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Comment by matthewowen | Hacker News Reader

How true is this, in practice? I hear software folks say this sort of thing somewhat frequently, but I haven't heard it from a _legal_ person. And my general sense and understanding is that although an FAQ style clarification is not _perfect_, it _does_ carry non-trivial weight.

Judges are not totally capricious people making arbitrary decisions: the notion that in a dispute they would just cast aside one party's _clear and well documented intent_ to narrow the scope of the burden they place on another is... well, it doesn't seem all that credible to me.

Of course by the time you get to that point in a legal dispute you're already in some trouble.

But IDK, I'm just a software person speculating. Is there a legal person interested in giving their "not legal advice" perspective on this?

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I'd rather stick to the license text (than rely on mental gymnastics to justify any interpretation based on a FAQ) to be upheld in the Court of Law.

Btw, note how MPLv2 FAQ page clearly points out that the FAQ doesn't give anyone a license to freely interpret the license itself:

> ...while this FAQ is intended to be accurate and helpful, it is not the license, and may not cover important issues that affect you and your specific situation. As a result, reading the FAQ should not serve as a substitute for reading the license itself, or for seeking legal advice from a lawyer.

https://www.mozilla.org/en-US/MPL/2.0/FAQ/

Remember when Google argued that Oracle shouldn’t be allowed to sue over using the Java API because SUN had said it was fine? That’s the same legal argument as the FAQ issue. It’s called equitable estoppel.

Yeah, that is what happens when one turns down the opportunity to own Java.

Are you saying Google did that? Any links?

When Sun was put on sale, there were eventually two offers, Oracle and IBM (which withdraw theirs shortly thereafter).

Google did zero offers back it was still unclear who would save Sun, most likely hoping that they would just sink away.

Eventually Oracle and IBM came into the picture, and still radio silence from Mountain View.

So yeah, they get what they deserve.

As for links, the press of the day.

> Judges are not totally capricious people making arbitrary decisions: the notion that in a dispute they would just cast aside one party's _clear and well documented intent_ to narrow the scope of the burden they place on another is... well, it doesn't seem all that credible to me.

My (non-lawyer) experience tells me the same, judges don't like people who try to argue one thing to a judge while clearly documenting on their website the opposite isn't going to go well, but as others pointed out that doesn't make it a smart choice to depend on, or that corporate lawyers will agree is worth the risk.

It raises question of how binding is publishing an FAQ? If I sent them an email with that question and they sent me an answer, if they tried to sue me over the issue that email will be a significant piece of evidence in my favor (I imagine).

But what if they only sent me a link to the FAQ or I just silently relied on it to be accurate?

In my experience, corporate lawyers don't really understand the distinction and will opt for the route of least risk, which generally entails a commercial relationship with the company. Unfortunately, neither Mongo nor Elastic really offer useful commercial relationships. That is, pay them a sum and be free to use the widely adopted open-source version of their thing.

The overhead to those relationships for what they do offer is significant.

Mongo absolutely offers this. A company I worked for had a contract with them -- these terms are hugely expensive, to the point it was worth switching to the AWS version when we had no AWS services.

Mongo offers what? A license to use their software and have them not harass me or attempt to upsell me or force me to use their management tooling?

Nah.

> and will opt for the route of least risk, which generally entails

Choosing something else - at least if you can do it before getting locked in.

Again, very minor use case. Not worth expending effort on. I attempted to convince the lawyers that we should just yolo it because the product had no actual revenue.

Didn't go well.

I can get at least a couple of person-weeks worth of dev done for the cost of sending the email that results in attempting to convince the lawyers of _anything_.

I wouldn't even ask for a legal review of this new Elastic License, if I thought I could tear it out for less than 2 dev-months of effort.

Well, what, then?

SOLR?

Amazon's Open Distro for ElasticSearch is still an open source fork of Elastic Search, so ironically Amazon may be the saviors of Open Source Elastic Search.

Excellent point.

> How true is this, in practice? I hear software folks say this sort of thing somewhat frequently, but I haven't heard it from a _legal_ person.

As a business person, I'd prefer to avoid the legal expense and risk to find out the hard way later on. Who knows who'll manage ElasticCo 5 years down the line and whether their motivation may be to milk their IP through litigation. Do you really want to be the guinea pig? The smart business move would be to either license explicitly OR stick to the Apache 2.0 version and plan a migration off ElasticSearch

Ambiguities result in increased litigation expense. Each argument over what a term means or how it should be interpreted is very expensive. These kinds of disagreements often need to be resolved early in the case by expensive motion practice.

It is much cheaper if both sides are willing to stipulate that they are in agreement with what the terms mean. Then you can get to fact finding and settlement talks with less upfront cost.

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