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OSI Turns Down 4 Licenses; Approves Python Foundation's 154

Posted by Hemos
from the keeping-the-updates-going dept.
Russ Nelson writes "The Open Source Initiative turned down four licenses this week. Not to name names, but one license had a restrictive patent grant that only applied to GPL'ed operating systems. Another was more of a rant than a license. Another was derived from the GPL in violation of the GPL's copyright. And the fourth had insufficient review on the license-discuss mailing list (archives). The one license that did pass was the Python Software Foundation License."
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OSI Turns Down 4 Licenses; Approves Python Foundation's

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  • Hypocrisy (Score:1, Troll)

    by 91degrees (207121)
    The GPL allows people to modify code as long as the release the source. It exists entirely to allow this. Why not apply the same rules to the GPL? Having a reasonably complete licence is useful for designing one's own. If it is a good licence, thenb the fork will survive. If it isn't then it will die out.

    It's not like we're going to make RMS starve if we copy it. He doesn't make his living selling copies does he?
    • Re:Hypocrisy (Score:4, Insightful)

      by Trepidity (597) <delirium-slashdot AT hackish DOT org> on Friday November 30, 2001 @02:14PM (#2637517)
      No, the entire reason the GPL exists is to promote Free Software; it's the GNU Foundation's opinion that allowing modification of the GPL would not work towards this goal. The main concern is that there would be a plethora of "GPL-derived" but not Open Source or Free Software licenses, thus diluting the usefulness of the license.

      The GPL is, in its essence, an ideological manifesto. Disallowing others from modifying your manifesto is not inconsistent with the GNU philosophy - the only thing they desire is that you allow others to modify your code, not your thoughts.
    • Probably to avoid companies to change the license so it doesn't allow FreeSoftware anymore.

      But this is a good idea, why don't we try to submit this modification to GPL v3 or even GPL v4?

  • Yep thats great! (Score:2, Insightful)

    by Anonymous Coward
    OSI Turns Down 4 Licenses; Approves Python Foundation's

    should read:
    OSI Releases information on licenses, slashdot poster excited, no one else cares.

    Open source needs less licences not more..
    • Open source needs less licences not more..

      That's why this is good news. The licenses rejected were among the most bizarre, redundant or useless licenses yet submitted to OSI. Perhaps that's why they made the news.
    • I wonder ... how you would feel if I said that the Open Source world needs less IRC clients, not more. Seems to me that the stength of open source is its diversity. Microsoft's strength is its fascistic control. One EULA to bind them all....
      -russ
  • Great! (Score:1, Insightful)

    by Anonymous Coward
    Now I can have 6 licenses for my open source project.
  • THE license (Score:4, Funny)

    by chachi8 (160827) <4rgpatqlinkdotqueensudotca> on Friday November 30, 2001 @02:07PM (#2637482) Homepage
    how do you think OSI feels about the definitive license [sourceforge.net]?
  • by A_Non_Moose (413034) on Friday November 30, 2001 @02:08PM (#2637486) Homepage Journal
    besides using all caps in an agreement/contract and triggering the lame lameness filter;

    ...OR OTHER TORTIOUS ACTION...


    All that legalease will keep most mortals a hare's breadth away from comprehending.

    I wonder if "tortious" action is like a gui user dropping back into his/her "shell"?

    {SEG} sorry for the bad puns...I can hear most of you going "tcsh-tcsh"...
    • tortious (Score:3, Informative)

      by wiredog (43288)
      Tortious refers to torts. Which is the fancy way of saying "lawsuits".

      Legal language has lots of latin in it, and the words have very precise meanings.

      • Re:tortious -WRONG (Score:1, Informative)

        by Anonymous Coward
        From: The 'Lectric Law Library's Lexicon [lectlaw.com]

        TORT - A negligent or intentional civil wrong not arising out of a contract or statute. These include "intentional torts" such as battery or defamation, and torts for negligence.

        A tort is an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages. Legally, torts are called civil wrongs, as opposed to criminal ones. (Some acts like battery, however, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties.)

        Under traditional law, family members were prohibited from suing each other for torts. The justification was that allowing family members to sue each other would lead to a breakdown of the family. Today, however, many states recognize that if family members have committed torts against each other, there often already is a breakdown in family relationships. Thus, they no longer bar members from suing each other. In these states, spouses may sue each other either during the marriage or after they have separated.

        Normally, tort lawsuits against a spouse are brought separate and apart from any divorce, annulment or other family law case. Alabama, Georgia, Nevada, New York and Tennessee, however, allow or encourage combining the tort case with the family law case; New Jersey requires it.

        The jurisdictions that still prohibit one family member from suing another include Arizona, Delaware, Hawaii, Illinois, Iowa, Louisiana, Missouri, Ohio, Texas, Utah, Wyoming and Washington, D.C. These places may make an exception when the tort is intentional. See, for example, Bounds v. Candle, 611 S.W.2d 685 (Texas 1980); Townsend v. Townsend, 708 S.W.2d 646 (Missouri 1986) and Green v. Green, 446 N.E.2d 837 (Ohio 1982).

        An injury; a wrong; hence the expression "an executor de son tort", of his own wrong.

        Torts may be committed with force, as trespasses, which may be an injury to the person, such as assault, battery, imprisonment; to the property in possession; or they may be committed without force. Torts of this nature are to the absolute or relative rights of persons, or to personal property in possession or reversion, or to real property, corporeal or encorporeal, in possession or reversion: these injuries may be either by nonfeasance, malfeasance, or misfeasance.
      • Legal language has lots of latin in it, and the words have very precise meanings.

        But just the latin words. English words like "free" or "all" and even "no" very often mean "limited", "some", and "a few" in legalese.... especialy in constitutional law.

  • by BillyGoatThree (324006) on Friday November 30, 2001 @02:11PM (#2637495)
    In other news, I just had lunch. It was eggs with cheese, sausage and banana bread. Now I'm working on modifying the docs for the app I fixed. If you promise to keep me posted on what licenses OSI is rejecting, I'll promise to let you know when I get my hair cut.
    • Flamebait?!? This was at least as informative as the story and vastly more entertaining. Between that and the link someone provided to the "Poetic Licence" I've had my laughs for the afternoon. Moderators, at least keep him above zero.

      It was eggs with cheese, sausage and banana bread.

      I've got to ask, this _is_ ((eggs+cheese)+sausage+banana bread), right? Not (eggs+cheese+sausage+banana bread), which is how I initally read it.

      • I've got to ask, this _is_ ((eggs+cheese)+sausage+banana bread), right? Not (eggs+cheese+sausage+banana bread), which is how I initally read it.

        I think it was ((eggs+cheese)+((sausage+banana)+bread)), or in other words, your normal eggs and cheese as a side to a banana sausage sandwich.
  • To tie in what was said in the most recent Ask Slashdot [slashdot.org], this discussion will evolve into a GPL vs AnythingElse tar pit.

    Let the games begin !

  • WhooHoo! (Score:5, Insightful)

    by Arandir (19206) on Friday November 30, 2001 @02:19PM (#2637548) Homepage Journal
    Not to name names, but one license had a restrictive patent grant that only applied to GPL'ed operating systems.

    And what a bizarre license that was (not to name names). It was essentially the BSD license word for word, with the aforementioned patent grant. Yet you couldn't legally use the software on a BSD licensed operating system.

    Another was more of a rant than a license.

    A delicious rant to be sure. I quite enjoyed it, despite its wrongheadedness. It could not be approved of course, since it explicitly denied its own validity.

    The one license that did pass was the Python Software Foundation License.

    Whoohoo! In this age of a million open source licenses, it's nice to see that a sensible license that fills a gap in open source gets approved while the frivolous crap gets flushed.
    • Re:WhooHoo! (Score:5, Interesting)

      by Trepidity (597) <delirium-slashdot AT hackish DOT org> on Friday November 30, 2001 @02:21PM (#2637562)
      Whoohoo! In this age of a million open source licenses, it's nice to see that a sensible license that fills a gap in open source gets approved while the frivolous crap gets flushed.

      I'm not denying that it fills a gap, but a cursory reading of the license doesn't seem to indicate to me what gap it's filling. Why was it not possible/desirable to license Python under one of the existing Free Software licenses, and instead necessary to come up with another one?
      • Re:WhooHoo! (Score:3, Interesting)

        Why was it not possible/desirable to license Python under one of the existing Free Software licenses, and instead necessary to come up with another one?

        Because the Python source code was, at various times, "owned" (copyright was in the name of) Stichting Mathematisch Centrum, the Corporation for National Research Initiatives, BeOpen, Digital Creations, and the Python Software Foundation.

        Guido couldn't release it under the GPL, because it wasn't entirely "his" software to license.

        (Google cache of the license [google.com])
        • Guido couldn't release it under the GPL, because it wasn't entirely "his" software to license.



          More correctly, Guido didn't want to license Python under the GPL, but did want it to be able to be integrated with GPLed software, as well as software under virtually any sort of license.



          (25 pages of Python license history snipped... see the full scoop [python.org] for the current license.)

      • Re:WhooHoo! (Score:3, Informative)

        by Arandir (19206)
        Well, you heard of "weak copyleft?" Well this is "stong unrestricted." You get more permissions than the MIT/BSD license (really), but the license agreement must be retained in all distributions. This is different from the MIT/BSD licenses in that they require the license to be included, but not necessarily applied to, any copies or derivations.
    • Would somebody please name names, and maybe get moderated up?

      Until that happens, this whole story is as pointless as the whole "It" fiasco, which I note reared it's ugly and decidedly non-pointed head on Wired again today.
      • 'It' also reared it's ugly arse in South Park this past week.

        (Not only that, but the airline industry got skewered as well. Although not as much as John Travolta;)
    • A delicious rant to be sure. I quite enjoyed it, despite its wrongheadedness. It could not be approved of course, since it explicitly denied its own validity.
      Is somebody going to post a link, or am I going to have to get nasty?!
  • by topeka (57768) on Friday November 30, 2001 @02:20PM (#2637551) Homepage
    The restrictive patent grant license mentioned was probably the submission from Intel, which was a version of the BSD license with patent language added: From this e-mail [crynwr.com]:

    Intel modified the BSD license in the following ways:

    1. Intel made OPTIONAL the inclusion of a copyright notice (i.e., "Redistributions of source code of the Software may retain the above copyright notice, this list of conditions and the following disclaimer").
    2. Intel added certain definitions derived from the patent license in the Common Public License, and added a license grant under certain Intel patents to distribute Intel software contributions, alone or as incorporated in any operating system licensed under the GPL (version 2.0 or later).
    • An OS means different things to different people. Linux has GPLed parts, but many BSD licensed parts, X licensed parts, QPL / MPL licensed parts, and more. Is a GUI an essecntial part of the OS? Are all the BSD licensed IP tools?

      Licensing something for GPLed `OS's is nearly as bad as the FHS saying /opt is defined by including `optional' software. Nobodies defeinition is the same and its asking for a major disagreement.
  • by Anonymous Coward on Friday November 30, 2001 @02:23PM (#2637572)
    errg, hit the submit button by mistake.

    The Poetic License [chrisbrien.co.uk]

    states that:
    "The software covered by this license makes no claims about copyright, copyleft or even copy centre (where you take it down to the copy centre and copy it). Make as many copies as you want, for whatever purpose, even if it is to sacrifice those copies in a great floppy pyre. You may even claim copyright, ownership of trademark, originality or patent. You may even sue the real originator for a breach of your claimed copyright. However, this license can't guarantee that this will be in any way successful."
    (har de har har)

    The CMGPL [crynwr.com]
    The GPL without a bunch of sections? Which ones, you ask? Mostly the ones that don't count!

    The Intel BSD+Patent License [crynwr.com]
    Like BSD, but grants a patent license. Patent license is specifically not granted to use under non-GPL OS's, or with modified versions, although copyright license is the same as BSD.

    • The CMGPL is, well, stupid. They should just use the LGPL if they want to allow linking to proprietary apps. Duh. And axing the preamble? Why bother?
  • Sorry, not all of us are familiar with the OSI Licensing scene -- what are the three rejected licenses? It's kinda hard to get into the story when it assumes you already know what it's talking about.

    Anyone care to enumerate the other three licenses?
  • GPL (Score:4, Funny)

    by uslinux.net (152591) on Friday November 30, 2001 @02:39PM (#2637657) Homepage
    Anyone besides me see the humor in the only FSF item which does *not* fall under the GPL is the GPL license itself :-)
    • Re:GPL (Score:3, Insightful)

      by ajs (35943)
      No, there are a great many other documents, objects and other "items" which are owned by the FSF and are not covered by the GPL.

      The GPL is a tool which was created with one goal: to allow modification and distribution of software. The goal was not (even given the FSF's fondness for recursion) to allow modification of the GPL.
  • So the Kallisys Reflexive License was the one turned down due to insufficient discussion... Right?
    (It was apparently submitted for application but never approved). Somebody confirm please, me curious :)
    • There's wasn't much discussion on the KRL. Don't really know why. I read it through several times, couldn't grok it, so never bothered commenting. Remember, license-discuss isn't composed of attorneys, so a license that doesn't parse to laymen English won't get much discussion.
  • by Spinality (214521) on Friday November 30, 2001 @03:02PM (#2637782) Homepage
    The Artistic License [opensource.org] is one I like. I'm always suspicious of an open source license that either a) has a polemical preamble [opensource.org] that tries to coerce your behavior, b) reads like the team of lawyers [opensource.org] who wrote the license are making a lot more money than the developers, or c) presumes [opensource.org] that the only good programmer is one who either programs as a hobby, is an academic, works for a big company that can afford to subsidize the programmer's time, or works for an end-user company that can afford to build complex systems strictly for internal use -- in other words, that there's no moral way to be a software vendor.

    Yeah, I know there's plenty of room for argument all around, but my sympathies are with small software vendors who need some way to get enough revenue from 100-5000 licenses to pay salaries. The Artistic License strikes me as compact and commonsensical, and a good model for many situations. And of course it has the coolest name. :-)
    • If you're going to use the Artistic License, I'd strongely suggest using v2.0, the new one created for licensing Perl 6. The original Artistic License (used on all previous Perl versions) is badly written - in its attempt to be clever rather than legalistic, it ends up being extremely vague in places, so much so that depending on the legal interpretation of some of the vague passages the license might not be a free software license at all.
  • by brer_rabbit (195413) on Friday November 30, 2001 @03:06PM (#2637800) Journal
    I don't know why more people don't use the MindGuard Public License [zapatopi.net] (as used with MindGuard). An excerpt:
    A "work based on the Program" hereinafter means either the Program itself or a work containing a portion or the totality of the Program either with or without modifications, translations, transliterations, or transformations. (Hereinafter, the term "modification" shall include, without limitations, the last four terms of the previous sentence excluding the term "or" unless "or" is used to refer to a boolean function applied to modify the Program or any part of it.) Each licensee is addressed as "you", as in the statement "You are a licensee". (The statement "You are not a licensee" will hereinafter have no logical meaning.)
    • Although this license states that they will not be liable for any damages caused by the program in question, there is no mention of damages caused by the license itself (in my case, coffee spurting out of my nose while reading the license).

      I'm gonna sue their asses off!
  • As if free-as-in-speach and free-as-in-beer weren't enough, now we can add free-as-in-Python to the list. :)
  • Seriously. I wrote a lot of public domain code a while back, that I found in many systems later on.

    And then for some of my political software work, I used the Freeware for Feminists license - basically free, so long as the user was sympathetic with a feminist cause, and not granted for anti-feminist usage. Kind of viral, but I did make a splash screen and gave out source code with the compiled code.

    -
  • hmm (Score:1, Insightful)

    by Anonymous Coward
    what about all the dozens of licenses they have
    IGNORED in the past 2 years?

    if you have big $, OSI will grant approval. if not, you will be ignored.
  • This is just as bad as copyrighted laws and regulations.
  • A Good License (Score:3, Interesting)

    by Arandir (19206) on Friday November 30, 2001 @04:55PM (#2638380) Homepage Journal
    After seeing half a million OSS licenses, I have concluded that the vast majority of them just don't get it. I'm not talking about the four "freedoms" of the FSF, but rather the freedom of the user not to be insulted by the licensing. Lawyers may love confusing, convoluted and non-parsable legalese, but the users do not.

    (The following is my opinion, so please read it as such. When I refer to a "good" open source license, I am making a qualitative assessment, and not trying to set up criteria for any approval process but my own.)

    The purpose of open source licenses are to grant the user a broad set of permissions and rights over and above those granted by copyright law. Their purpose is not to bind the user to the will of the licensor. A good open source license must be based on copyright law, not contract law.

    The first thing a good license should do is grant unconditional permission to use the software. This should be so basic it to not be worth mentioning, but you would be surprised as some of the licensed submitted. Additionally, the use of the software should not be trigger for anything else. We don't want any EULA's here, thank you. The second thing a good license should do is clearly inform the user of their permissions. These permissions must not be predicated upon acceptance of any agreement. A permission may have conditions attached to it. If there is anything you wish the user NOT to do, make it a condition. Next the license should have a warranty disclaimer, to assure the user that they will not be sued if they contribute stuff to the project. You may (and should if you're a commercial project) include a real warranty as a separate legal document.

    Notice that I haven't included anything about what you require the user to do. No blanket obligations. That's on purpose. Open Source and Free Software are NOT about making people do things. It is okay to make an obligation be a condition to a permission. It is not okay to make an obligation be a condition to the entire license. Remember, this is about what the user can and cannot do.

    Software licenses as contracts was an invention of the proprietary software industry. There was a time not that long ago when copyright law as very vague as to the status of software. So the industry decided to use contract law instead, and created licenses that had such bizarre phrases in them as "by reading this sentence you agree to the following obligations...". That's bullshit and Open Source and Free Software should have nothing to do with such rubbish.

    • You're a bit off target here with some facts.

      First off, licenses aren't written for end users. Yes, they're purportedly intended to inform a user of their privileges, but the true audience of a license is a judge and a pack of lawyers. The important thing for a license isn't that it's clear to joe blow, but that it's clear in court: a contract that's clear to joe blow is meaningless if a court can't make heads or tails of it. Confusing terminology in contracts is the result of two problems. First, colloquial language is very subjective and very slippery, and so legal documents have to be written in a specialized dialect of English that has arisen over centuries of effort. It's the same problem with programming languages: we can't have a truly natural language programming language because it's too imprecise. But just as engineers have an easy time reading and understanding source code, so do lawyers have an easy time reading legalese. The second problem is that most lawyers have a very poor mastery of both English /and/ the law, so an already dense dialect is made nearly incomprehensible.

      The next thing is that all licenses are based in contract law. There is no room in copyright law for granting permissions beyond those explicitly enumerated (and irrevocable) in copyright law. If you want to grant extra permissions, or revoke certain permissions, then you /must/ use contract law. You have no choice. That's the primary purpose of contract law: to provide a framework under which two parties can clearly enumerate an exchange of permissions or other benefits.

      Next, you have to consider the purpose behind an OSS license. One person may have a different purpose from you. To me, the term OSS means "you can read my source code, and you can contribute changes back to me". That's it. It doesn't say anything about whether or not someone can use the source code. It doesn't say anything about whether or not someone can produce derivative works. Sure, GPL talks about those things, but that's because GPL goes farther than the simple concept of OSS. The same goes for other OSS licenses: they will almost always go beyond the simple concept of OSS, building on top of the concept in order to further the purposes that the author has in offering the software as OSS in the first place.

      As an example, someone might be making their software OSS for the purpose of crushing Windows. It shouldn't be too surprising to see that their license contains a clause prohibiting the porting of the software to any Microsoft operating system, either natively or under an emulator. Does OSS say anything about that? Nope. Does GPL say anything about that? Nope. But that author wants to crush Windows, so he's not very well going to allow his software to be used under Windows, now is he? He's got a purpose, and his license reflects that purpose.

      Then there's the last point. Software licenses /as contracts/ are not an invention of the proprietary software industry. Software licenses /in their entirety/ are an invention of the proprietary software industry. Specifically, an invention of Microsoft. Before Billy went on a rampage about people "stealing" his BASIC interpreter in the early 70s, there were no software licenses at all. Software was freely distributed or it was custom coded under contract for a specific client's internal use. That was software. There was no (serious) retail software at all. Then Billy got upset at those pesky Altair users and went off on a tear. After years of work, the courts started upholding software copyrights, and the entire retail software industry was born.

      The only thing that software copyrights do is to allow the author of software to restrict his software's distribution. Once that's in place, the author can then impose a license (read: contract) on the user for the software. Without software copyrights, the licenses would be meaningless, because a user could just say "naw, I'm not gonna agree to the license, so it doesn't bind me, but I'm gonna use the software anyway because you can't prevent me from getting a copy of it."
      • I disagree.

        Firstly, I think that in any legal agreement that's put forwards in good faith one of the most fundamental objectives must be that the parties to it understand it. A contract between Microsoft and IBM can be thoroughly incomprehensible without careful interpretation by a team of lawyers because that's the level of attention that those companies can give it. A contract between IBM and its most junior employees should be comprehensible by those employees with the level of resources they can reasonably be expected to have. Software licences, whether proprietary or free, should be designed to be comprehensible to the people who are being asked to agree to them.

        There's nothing wrong with a highly legalistic licence expected to be used amongst companies or individuals that will have lawyers examine them closely and that can be the objective in a free software licence but if you're intending it to be used more widely then you should make sure it makes sense to others. Would you want to be in the position of suing someone who had agreed to your licence in good faith believing they had more rights under it than they did simply because you'd made it incomprehensible? Or do you want to discourage anyone from actually contributing to your project because they don't understand what rights they have?

        Secondly, in the context of licences intended to be used internationally I think that attempts to be clever with the legalese are misguided. Sure your obscure term of art wins you points in your home jurisdiction but elsewhere it may be interpreted completely differently - it may even have an established contrary meaning. And no, you can't just assume that foreign courts will accept any clauses you put in that forbid them from interpreting the contracts under their own laws.

        Thirdly, you're simply wrong in your assertion "The next thing is that all licenses are based in contract law. There is no room in copyright law for granting permissions beyond those explicitly enumerated (and irrevocable) in copyright law."

        The one thing that copyright law does give the copyright holder is the right to give people permission to do the activities that are otherwise prohibited by copyright law. That's the whole point of it. If I own copyright on a work then I can say "you may copy this", no contract there it's purely a permission (a licence) I can choose to give. Equally I can say "you can copy this once", "you can copy this but only once per year", "school teachers may copy this but nobody else" or "anyone anyone whose foot fits this slipper may copy this". None of those are contractual. They are all permissions (licences) that can be granted by a copyright holder.
        • It's not always possible (in fact it rarely is) to write a license that it simultaneously rigorous enough for a court and comprehensible enough for the average person. That's why a lot of modern licenses have commentaries at the beginning that attempt to explain the goals behind the license. The GPL is a good example of this. But the commentary is just that: it has no importance in legal proceedings except in that it speaks to the intentions of the parties.

          You have to look at it the same way as a program and its users' guide. We programmers have little problem reading source code (even complex source code) and figuring out what's going on. But joe blow can't do that. Both of us benefit from the users' guide: joe blow so he can make sense of what he's seeing, and us so that we can figure out whether or not a particular behavior is a bug or if it's intentional in some strange way. But as far as the computer is concerned, the users' guide is meaningless. The code is the be all and end all of the system's function.

          Secondly, in the context of licences intended to be used internationally I think that attempts to be clever with the legalese are misguided. Sure your obscure term of art wins you points in your home jurisdiction but elsewhere it may be interpreted completely differently - it may even have an established contrary meaning. And no, you can't just assume that foreign courts will accept any clauses you put in that forbid them from interpreting the contracts under their own laws.

          That's certainly true. Unfortunately there isn't a whole lot of precedent about the validity of choice of jurisdiction clauses. English common law countries tend to obey them (and US courts seem to always do so). But I can't speak about European common law countries, Confucian law countries, or others.

          But this whole issue about things happening internationally is really quite new. Before the computer age, international commercial agreements were nearly always exchange-of-goods, so there really wasn't any kind of licensing issue. There were certainly cases of a foreign manufacturer buying a production model of someone's invention, then copying it and producing it themselves in their own countries. And the few court proceedings in these matters were nearly always ineffective. But with the rate at which things are going, we can expect to start seeing a whole lot more cases discussing international licensing.

          Thirdly, you're simply wrong in your assertion "The next thing is that all licenses are based in contract law. There is no room in copyright law for granting permissions beyond those explicitly enumerated (and irrevocable) in copyright law."

          The one thing that copyright law does give the copyright holder is the right to give people permission to do the activities that are otherwise prohibited by copyright law.


          You're thinking about contract law. Copyright law says "this thing is owned by the copyright holder, and he can prevent anyone he wants from getting access to it" (basically). The only variant that exists in copyright law is the concept of "public domain": a person who would otherwise hold copyright over something can put that thing into the public domain, in which case no one has differential rights to that thing. Contract law says "different parties have different rights, resources, and privileges, and they can negotiate exchanges of those rights, resources, and privileges under these rules." Copyright grants a privilege to one party that is excluded from other parties. Contract law influences how the copyright holder can grant his priveleges to other people.
          • You're thinking about contract law. Copyright law says "this thing is owned by the copyright holder, and he can prevent anyone he wants from getting access to it" (basically). The only variant that exists in copyright law is the concept of "public domain": a person who would otherwise hold copyright over something can put that thing into the public domain, in which case no one has differential rights to that thing. Contract law says "different parties have different rights, resources, and privileges, and they can negotiate exchanges of those rights, resources, and privileges under these rules." Copyright grants a privilege to one party that is excluded from other parties. Contract law influences how the copyright holder can grant his priveleges to other people.

            Okay, it's some years since I got my law degree and it's in UK law whereas I would guess you're talking from an American perspective but imho you're just plain wrong. Granting someone permission to copy and distribute your copyrighted work does not in any way require a contract just as giving someone a gift doesn't require contract law and telling someone they can enter your house, use your computer, or borrow your car does not require contract law. You can use a contract in any of those situations but if all you're doing is giving permissions then contract simply doesn't come into it.
            • Every agreement constitutes a (potentially valid) contract, even if that contract is verbal or even if it's implied.

              And, yes, I'm talking about US law.
          • Contract law says "different parties have different rights, resources, and privileges, and they can negotiate exchanges of those rights, resources, and privileges under these rules."

            Cool. Too bad it doesn't apply to most Open Source licenses. The operative phrase in your quote is "negotiate exchanges". Since that's how I always understood contract law, we must be in agreement on something! But I don't understand where the negotiation or the exchange comes in when I download the Linux kernel and start distributing it. I have negotiated nothing! I have given nothing back to Linus and Friends!

            If you look at the typical contract, you will see certain attributes. First, both parties are aware of each other. Second, negotiation of terms is possible even if the negotiation does occur. Third, both parties receive something of benefit. Finally there is an explicit agreement. None of these attributes are present when I download and start legally distributing the Linux kernel. Linus and Friends are not aware of me, or of the fact that I possess a legal copy of the kernel. And it is not possible to negiate terms because a line of communication has not been established (although that communication could be initiated by me). I receive benefit from the kernel, but Linus and Friends receive nothing from me, not even the satisfaction of knowing that I am even using it. Finally, there is no explicit agreement. No signature, no handshake, no verbal "I agree", no clickthrough, no filling out of registration cards, nothing. A transaction of sorts has occured, but there is no contract.
      • First off, licenses aren't written for end users. Yes, they're purportedly intended to inform a user of their privileges, but the true audience of a license is a judge and a pack of lawyers.

        It depends on the license. For the MS EULA, you are certainly correct. But software written by developers that expect/invite/encourage participation in the development process should have a license written for developers. Of course lawyers and judges will be one audience for the license, but they will not be the primary audience.

        The next thing is that all licenses are based in contract law. There is no room in copyright law for ranting permissions beyond those explicitly enumerated (and irrevocable) in copyright law.

        Here's a sample license: "You may freely copy, distribute, modify, translate, or otherwise transmit and transform this software without restriction." Just how does this qualify as a contract? Where is the agreement? Where is the consideration? Are you saying that the above license is not valid?

        ...to provide a framework under which two parties can clearly enumerate an exchange of permissions or other benefits.

        What exchange? In the case of the Linux (as an example) I have given nothing to Linus Torvalds. No money. No pledges of royalties. No promises that I will ever contribute anything back to the project. I'm not grantingd him any permissions or benefits. Heck, Linus and I have never even met, so how can we possibly exchange anything!

        Once that's in place, the author can then impose a license (read: contract) on the user for the software.

        Contracts are never "imposed." They must be agreed to voluntarily by both parties.
        • It depends on the license. For the MS EULA, you are certainly correct. But software written by developers that expect/invite/encourage participation in the development process should have a license written for developers. Of course lawyers and judges will be one audience for the license, but they will not be the primary audience.

          Why would you ever write a license that you don't want to be enforceable? If you want it to be enforceable, then it has to be (principally) comprehensible in court. As to determining whether or not a contract is clear, the court will look at the language itself, not defer to the statements of the defendant or plaintiff. The only exception is when both defendant and plaintiff agree on the interpretation of a particular clause, in which case the court will take that interpretation rather than the interpretation that the court might find on its own. But in such a case, I think you'd agree that the license is sufficiently clear.

          Here's a sample license: "You may freely copy, distribute, modify, translate, or otherwise transmit and transform this software without restriction." Just how does this qualify as a contract? Where is the agreement? Where is the consideration? Are you saying that the above license is not valid?

          Agreements between parties fall exclusively under the jurisdiction of contract law. The parties may, in fact, act under an agreement that is an invalid contract, but it is still under the jurisdiction of contract law.

          More directly, let's look at your sample license. Presumably, the person offering the license possesses a copyright in the software. So the holder is granting certain distribution and modification privileges. That's the consideration that he's giving. The license doesn't explicitly enumerate consideration that the recipient is granting back to the holder, but (and this is an important principle in contract law) since the holder is the party that offered the contract, it is presumed that the holder is gaining an automatic intangible concession in return (such as the pride of knowing that other people want to use his software). The important thing is that the person who offers terms is presumed to agree to the terms; if he didn't agree to them, he wouldn't've offered them in the first place.

          Then, if the recipient of the software actually does exercise one of the privileges granted to him in the license, then he has also agreed to the license (contract). This is another important concept in contract law: implied consent. If one party exercises a privilege granted only under a contract, then that party has consented to that contract. This concept actually doesn't exist in the text of the legislation that forms contract law. This exists in a more important place: legal precedent.

          So the example license that you present has offer, has exchange of consideration, and has consent. All three of the keystones that are required for a contract to be valid.

          What exchange? In the case of the Linux (as an example) I have given nothing to Linus Torvalds. No money. No pledges of royalties. No promises that I will ever contribute anything back to the project.

          I'm glad that you brought up Linux. Linux uses a fragmented intellectual property model, in which the entire body is covered by a single license, but the ownership of the individual pieces are retained by the original authors. So when you use Linux, you are entering into an agreement with each of the separable authors of the kernel.

          As one of the authors of the Linux kernel (interval timers, original /proc filesystem, assorted bugfixes, and the PCI WDT support), allow me to explain the consideration that you have granted back to me by using Linux. My principle motivation in being involved in Linux is to weaken Microsoft. By using Linux, you are not using Windows on that same box at the same time. Therefore, you, by using Linux, are acting to weaken Microsoft. So by using Linux, you are volunteering your time and effort in support of one of my goals. That's the consideration that you give me.

          I can say for certainty that the same consideration applies to a large number of the people involved in the Linux kernel, but I will neither name names, nor will I attempt to enumerate all the considerations that are gained by all the individual contributors to Linux (primarily because I don't know them all).

          I'm not granting him any permissions or benefits. Heck, Linus and I have never even met, so how can we possibly exchange anything!

          If physical meeting were a requirement for a binding contract, then the only commerce that would exist would be face-to-face barter. Mail order, internet sales, telephone solicitation, early book sales (even in person), credit cards, checks, ATM cards, and even paper currency all exist only because of nonlocal agreements to contracts.

          Contracts are never "imposed." They must be agreed to voluntarily by both parties.

          That's only sort of true. As the holder of a copyright, I can offer a contract without allowing negotiation. True, the contract doesn't bind unless the other party agrees, but in that case the other party doesn't get my software, either. So I have effectively imposed my contract on all people who want to use my software.

          This is the central argument behind the (many) suits over the years asserting that Microsoft has illegally leveraged its monopoly power to impose contracts.
          • My principle motivation in being involved in Linux is to weaken Microsoft.

            As an aside...

            What happens when Microsoft becomes weakened? Will you subsequently abandon Linux development?
            • It depends on how weak microsoft gets, and how much time my other projects are demanding.

              If microsoft gets so weak that there's no chance of it ever recovering, then I'll consider that goal to be achieved.

              If there's something new that I need out of Linux, I'll probably keep working on it (I like my mini beowulf cluster, after all). Otherwise I might dust off that old OS that I was writing and abandoned when I started up with Linux.
  • by nbvb (32836) on Friday November 30, 2001 @05:16PM (#2638490) Journal
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  • sucks major butt, but you don't know that because when you make the conversion you don't know it...you think you're still cool

    Why do we have an organisation telling us what licenses we can and cannot use? I used a disapproved of, but still open source IMHO license...what then? Will the OSI call up the FBI to bust down my door?

    Fuck the establishment, we don't need anymore conformity factories.
  • Back in my BBS days, I downloaded some software that came with the following:

    This software comes with no warranty. If it breaks, you get to keep both pieces.

  • You guys all have it wrong. The OSI approved the Monty Python license, not the one for the programing language.

    1. No Poofters

    2. This program may not be used in a bat of custard if there is anyone looking

    3. Three shall be the number of the count and the number of the count shall be three, thou shalt not count to two unless thou also counteth to three, nor shall thou count to four, five is right out.

    4. There is no 4

    5. Is right out

    6. SPAM SPAM SPAM SPAM! Wonder SPAM! Wonderful SPAM

    7. The program to which this license is attached may be used for any purpose whatsoever without payment provided that (1) this license is included in its entirety intact and (2) the provisions of sections 2, 4, 5 and 8 are complied with on alternate Wednesdays and sections 8, 9 and 4 are complied with at all other times

    8. All copies of this program be distributed with the distributors choice of (a) the program source or (b) a bottle of Wostershire Sauce made from genuine Wostershires.

    9. EEEK!

    10. Naaawwwwww...

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