since output is a form of distribution, albeit not physical, the second clause extends the scope of the contract to undermine ‘non profit’ loopholes. If any money is charged the user is in breech of contract regardless of whether they accrue profit or not.
Easy enough. Don't charge for the distribution then. In our games, for instance, distribution is free. We charge for the service of maintaining certain database entries.

(Still debating whether to get an expert opinion on this. On the one hand, it's not really relevant since the DIKU licenseholders aren't interested in enforcing the license anyway but on the other hand it'd be kind of neat to see.)
--matt
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Old 10-20-2003, 04:25 PM   #44
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Delayed reply due to being without internet access for a few days.

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Stilton wrote:
His example was pretty extreme, but his point is quite valid: your continued claims that we can't know if something is ok until there's a court case is ridiculous.

Think about how many agreements you are a party to: rental/mortgage, credit cards, etc. You don't really claim that you don't have any idea of what your rights and obligations are just because you've never argued about any of those contracts in court, do you?
Of course not; but I'm not the one arguing that point of view - you are. I am defending the intended interpretation of the contract (much like the intended interpretation of the rental/mortgage/etc contact), while you and the_logos are arguing your own counter interpretation. I would not state that a credit card contract had a loophole in it until it was tested in a court of law, nor shall I do differently with the Diku license. Argue as much as you like, the situation is far from clear cut.

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However it's also worth noting that the license states you cannot "make profit" in "any possible way". Well, one "possible way" of profiting is to make a gross profit - that's your profit without any deduction for losses (as opposed to "net profit", which is what you seem to be talking about).

I believe that you're confusing gross revenue with profit. gross profit = revenue - cost of generating that revenue.
http://www.thefreedictionary.com/gross%20profit

gross profit (n.) The total business receipts less cost of goods sold, before operating expenses and taxes are deducted.

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Ilysia wrote:
kavir how do you know what the intentions of hte licensors are ? Have you asked them ?
Yes, several times, at great length.
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Old 10-20-2003, 07:26 PM   #45
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Of course not; but I'm not the one arguing that point of view - you are.  I am defending the intended interpretation of the contract
A license is a contract between two parties.  Reading just the license, what grounds do you have for suggesting that it should be obvious to other people reading it that "profit" isn't really what they wanted to say?  I certainly didn't think "oh, they obviously mean 'revenue', not 'profit'" when I first saw and agreed to it.  Did you?

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gross profit (n.) The total business receipts less cost of goods sold, before operating expenses and taxes are deducted.
Rather than posting links for a basic dictionary site rather than a dedicated financial authority, please take a look at a genuine quarterly report submitted to the SEC for a business which pushes bits over a wire, Digital River:
http://www.sec.gov/Archive....10q.htm

Look at the calculation of gross profit closely, and note the breakdown on what's included in direct cost of revenue.  

By discussing this, I'm not stipulating that "gross profit" is the correct standard- the license only says "profit".  I'm simply choosing to demonstrate that even if it were, that still wouldn't prove the case you want it to.

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Old 10-20-2003, 08:39 PM   #46
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A license is a contract between two parties.
And more specifically, a private grant of the right to use intellectual property which otherwise could not be used.

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Reading just the license, what grounds do you have for suggesting that it should be obvious to other people reading it that "profit" isn't really what they wanted to say?
I not saying it is completely obvious, just from reading it (although the general idea behind the license shouldn't be too hard to grasp). However just because something isn't obvious, it doesn't mean that the licensee can choose their own interpretation!
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Old 10-20-2003, 08:58 PM   #47
 
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Originally Posted by (Fharron @ Oct. 17 2003,18:38)
For those that are making claims focussing on ‘the letter of the law’ an understanding of implied contractual principles may be in order.

A contract expresses the terms of use for something, usually conditions of use or expectations on the part of the drafter.
Excellent research.  Intent is a consideration in contract law.  
I've previous claimed that a US court would most likely interpret the Diku "no profit" clause as "for non-commercial use only" as they have done so before.
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Old 10-20-2003, 10:22 PM   #48
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I not saying it is completely obvious, just from reading it (although the general idea behind the license shouldn't be too hard to grasp). However just because something isn't obvious, it doesn't mean that the licensee can choose their own interpretation!
Exactly. The license says what it says, and what it says is "profit."

I assume from your lack of response that you agree with me now that some of the expenses a server operator might incur can be properly construed as being deducted from income to get gross profit, and certainly to get final profit?

Tyche:
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I've previous claimed that a US court would most likely interpret the Diku "no profit" clause as "for non-commercial use only" as they have done so before.
Yes. Someone would be hard-pressed to argue that a commercial enterprise was not attempting to earn a profit.

At the same time, I can't see a court ordering damages against a hobbyist for recouping $200 in money from players against $500 in hosting costs that he has receipts for.

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Old 10-21-2003, 06:29 AM   #49
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I assume from your lack of response that you agree with me now that some of the expenses a server operator might incur can be properly construed as being deducted from income to get gross profit, and certainly to get final profit?
No. I agree that it could be interpretted that way (and have never argued otherwise). However I have also stated that it could be interpretted differently. That is why I base my interpretation on the intent of the Diku team, until such time as it is proven otherwise in a court of law.
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Old 10-21-2003, 10:47 AM   #50
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Basically Stilton, Kavir is saying that the right to interpret a license belongs to the person who wrote the license, until and unless a court orders otherwise. Furthermore, Kavir has hashed this out in great length and detail with the DIKU folks, and even has a website dedicated to much of the discussions between them and himself on this very issue.

The person agreeing to the license does not have the right to pick and choose how they will agree. They agree to the letter of the license, and if there is any question on its intent, then the person agreeing to the license must by default go by the intent of the person writing the license. That intent has been made clear by the DIKU people, through Kavir and in numerous discussions in the past.

The straight dope on the matter:

You cannot CHARGE money for anything involving a DIKU game. You can charge for access to the HTML bulletin boards, but you cannot offer game advantages or game perks or game benefits for the fee. The builders, storytellers, or admin cannot collect a salary for their work. The two must remain separate.

You cannot RECEIVE money for anything involving the DIKU game. You cannot take donations in exchange for access, you cannot accept real money in exchange for game perks, you cannot accept real money to pay the builders, not even in donation form.

This is not only the letter of the license, it is also the intent. I don't see any way to get around it with an obscure loophole. Even if you take the part that says you can't PROFIT and try to work around that by taking money and not profiting, you still have to get around the rule saying that you can't CHARGE. No one is allowed to get paid, no one is allowed to charge. No money is allowed to end up in anyone's pocket. You can write off expenses til you turn blue in the face, but those expenses you incur, all by yourself, for the privilege of running the game in the first place. You're not entitled to compensation for that.
The DIKU license essentially tells you that by running their code in your game, you are DONATING your time, your efforts, and your own expenses, and you are not allowed to recoup any losses by doing so.
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Old 10-21-2003, 01:48 PM   #51
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They agree to the letter of the license, and if there is any question on its intent, then the person agreeing to the license must by default go by the intent of the person writing the license.
Of course, they agree to the letter of the license and that is why we are discussing it. The letter of the license says no PROFIT can be made in anyway. When a license is vague in something we look at the implied parts of the license (implied terms, conditions and promises)  I, personally, see no implied condition or term in there, instead I see it expressed that no *PROFIT* be made.

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That intent has been made clear by the DIKU people...
Which is what a few people are discussing, whether there is any right to come in after the fact of creating a license and add intents that aren't expressed in the license.

As to whether the license reflects those intents in implied ways is up to the courts, you can debate it till blue in the face. Though I wonder how the innocent bystander* test would fare.

So far, most people I have shown the license seem to assume that it meaning simply non-commercial usage, tending to back up the statement of Tyche.

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This is not only the letter of the license, it is also the intent. I don't see any way to get around it with an obscure loophole.
Again, it's not an obscure loophole but a clearly expressed statement in the contract that states no *PROFIT*. Very specific if you ask me.

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Even if you take the part that says you can't PROFIT and try to work around that by taking money and not profiting, you still have to get around the rule saying that you can't CHARGE.
Very odd, I don't remember seeing a rule saying you can't CHARGE. Or do you mean this:

[code] You may under no circumstances charge money for
  distributing any part of dikumud - this includes the usual $5 charge
  for "sending the disk" or "just for the disk" etc.
[/quote]

Let's be serious, especially if you are trying to tell people about breaking intent. Distribution is just what it states: The distribution of the software itself. The term distribute is very clearly defined in regards to software licenses, so I doubt with any stretch you could make it apply.

If distribution does mean what Fharron states ("output is distribution") then I guess we better watch what licenses we use with our muds, quite a few say that the license must be included if any part is distributed. (would we send the license on a per character basis or after each line?)

Kaylus

[code]
Officious Bystander Test; A contract between the company and a supplier is comprised of express terms (ie written down) and implied terms (obvious terms implied by commonsense, and by custom and practice). To determine later whether some particular term X is implied or not, the company might imagine what reply would have been given by both parties while the contract was being drawn up to an officious bystander (ie a nosy passer-by) if he had asked them "Is X intended to be included?". If both parties would have replied in unison "Yes - the inclusion of X is obvious! X is essential from the business point of view!", then X is indeed an implied term. Note that X must be essential at the time the contract is being drawn up; it is not an implied term simply because it later seems reasonable, or on lenghthy reflection seems a reasonable extension of the agreement.
[/quote]
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Old 10-21-2003, 02:09 PM   #52
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The license doesn't say distribution of software. It specifies - of ANY PART OF DIKUMUD. It further includes the disk itself, but inclusion of one thing does not exclude another, when it already specifies "any part of" in the first place.

That means no one can use the code, the software, the diskette, the CD, the name DIKU, the name DIKUMUD, any of the paragraphs written for room descriptions, any of the instructions, any of the comments - ANY PART - if they charge for it.

You cannot charge for any part of dikumud. Says so right there, you pasted the license section yourself. It doesn't say any part "except that part" and it doesn't say any part "unless you aren't profitting from it." It says any part. Period.
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Old 10-21-2003, 02:41 PM   #53
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This whole argument is silly. It's pretty well understood what is meant by the terms of the Diku license.

--There are those that will abide by the spirit and the letter of the rules.

--Then there are those who will see how they can creatively interpret them to their own advantage.

--Then there are those who will downright ignore them, often blatantly.

I am sure you have all seen people apply these three attitudes to the rules of your own games. Which do you think is right?
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Old 10-21-2003, 06:55 PM   #54
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The license doesn't say distribution of software. It specifies - of ANY PART OF DIKUMUD. It further includes the disk itself, but inclusion of one thing does not exclude another, when it already specifies "any part of" in the first place.
Neither do the tons of other licenses, again you should probably look up specifics on "implied conditions" on a site with contract law. Or just do a general google search which should be just as easy. I seriously doubt people are going to assume that network data and dynamic text is part of the distribution clause.

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That means no one can use the code, the software, the diskette, the CD, the name DIKU, the name DIKUMUD, any of the paragraphs written for room descriptions, any of the instructions, any of the comments - ANY PART - if they charge for it.
Jazuela, you talk about other people misinterpreting the license when you sit here and imagine the license the way you want and argue it as truth in a LEGAL FORUM. Regardless, i'd like you to re-read my last letter. I said let's assume that sending data over a network constitutes distribution,  something I highly doubt. Bet let's assume it does and break down the license Jazuela style:

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Originally Posted by
You may under no circumstances charge money for
  distributing any part of dikumud - this includes the usual $5 charge
  for "sending the disk" or "just for the disk" etc.
Jazuela is stating: Sending data to a connected client constitutes distributing [to distribute*syn: give out, give away, hand out] a part of dikumud.

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Originally Posted by
 This license must *always* be included "as is" if you copy or give
  away any part of DikuMud (which is to be done as described in this
  document).
So by Jazuela logic:  Any time the mud sends data to the client it must be accompanied by the license.

Bravo for pointing this out to us Jazuela. Now everyone who runs a DIKU mud needs to include the license with every piece of data they send out, oh yeah better tag it on to any stock room or help file too. Unfortunately, as with your statement about the distribution clause covering connected clients, I doubt you would be able to pass it off anywhere.

Crymerci, I am not reading the legal forum to read about the spirit of the license and see which is morally or ethically right. Regardless of whether agree or disagree with you, I am reading the legal forum to see what people -assume- is LEGALLY right. No one here even said they were going to use the Diku codebase as stated, most of the people arguing, including myself, have written their own codebases.  We are looking at the legal view.

I hope that other people while reading this forum will throw off their 'Spirit' badges for a few seconds and hopefully learn something, so that when it's their turn to write a license they don't make the same mistakes. It's always good to learn something new, closing your eyes and saying "Listen to the spirit" does nothing. Unless you are smoking peyote.

Kaylus

P.S. As stated by numerous people, we can argue what we assume the court will say, but we will never truly know unless it goes to court.
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Old 10-22-2003, 04:16 AM   #55
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That means no one can use the code, the software, the diskette, the CD, the name DIKU, the name DIKUMUD, any of the paragraphs written for room descriptions, any of the instructions, any of the comments - ANY PART - if they charge for it.
I'm no expert with laws regarding trademarks. However, i don't think diku has any registered trademarks concerning "DIKUMUD" which as i believe would make it perfectly fine for whatever company to go up and make their own DIKUMUD game, trademark it as an online game and get all the rights to use it as the name for their game...
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Old 10-22-2003, 04:10 PM   #56
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I don’t know where the idea that every instance of output needs to be separately legitimized came from. It is enough to have all the relevant information available in the form of recognizable declarations, singular in placement.

I mean if a park has a sign saying “keep off the grass” it is enough, we don’t expect the grounds person to label every blade of grass with its own tag now do we?
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Old 10-22-2003, 07:47 PM   #57
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Fharron, the whole thing was more a mockery of a zealous outcry (tinged with sarcasm), or at least it ended that way. I swear I had good intentions at first! It was more to show how silly one can get if they start interpreting things in their own defintions than by standard (Jazuela's reply to my first post). I will clarify what I was saying, though, because I have nothing better to do while I wait for my friend to come over and fix his computer.

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I don’t know where the idea that every instance of output needs to be separately legitimized came from. It is enough to have all the relevant information available in the form of recognizable declarations, singular in placement.
Actually, that idea came from the your statement "Output is a form of distribution" that Jazuela was using to base her opinions on. I seriously doubt that it was intended or implied that distribution would cover network output, and i'm quite sure that it wouldn't hold up to scrutiny.

Though pretending it did go through as that was the intention than it would surely apply to all forms of distribution or giving away. (Distribution meaning to distribute, which is synonymous with handing out, giving out, etc.)

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You may under no circumstances charge money for
  distributing any part of dikumud
If distributing (giving away) any part of dikumud included network output as a recognizable form then surely:

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  This license must *always* be included "as is" if you copy or give
  away any part of DikuMud (which is to be done as described in this
  document).
Would mean that one must include the license in with the giving away of that part of dikumud (the output), no? But truly, I doubt it would come to that, as surely as I doubt that output would be construed as distribution as stated in the license.

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I mean if a park has a sign saying “keep off the grass” it is enough, we don’t expect the grounds person to label every blade of grass with its own tag now do we?
Definitely not, I was over-exaggerating as I slipped towards sarcasm. Though, by that definition of distribution and the letter of the license, then the license would need to be included somewhere during the session. Note that this would probably be negated if the whole text of the mud was all original and no part of Dikumud were distributed (Though we could then argue derivative status), it's not a pretty argument and not a serious one at that, so don't take it as such =)

But besides hypothetical blathering over something that hopefully wouldn't happen, let's talk instead about the part of the license that does apply. The one about *PROFIT*. I happen to agree with Tyche's statement that the license would be taken by the court as "non-commercial" use only, which doesn't negate the chance of the mud itself bringing in money as long as the mud/company retained no profit.

Ah, there's my friend now. Good day.
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Old 10-23-2003, 01:10 PM   #58
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Kaylus1 has adequately dealt with most points.

KaVir:
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No.  I agree that it could be interpretted that way (and have never argued otherwise).  However I have also stated that it could be interpretted differently.
I believe that you are wrong. I have provided links to things like SEC filings; your evidence consists of vague claims like "it could be interpretted differently" and links to freedictionary.com.

You're the one arguing for a more restrictive interpretation of the license than a basic reading would suggest, and at the same time claiming that you're right until proven wrong.  That is not how science, law, debate, or common sense works.  Because you are the one arguing for additional restrictions that are possibly contrary to the actual text of the license, you are the one who must provide proof.

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Old 10-23-2003, 02:22 PM   #59
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Actually, that idea came from the your statement "Output is a form of distribution" that Jazuela was using to base her opinions on.
Um, no. How you managed to conclude that I used that to base my opinion is beyond me. I used the wording of the license itself to reiterate what the license said. My "opinion" - is that it's a silly discussion on both ends of the spectrum, that people without a legal background arguing legal semantics is a lesson in futility - unless you happen to be one of us wee moronic dweebs who happen to get a kick out of watching the spiral.

I was re-stating, in my own words, my understanding of what the license said. I never gave my opinion on whether or not I agreed with it, so again, I have no idea where you came up with that ridiculous notion.
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Old 10-24-2003, 04:32 AM   #60
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I believe that you are wrong.
Obviously - just as I believe you are wrong - otherwise we wouldn't be discussing this.

Quote:
Originally Posted by
You're the one arguing for a more restrictive interpretation of the license than a basic reading would suggest, and at the same time claiming that you're right until proven wrong.
I am pointing out the intent of the Diku license, and showing how the license could be interpretted that way. I am also saying that until tested in a court of law, there is no way to know which interpretation is correct - and regardless of how you like it, that is the way the law works. You cannot simply decide that you prefer your own interpretation of a license! Even Tyche and kaylus1 agree that the license will most likely be interpetted as "for non-commercial use only", which was the main part of my original post which you replied to.
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