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OSI Approves Two New Licenses 225

An anonymous reader writes "The Open Source Initiative approved two new licenses. One, the Academic Free License is a MIT/BSD-like license . The other one, the Open Software License is an apparently GPL-incompatible "viral" license with some obnoxious clauses. Both have an interesting "mutual termination for patent action" clause - basically, the license terminates if you file a lawsuit in any court against any software that is licensed under an OSI approved license containing the same clause."
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OSI Approves Two New Licenses

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  • Can someone explain how the OSI is doing something good for the community by endorsing incompatible license variations?
    • by Carl ( 12719 ) on Sunday September 29, 2002 @04:24PM (#4354958) Homepage
      I agree. Why didn't he just work with the FSF on the GPL version 3?

      The "Open Software License" (interesting name for a license) seems to be a copyleft license incompatible with the GPL. Sigh... Is it really smart for an OSI board member to add new incomptatible copyleft licenses to the mix and also ask for OSI certification. Hmmm...

      There are some interesting things in there such as the patent thing, but is it really smart to mix up copyrights and patents in the same legal document?

      The license seems a bit US centric which might put off non-americans.
      • Because there are people who honestly believe that the GPL is incompatible with a number of business models, and that those incompatibilities are "by design" and so not likely to vanish in a 2.x->3.x transition.

        Maybe the GPL works for you, but its viral nature does not work for everyone.

        • "Maybe the GPL works for you, but its viral nature does not work for everyone."

          The GPL can be summed up as thus:

          "You can do whatever you want with this code, but you must pass along this same freedom to someone who wishes to do the same with what you produce with it".

          I don't see what the problem is. Someone who wants to use GPL code in an "embrace and extend" project is prohibited by copyright law from doing so, just as someone who wanted to use MS code would be prohibited.

          I DO like the patent clause in these new licenses. I wonder if anything like that will be put in GPL 3.0?
          • The problem is that the GNU GPL is itself an "embrace and extend" project. Everything that uses code that is licensed under the GPL must, according to the terms of the GPL, be licensed under the GPL itself. Anyone who might want to use code under the GPL in a closed source product is not given the freedom to under the GPL.

            It is a viral license. It isn't necessarily a bad thing, but it reflects a certain philosophy which not everyone holds. I personally believe that there is room in the world for both proprietary, GPLed, and unrestricted code (ala BSD-style licenses). Makes the world go 'round. GPL-only, proprietary-only, or BSD only are all bad ideas.
          • The problem is very simple. Say I am a commercial developer who licenses the XYZ library from another company, and distributed it in a program which also includes getopt or some other GNU library.

            According to Section 2b of the GPL: "You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."

            So the entire application as distributed must be made GPL, including the XYZ library licensed from a third-party. This is why the GPL is a dangerous, viral license and is why we should all be using BSD.

            And how can we re-implement GNU software if we have had access to the source code? Having seen the source-code of the bash shell in college, can I write my own shell without putting myself or my company at risk of a lawsuit?

            The GPL is a work developed by a man who is wholly dedicated to wiping out intellectual property as it exists today. It must be interpeted through those lenses.
        • The GPL "infects" only code linked into the same executable program. This one infects any derivative work, and has no "mere aggregation" clause like the GPL does. It may not be OK to put any other software on the same CD-ROM as code licensed under the OSL, as the CD-ROM as a whole could be considered a derivative work. An OSL program will need to be kept rigidly isolated from other software to a far greater extent than a GPL program.

      • but is it really smart to mix up copyrights and patents in the same legal document?

        It's exactly as smart as allowing patents and copyright to cover the same thing (like software). No more. No less.

        But seriously, if clauses like that are actually legal, holy shit. Put something like that into the GPL and if ANYONE in your company sues some OS programmer for patent infringement and you're using Linux for ANY of your internal computers... *LICK*. You have o stop using your Linux boxes IMMEDIATELY. Or else it's a DMCA violation, I'm sure. :P It would REALLY segregate the software world into open/closed sides.

        Although my vote doesn't count for much, I hope the FSF is willing to add a clause like this into the GPL, or is at least willing to allow the GPL to fork and let people decide. If not, I would recommend dumping Linux and moving to a fork of *BSD with a clause like this added.
    • It's this little thing called "choice". The more well worded, legally defensible open source licensing choices out there, the more choice software developers have when releasing their software. Choice is good for the community.
    • Can someone explain how Linux is doing something good for the community by creating an operating system incompatible with MS Windows?

      Choice is your friend.
  • External Deployment (Score:4, Interesting)

    by srw ( 38421 ) on Sunday September 29, 2002 @04:15PM (#4354920) Homepage
    The external deployment clause is interesting to me. As I read it, if you use a modified OSL app on your website, you need to make your changes public. As I read the GPL, you don't need to make your changes public unless you distribute the binary.

    • >
      if you use a modified OSL app on your website, you need to make your changes public. As I read the GPL, you don't need to make your changes public

      Currently, that is GNU GPL v2, you are right. But the FSF has already endorsed the Apero FSL as a draft for this change in GNU GPL v3. This is to keep Internet ASPs honest.

    • by Niten ( 201835 )

      Perhaps the external deployment clause is one useful clause that was overlooked by the authors of the GPL - in effect, there is no practical difference between running a distributed binary on your system and submitting input and viewing output on your system for code that is executed on a separate server...

      What I find more interesting, though, is the Mutual Termination for Patent Application clause in the Open Software License. This, ideally, would prevent "IP Warriors" from using your software in their arsenal, but I think that practically this clause would serve said Patent Warriors with no incentive to act somewhat ethically, but instead can only serve to further fragment the world of Open Source licenses.

      This brings up a bigger point, one that has certainly been raised before: Are all these OSS licenses really necessary, or productive? In an ideal world, I think, we would all be able to use the BSD license without having to worry about greedy corporations and individuals "embracing and extending" our code; this is not an ideal world, however, and I firmly believe that we need the protection that licenses like the GPL and LPGL can afford us. That said, having two more-or-less functionally equivalent, yet completely incompatible, GPLs lying around does nobody any good. The goal of the GPL, and supposedly the OSI, is to foster cooperation between Open Source applications, while preventing closed-source companies and individuals from using our code. But by having two or more incompatible GPLs we can only prevent OSS projects from collaborating.

      I think that a massive consolidation of OSI-approved licenses is in order.

      • This brings up a bigger point, one that has certainly been raised before: Are all these OSS licenses really necessary, or productive? ... I think that a massive consolidation of OSI-approved licenses is in order.

        That is of course what the proponents of AFL and OSL have in mind, that everyone will relicense BSD-like projects to AFL and, and relicense GPL and other copyleft projects to OSL, and abandon all of the others. Good luck.
    • by Ed Avis ( 5917 ) <ed@membled.com> on Sunday September 29, 2002 @04:45PM (#4355066) Homepage
      But that 'external deployment' stuff restricts how you may *use* the software, not just how you may distribute copies. It seems like enough to make the program non-free. Consider the DFSG: 'no discrimination against fields of endeavour'. Doesn't that mean no special requirements for using the program in a web page as opposed to a command-line app?

      Also this means that the licence becomes an EULA, because it purports to restrict use of the software and not just to grant permissions for copying. The GPL's enforceability is based on copyright, but copyright (in most countries) does not require you to get permission before merely running a computer program.

      Look at the text: 'you agree that any external deployment shall be deemed a distribution'. But you can't 'agree' that unless the licence is considered some kind of contract. With the GPL, it is up to copyright law to decide what counts as distributing the software. Here the licence attempts to extend copyright to count all sorts of random things as infringement, but I don't see how a court would agree with that.

      Personally I've long since given up taking notice of anything the Open Source Initiative certifies. Ever since they gave their stamp of approval to that Apple licence which allows 'revokation' at any point in the future when Apple's lawyers decide not to contest a patent infringement in court. The FSF may wrap its pronouncements in ideological justification which is offputting to some, but at least when they say that a program is free software you can be sure it is.
      • Public performance (Score:5, Interesting)

        by yerricde ( 125198 ) on Sunday September 29, 2002 @05:09PM (#4355153) Homepage Journal

        Doesn't that mean no special requirements for using the program in a web page as opposed to a command-line app?

        A license to copy and modify a program does not automatically confer the right to perform the program publicly.

        But that 'external deployment' stuff restricts how you may *use* the software, not just how you may distribute copies. It seems like enough to make the program non-free.

        Not how you use it, but how you modify it. Modification, or preparation of derivative works, is normally the exclusive right of the copyright holder. So is public performance. GPL2 claimed "if you distribute binaries, you must distribute source code". GPL3 claims additionally: "if you modify the software and publicly perform it, you must distribute source code."

        • Hmm, 'public performance', I hadn't thought of that analogy. I wonder if the courts will accept it? Probably not, since when you publicly perform a piece of music, the audience hears the music itself. But setting up a website running some software does not distribute parts of that software - neither the source code nor the binaries. So it's hard to say that copyright is infringed.

          Good point about modification being the exclusive right of the copyright holder, I can accept that even if not the 'public performance' analogy.

          If the GPL version 3 does end up restricting webpageification, then I guess the FSF will have to reconsider its definition of free software a little. At the moment it is 'use, share, change' and if you have those rights then you can 'change' the software to turn it into a web page and then 'use' it. Those rights would no longer be absolute.
          • Online applications were not common when the GPL was written. The emergence of applications that are only executed online is a hole in the intent of the GPL. At least, it is a hole in the eyes of the FSF. The fear is that someone could take GPL code, privately modify the hell out of it and then use it to deploy an online application. If the majority of software were to move in this direction then the old style GPL would become exactly the opposite of what it was intended to do. I suppose the idea is that even if software becomes something that is mostly executed remotely that the ability to deploy and modify it independently still be preserved.

            I'm not sure if that will fly or not. I'm not terribly worried about it in any case. I'm far more worried about the rumors that the FSF intends to un-LGPL major libraries like glibc and GPL them. That would make it necessary for the distros to fork the last LGPLed versions. It would be chaos while a whole slew of new maintainerships is sorted out. Note well that would NOT "make commercial software on Linux impossible!!". It WILL, however, definitely give the Linux marketplace additional uncertainly that it does not need right now.
  • nasty clause (Score:3, Interesting)

    by GoatPigSheep ( 525460 ) on Sunday September 29, 2002 @04:17PM (#4354924) Homepage Journal
    Both have an interesting "mutual termination for patent action" clause - basically, the license terminates if you file a lawsuit in any court against any software that is licensed under an OSI approved license containing the same clause.

    So now open-source licenses are trying to restrict our legal rights? I can't see any company adopting any software that uses these licenses if it does not allow them to exercises their legal rights to file lawsuits. It seems this clause is just a way to try and take away people's freedom.

    • Re:nasty clause (Score:2, Insightful)

      by AvitarX ( 172628 )
      They are aloud to file lawsuits, they just cannot use the software if they do. All it means is that by using this software you are allowing all of your patents to be used in other open source software.
      The company is not even giving upo thier patent, they could at any time stop using/distributing/deploying the software and sue to their hearts content.
      Because it is a patent and not a copyright, it can be selectivly enforced and compettors not releaseing open sourced software that benifit everbody still cannot use the patent.
      • If Company A uses OSS Product B, and then several months later OSS Product C uses and abuses Company A's patent, then they have to drop Product B, even if it has nothing to do with their patent or Product C. Competitors could open source their software (on proprietary hardware), and Company A couldn't do anything without losing their investment in Product B. Effectively, this prevents any company using any software with theses licenses from enforcing any software patents.

        This is, of course, the desired effect, but you can be sure that any company with a software patent or any company that thinks they may in the future have a software patent will avoid this stuff like the plague.
        • Really all it is doing is taking the GPL a step further though. There were no software patents when the GPL was first released, so no one even thought about it. Now there are, and a software patent can effectivly make software closed source (well non free anyway). This is just a viral clause that takes the GPL one step further and honestly would not shock me if it ended up in the GPL.
          Software patents are far more damaging to OSS then nonpublished specs are, and this is a way to fight them.
          You could even make a BSDish liscence, that said that only this clause must remain and allow closed source derrivitives. Protecting the rights of coders to code whatever they wanted.
          I am sure that there are many of companies willing to take a head start in developement in exchange for not being able to patent the results. I say this because there are plenty of software companies without software patents.
    • Re:nasty clause (Score:2, Interesting)

      by ShadowDrake ( 588020 )
      I think it's a 'poison-pill' clause, intended to discourage a certain behaviour.

      Software patents make it theoretically possible to have software that's libre free (in terms of the copyrighted material) but still restricted (in terms of patents). Big example: GIF, MP3, and now JPEG patents.

      A clause like this makes it expensive for a patent-holder to try to enforce software patents against Free Software. They might get a few thousand bucks in settlements, assuming their claims aren't thrown out, but at the cost of losing the right to redistribute software they may need for their business, or even products that make up part of their product line.

      I like it, in a way. The Free Software movement can't really offer cross-licencing agreements, or even really buy patent licences, but now they have something they can use for leverage.
    • The GPL already contains similar wording with respect to patents. The purpose is to prevent the following situations:

      1. A company puts their code out under an OSS license. It becomes really popular, but unbeknownst to the public, the techniques it uses are patented by the compnay. Company turns around and demands royalties from everyone who made it popular.

      2. An OSS product is released, and unbeknownst to its author, someone else has a patent. This someone else waits for it to become popular and then demands royalties.

      Mutual termination ensures that if anyone asserts patent royalties then everyone loses all rights to the software. This way, none of the users have the right to use the software any more (in the Copyright sense), and so since they can't be using it, they cannot be forced to pay royalties. This keeps the patent owners honest - they can't hijack OSS to further non-OSS goals.

      BSD, X11, etc don't have such protections, which makes them a riskier proposition when dealing with patent owners. The way I read it, the Academic Free License is basically BSD, with patent protection built in.

      • Mutual termination ensures that if anyone asserts patent royalties then everyone loses all rights to the software. This way, none of the users have the right to use the software any more (in the Copyright sense), and so since they can't be using it, they cannot be forced to pay royalties. This keeps the patent owners honest - they can't hijack OSS to further non-OSS goals.

        Not quite. Where's what the clause says:

        9. Mutual Termination for Patent Action. This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License if You file a lawsuit in any court alleging that any OSI Certified open source software that is licensed under any license containing this "Mutual Termination for Patent Action" clause infringes any patent claims that are essential to use that software.

        In other words, if you write write a program and distribute it under the OSL, and I hold a software patent on that software, and sue you for patent infringement, I lose all my rights under the OSL, but nobody else does.

        • Yeah, but if you sue anyone to keep them from writing or using an OSI-licensed software with this clause in it, you lose all rights to use ANY software with this clause in it. This is a very interesting idea.
      • >>Mutual termination ensures that if anyone asserts patent royalties then everyone loses all rights to the software. This way, none of the users have the right to use the software any more (in the Copyright sense), and so since they can't be using it, they cannot be forced to pay royalties. This keeps the patent owners honest - they can't hijack OSS to further non-OSS goals.

        That's not what the license says. In addition to the point Dwonis points out (that the rights only end for the suing party rather than everyone), in what you give the patent and software in question are directly related. I read this clause as saying if you sue someone - anyone - over a patent infringement by software licensed under with this clause, you lost the ability to redistribute this software, which may have absolutely nothing to do with the dispuited patent.
    • I agree, and it's wierd and pointlessly antagonistic anyway - why not just impose a condition that by agreeing to the license, you automatically license, gratis, to any other project published under the same license (or better, an approved open source license)? Acheives the same effect but without the dubious legality of the current clauses.

      And dubious legality is an interesting issue - depending on the legal framework in each juristiction, the "mutual termination" clause may either be invalid by itself or make the entire license invalid. If the latter, there's no issue, it just means a redistributor had better be pleasant to the copyright holder, though some organizations will refuse to use the software on legal grounds. If the former, then the clause becomes a paper tiger - essentially licensees will be able to sue anyone they like while continuing to use the code, and an opportunity to open up patents would have been wasted.

      It strikes me that these licenses haven't been thought out properly. But IANAL, so I'd be delighted to be proven wrong.

      • Oops. Must use Preview. Please insert the words ", patents under the licensees control" before the first question mark.
      • Re:nasty clause (Score:3, Insightful)

        by EvanED ( 569694 )
        Two things: first, I don't think that it would have the same effect. Currently I read the clause as a kind of 'morality enforcer' that says "if you do something I don't like - even if it doesn't involve me or my software - you can't use my software" with the think you don't like being enforcing software patents against OSS software.

        Example:
        -Company A has the patent to MP3s
        -Company A uses Person B's code (licensed with this patent clause) in a program that displays images (completely unrelated to MP3s)
        -Person C writes a MP3 player and licenses it with the patent clause
        -Company A can't sue Person C without losing the right to use Person B's code, even though Person A and his/her program is completely unrelated to Person C and his/her program and the MP3 patent.

        Second point: regarding where you mention "the "mutual termination" clause may either be invalid by itself or make the entire license invalid", you might be able to write a clause in the license that says "if any part of this license is found to be unenforcable, the rest stands". I've heard someone mention that congress writes similar clauses into it's laws (regarding being declared unconstitutional) but have no clue otherwise if this is true or not.
        • Currently I read the clause as a kind of 'morality enforcer' that says "if you do something I don't like - even if it doesn't involve me or my software - you can't use my software" with the think you don't like being enforcing software patents against OSS software.

          That is what the licenses say. So if you hold the patent on MP3 and attempt to enforce it against someone who writes an MP3 player released under the license that then prevents you from using any software whatsoever licensed with that clause.

          I don't think that is justified because it implicitly assumes that all software patents are unjustified. It even prevents the defensive use of a software patent. For example if I write a spec X and submit it to a standards body I will quite likely file a bunch of patents to stop a patent troll doing the same. When the spec goes to the standards body there is a term that states that anyone can have a royalty free license to use the spec provided they do not make a claim against my company for using that particular spec under a patent that they hold. In doing so I have arguably exercised a patent right. Certainly if the patent troll takes the issue to court and we threaten or file a countersuit we have done so.

          The idea is good but the implementation is broken. This is not a case where someone can say 'well the intention is clear' since a) the intention is not clear and b) a court is likely to say it does not care what the intention was they will look at the four corners of the document and that is all they are going to care about.

          I don't think my legal dept would allow us to use code licensed under these terms

          • But if you submit the spec and you only go after people with proprietary software, you're ok. And, in order for the other company to stop you, they would have to release their code under an OSI-approved license with the patent MAD (mutally assured destruction) clause. Which shouldn't bother you anyway since you're making use of OSS somewhere.

            It's just that when you go after OSI-licensed code with the patent clause, you have to stop using ALL OSI-licensed code with that clause. Obviously if someone puts this clause into their license, they don't want you to sue any OSI-licensed software people. So, if you sue any of the developers or users you lose the right to use ANY of the OSI-licensed software with this clause. It sounds pretty fair to me.
    • this clause is just a way to try and take away people's freedom.

      Do you really want people to have the freedom to sue your sorry butt for patent infringement?
      -russ
  • Can't you just make up your own liscense for your software?
  • Not MIT/BSD-like (Score:4, Informative)

    by Glenn R-P ( 83561 ) <randeg@alum.rpi.edu> on Sunday September 29, 2002 @04:20PM (#4354936) Journal
    The AFL, unlike MIT and BSD, does not require that the copyright
    be maintained in derivative works, but only in distributions of
    the Original Work.
    • Re:Not MIT/BSD-like (Score:3, Interesting)

      by XaXXon ( 202882 )
      The AFL, unlike MIT and BSD, does not require that the copyright
      be maintained in derivative works, but only in distributions of
      the Original Work.


      Seems like the taking out of the copyright notice is in itself making a derivative work, which means you can distribute something exactly like the original minus the copyright notice. Hrmm..

      Anyone?
  • Recursive licenses!? (Score:3, Informative)

    by hey ( 83763 ) on Sunday September 29, 2002 @04:25PM (#4354975) Journal
    "The AFL is itself copyrighted (with the right granted to copy and distribute without modification). This ensures that the owner of the copyright to the license will control changes. The Apache license contains a copyright notice, but the BSD, MIT and UoI/NCSA licenses do not."

    So what license is the text of the AFL licensed under?

  • Not zesty (Score:3, Interesting)

    by slifox ( 605302 ) on Sunday September 29, 2002 @04:26PM (#4354978)
    I don't know about other peoples' views, but I don't think that restricting people's freedom of action (ie, saying you can't sue for patents, software with this license, or all your software will be illegal) is what OSI is all about. Licenses like this lead to things like Microsoft EULAs -- it's only a matter of time.
    • The Microsoft EULAs say you can't USE the software if you violate the license. Most of the Open Source licenses only cover DISTRIBUTING the software (Apple's license is one of the exceptions). I think it's okay to restrict people's actions (only as far as the actions directly relate the software itself, obviously), as a prerequisite to distributing the software.

      This is okay to me because I don't really care about redistributing software so much as being able to USE the stuff they let me download or buy.

      • You missed the point. The license says that if you sue another open source project, you can't use the product any more. That is specifically about using the software you download or buy.
        • Re:Not zesty (Score:2, Insightful)

          by Glenn R-P ( 83561 )
          The license says that if you sue another open source project, you can't use the product any more.

          It's both more powerful [sp?] and less powerful than that.

          It says:
          This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License if You file a lawsuit in any court alleging that any OSI Certified open source software that is licensed under any license containing this "Mutual Termination for Patent Action" clause infringes any patent claims that are essential to use that software.

          It's more powerful because you don't have to sue "the project" to
          activate the clause. You only have to file a lawsuit. It could be against anyone. This is important because open source developers generally don't have enough money to attract a lawsuit, but users of our software might have.

          It's less powerful because the license doesn't grant (or withhold) the right to "use" the software, other than by copying it, or performing it or displaying it publicly. The latter two may have implications on using it as a part of a web site, but IANAL.

          Glenn
        • Ahh, well the AFL seems to imply that you need the license to use the software, but the OSL (which is what I was looking at) only talks about using the software under the Patent section. But then again it doesn't specifically limit the language to patents in the last sentence, which is confusing. Now that I see it again, perhaps both licenses really do claim to take away your right to use the software after patent litigation.

          It would be best if the licenses just said up front that you can use the software under any circumstances, and that no license including this one could ever take that right away. Much like the GPL claims that use is outside its scope.

          But I guess that's just a dream until some enlightened court says that a license can never limit use. (Copyright law already explicitly says that using software is not infringement, but it's the application of contract law that we're all fuzzy about).

  • by theLOUDroom ( 556455 ) on Sunday September 29, 2002 @04:41PM (#4355044)
    This patent clause sounds really interesting...
    Let's see if I have this right:
    If I write some software package think "infringes" on a patent, and the patent owner sues me, the patent owner is never granted any rights by any of these liscenses. This sounds like a really innovative way to combat all the patent b.s. that's been going on. If enough important things were to adopt this liscense, it might just make the economic cost for filing such a patent higher than the benfit.
    Example:
    1. Linux adopts one of these new liscenses.
    2. Software package XYZ adopts one of these liscenses and violates IBM's patent on determine bra cup size via direct measurement (US Patent 5,965,809).
    3. If IBM sues XYZ, they can never use linux.
    Seems to have some interesting implications...
    Is my interpretion correct?
    • Big IANAL disclaimer, but I'd warrant that the patent clause (#9) is, while interesting, ultimately unenforceable. Despite that fact that most of us here see anyone who seeks software patent rights, or litigation on the basis of them, as misguided at best and downright evil at worst, prevailing notions of patent rights are that they are just and valuable, and that someone has the right to exercise and enforce those rights if necessary.

      Therefore, that clause may be considered discriminatory and overreaching, as it endeavors to *take away* a right that the licensee already has, independent of the license.

      The power of the GPL (and much of this new OSL as well) comes from the fact that it only *grants* rights that one wouldn't normally have under copyright (and in this case, under the 2nd clause, patent) law. This "Mutual Termination for Patent Action" clause seeks to take away an established (if perhaps ill-fitting and unfortunate) legal right from the licensee, one which has no direct bearing on the licensed software in question. I don't think that can be enforced.

      Please, though, I would love to hear what a real lawyer thinks....

    • I believe the patent clause is ill considered.

      There are times when it is legitimate for someone to sue because someone violates their patent. There is also a legitimate place in the market for closed source software.

      Frankly, I don't like the idea that if I patent something I have to let anyone who writes open source use it royalty free. I think many people will be offended by this license and I certainly won't use it on any open source software I write.

      • Frankly, I don't like the idea that if I patent something I have to let anyone who writes open source use it royalty free.

        It's not royalty-free. The royalty that you're getting is all of the open source software that's licensed under this code. If you don't think the royalty is high enough, then go ahead and sue.

        There is also a legitimate place in the market for closed source software.

        Could be, but what does this have to do with the patent clause?
        -russ
    • by Spy Hunter ( 317220 ) on Sunday September 29, 2002 @08:31PM (#4356015) Journal
      Before you think about adding this clause to the GPL, remember that this only works if the user is required to accept the license before *using* the software. This is an important subtlety of the GPL: You are not required to accept the GPL to *use* the software, only to *distribute* it. So a clause like this wouldn't have as big an effect if it was added to the GPL since it would only prevent a suing company from distributing any GPL'd software. The GPL is like this because it is not like one of those shrink-wrap licenses which limit your rights before you can use the product. The GPL only gives you rights that you would otherwise not have by default under copyright law, namely the right to distribution, if you agree to its conditions. IMHO that makes the GPL stronger in principle than ordinary shrink-wrap licenses, and probably stronger than this license too. However, IANAL.

  • OSL (Score:3, Interesting)

    by Dr. Awktagon ( 233360 ) on Sunday September 29, 2002 @04:48PM (#4355081) Homepage

    Isn't Lawrence Rosen the lawyerdude who wrote in Linux Journal?

    Heh, the license itself has a license:

    This license is Copyright (C) 2002 Lawrence E. Rosen. All rights reserved. Permission is hereby granted to copy and distribute this license without modification. This license may not be modified without the express written permission of its copyright owner.

    At first glance, this license doesn't seem bad, and doesn't seem terribly different than the GPL in spirit. It does have a more "lawyerly" tone to it (for instance the section defining "You" in the license).

    One glaring difference is the "External Deployment" clause, which is much clearer than the GPL on the subject. But personally, I'm not sure if I would want to limit the "use" of software in this way. I strongly believe that licenses should not even pretend to restrict your use of the software in any way. On the other hand, it closes off a way for people to circumvent the GPL by modifying the software and then deploying it as a service "at arm's length".

    Another difference is the patent clause: "This license will self destruct in the presence of patent litigation." I actually think this is clever. I'd like to see more analysis of this clause.

    But all in all, I don't see this license as being particularly obnoxious. What did I miss?

  • These licences all say, "the only terms under which you can copy this work is if you agree to this licence."

    But that's misleading. If you copy a copyrighted work without permission from the copyright holder (ie. without agreeing to the terms set out) then you have made a copyright violation. That's it. You have not made yourself bound to the terms, which you may not even have been aware of. You can be sued for a copyright violation, and in some cases charged with criminal copyright infringement, but I don't think you can be bound to any mystical licence terms. Possibly if they have proof you knew of the terms and deliberately ignored them, but maybe not even then.

    Think about it. What if the GPL said "You may not use this software unless you give the FSF 1 billion dollars. Re-copying of this software implies acceptance of this price."

    Everybody would agree that's ridiculous. So why do they think you can write a term like that dictating what licence you will put on your changes?

    I think if you violate a viral licence like the GPL or this one, they can sue you to stop publishing the original code or the derivative work. They can ask for damages. But they can't command you -- other than in negotiation to drop the lawsuit -- to follow other terms.
    • I think if you violate a viral licence like the GPL or this one, they can sue you to stop publishing the original code or the derivative work. They can ask for damages. But they can't command you -- other than in negotiation to drop the lawsuit -- to follow other terms.

      Actually, under the GPL, yes, they can get a court to force you to reveal your source code. The whole idea of the GPL is that only people who have accepted the license will redistribute or make modifications and redistribute.

      Even if they couldn't force the company to reveal the code, they could certainly use any means short something illegal to find out the code and publishing it. An employee who reveals the code would be doing nothing illegal, and wouldn't be able to be fired for that, as he'd be abiding by a legally binding contract. Similarly, they could reverse engineer for the code. Etc etc.
      • My point was that people think they could use the GPL to force this, but nobody has actually done it yet as far as I know.

        All copyright law says is that if you copy without permission, you have infringed a copyright, and it specifies the penalties for that.

        It doesn't say about how you get permission, or an implied contract to do things (like publish your changes under GPL). Implied contracts and whether you agree to them is a contentious issue.

        Do you really think that if software says "Use of this software implies agreement with this contract which says you will do what we tell you to do" is or should be enforceable?
        • In the case of the GPL, the penalties should be having to open up your source code. Financial penalties don't make sense, as most people GPL'ing their code aren't trying to make money off of it.

          In any case, even if the court doesn't force them to release their software code, anyone who got that code by any means would be able to publish it and the company wouldn't be able to restrict them from publishing it; of course, the person could be punished if they got the code by illegal means, like hacking into their computers. But they could (for example) get it by reverse engineering.
        • Do you really think that if software says "Use of this software implies agreement with this contract which says you will do what we tell you to do" is or should be enforceable?

          If you paid for the software, no. If you downloaded it for free, and can easily and reasonably delete it if you disagree with the terms, then yes, continued use should be deemed agreement.
          -russ
      • This is what remains untested in court. If you choose to follow the GPL, then you're following it like a contract. But if you distribute a derivative work without following the GPL, it's arguable that you're not violating the GPL, since you never accepted it in the first place. What you are doing is simple copyright violation, since you're distributing derivative works without permission from the copyright holder. Thus the only thing they can do is the usual "sue you for damages" that happens in copyright infringement, or possibly criminal copyright infringement charges depending on the circumstances. It basically becomes a standard piracy lawsuit.
        • Well, either way its good.

          Lets say that they say the GPL isn't legally binding, and don't enforce it. That means that EVERY EULA isn't legally binding. None of those obnoxious claims in MS' EULA can be legally binding. Redistribution is simply copyright infringement.

          Also, if they rule its "just copyright infringement" and that the GPL'ed project can just sue for damages, then the damages that they'd sue for (and probably get) would be to obtain the source code and have it published. No amount of money is an adequate damage, as the GPL developer wants to get more source code available, not more money.
          • I don't think that this would invalidate EULAs, because an EULA says something along the lines of "you have to accept this to use the software." The GPL explicitly says the opposite -- "You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works." Thus the GPL is explicitly not an EULA (partly because the FSF thinks EULAs shouldn't hold up in court, so wants the GPL to work without being an EULA).

            As for damages, I'm not sure the courts would go along with that. It's possible, but the courts tend to deal much better with "I'm suing you for [x] in damages," which they understand, than these sorts of non-monetary issues, which they don't.
    • Think about it. What if the GPL said "You may not use this software unless you give the FSF 1 billion dollars. Re-copying of this software implies acceptance of this price."

      It's not re-copying but redistributing. That said, though, the 1 billion dollar thing would constitute an unconscionable license (something no sane person would agree to) and so would be thrown out in court based on that. The GPL as it stands is not unconsciable, however -- a great many reasonable people have decided of their own free will to comply.

      Anyhow, if you make an illegal copy of a piece of GPLed software and you don't agree to the GPL, that's right -- you still haven't bound yourself to the license; you've merely committed copyright infringement. That is indeed how the GPL actually works, in real life, when those who violate the copyright of free software are challenged for their actions. That doesn't make the GPL "untested" or an inadequate license; it merely sets out exactly how someone failing to comply will be treated by the legal system.
      • The GPL sets out how the user of the GPL would like the infringer to be treated, but until we have a court case where a court has ordered such compliance, we don't know. I welcome citations people may have.

        Replying to this post indicates agreement with the following terms. All source code you have ever written (whether it includes this post or not) must be assigned to me.
        • The GPL sets out how the user of the GPL would like the infringer to be treated, but until we have a court case where a court has ordered such compliance, we don't know. I welcome citations people may have.

          No, the GPL does not set that out. The GPL sets out what one must do to comply; it says nothing about what the court is to do to an entity which is guilty of infringement (and indeed it can't, as such an entity may not have accepted the license at all). For some background on the enforcement process as it actually occurs, read Moglen's paper, Enforcing the GPL [gnu.org].

          Clauses 4 and 5 of the GPL make it clear that what happens upon a breach of license is simple termination of that license, and the subsequent reversion to standard copyright law. If any person whose work is infringed requests specific performance (in particular, the release of an infringer's code) as remedy from a court, that will be their own decision -- and if and when the court declines to provide said remedy, that will be a test not of the GPL itself but only of the legal feasability of that particular remedy. It will most certainly not impact the ability to enforce the license through (say) obtaining a court order to halt any release or sale of infringing code, or findings of monetary damages, or any other alternate penalty.

          Replying to this post indicates agreement with the following terms. All source code you have ever written (whether it includes this post or not) must be assigned to me.

          Needless to say, I don't agree with said terms (not that it'd matter if I failed to make this explicit -- there's no valid contract, implied or otherwise, in my response; go look up the requirements for the same).
    • But of course shrink wrap viral licences that do not allow the license owner to resell the license, transfer the license to other hardware, or allow the company that sold you the license to root your machine at will, are perfectly valid. Go figure.
    • There's a compelling article on GPL enforceability here [gnu.org], worth a read and a think.
      • And it's true as far as it goes. There is nothing to test about the GPL when it comes to being able to stop somebody from redistributing GPLd code.

        The untested thing is this. Say I write a program. I use a GPLd library (not LGPL) in it. I distribute the program, my code bound in with the library. Without source, not under the GPL.

        The owner of the library, be it FSF or otherwise, sees this. They do, without question, have the power to tell me to stop distributing that library. They can even try to get damages for the copies I distributed.

        The unanswered question is, can they force me to now release my program under the GPL, with source available and all the other provisions.

        I suspect not, but as I say, it's unanswered, and Eben doesn't answer it in his essay either.
    • Think about it. What if the GPL said "You may not use this software unless you give the FSF 1 billion dollars. Re-copying of this software implies acceptance of this price."

      Everybody would agree that's ridiculous.


      Right, and those people wouldn't be allowed to use, modify, or redistribute the software. As the GPL says, you normally don't have any right to do any of those things. So if you want to legally be able to do those things, you need to do whatever the GPL says. If the FSF demands a billion dollars, and you don't pay it, then you can't distribute GPL software.
      • Yes, as I have said, this is correct. You can't distributed GPLd software. What is untested is whether you can be compelled to now publish your own additions to the code under the GPL or not.

        Copyright law only says you can stop other people from copying your stuff, and if they do, you can sue them to stop them and to get damages. It doesn't explicitly say you can, because they copied your stuff, claim they agreed to the contract that came with it saying so.

        To make it clear with the above analogy, if the licence said you had to pay 1 billion to use it, then indeed, anybody using it without paying the billion would be infringing on the copyright.

        However, and this is a very important however, they would NOT owe you a billion dollars. The court would not command that. The court would command them to stop distributing it, and to pay you the real and/or statutory damages for the infrignement.

        The billion number would only come into play if other people had paid you a billion, so you could show a fair market value and that you really lost a billion when they used it without permission. Otherwise, it's just a number from a hat.

        Alas, damages in copyright cases are monetary, so as far as I know this would not apply to demands other than for money. There are "moral rights" claims but I doubt they could enforce the GPL.
    • These licences all say, "the only terms under which you can copy this work is if you agree to this licence."

      The Open Software License forms a contract. It's only the GPL that claims not to be a contract. But both are reciprocal licenses.
      -russ
      • The issue is whether these implicit licence contracts can be enforced, and how much. It's certainly possible to use GPLd code without even reading the licence, for example. One could easily insert a GPLd (not LGPLd) library into a program without reading the licence with only a little laziness.

        This is a hard legal question. How much can you be bound to a contract by action rather than explicit agreement? Right now there's even debate about how much you can be bound to a contract when you actually click "I agree" on the contract! For example, there is quite a bit of debate over whether various clauses in those clickwrap agreements can be enforced, such as terms that forbid reverse engineering.

        The same debate has gone on (though it's gotten more settled) on shrinkwrap licence agreements and torn-sticker contracts etc.

        But any time you try to claim somebody agreed to a contract other than by doing the usual forms of explicit agreement, it's a legal gray area. The law settles them one way some times, other ways other times.

        Copyright law is clear that copyright lets you control how people copy your work. Nothing in the statute provides the ability to say "copying of this work implies agreement with the contract bundled with it." The GPL is a new principle that needs to be tested in court to see if it can do this.

        Copyright law does not include a clause saying that you get to dictate what people do with their own changes. It does include precedents that actual derivative works can be controlled by the original copyright holder, so those might apply to things like patches. Whether they would apply to a program that uses a GPLd (not LGPLd) library is again an unanswered question. You can certainly stop people from including the library in what they distribute. But what you can command them to do with their code is not yet ruled, as far as I know, in a court of law.
  • by dh003i ( 203189 ) <dh003i@gmai l . com> on Sunday September 29, 2002 @05:09PM (#4355154) Homepage Journal
    This new Open Source License is very aggressive, much more so than the GPL; but whereas the GPL is aggressive in terms of preserving users' freedom, the OSL is aggressive in terms of protecting OSI-certified software.

    Basically, what they're doing is trying to prevent people from suing OSI-certified with this clause from patent-infringement lawsuits.

    If a company uses OSL-licensed software, and they file a lawsuite against any OSI-certified license with that clause in it, then they automatically lose their license to use the OSL-licensed software. Rather clever. Basically, it creates an incentive for a company not to file a lawsuite against an OSI-certified license with that clause in it, if the software OSL'ed software they're using is important to them.

    I propose one modification to this license, one which would allow it to protect any OSI-certified or OSS / FS license from patent-lawsuites; adjust the clause to say "if you file a patent lawsuite against software licensed under any OSI-certified, OSS, or FS (i.e., LGPL/GPL) license.

    This is certainly not a Free Software license, and I'm sure that RMS will denounce it soon, even though it protect many OSS / FS projects from patent lawsuites.

    Consider the implications of this. Lets say that by some act of God (or Satan), Stallman releases a new version of GCC under a modified GPL license with such a patent-lawsuite termination clause in it. Now lets say taht MS uses that new version of GCC as the core for its GUI-based compiler, which is "at a arms length" from the GCC program (i.e., calls it externally), and releases a product called MS GCC, for which they charge you for the MS GUI. Now lets say this was a major profit-maker for MS. And lets say they decide to sue an OSI / OSS / FS license for violating MS' patents. If they do that, they automatically lose the right to use that new GCC, so they can't sell their graphically MS GCC. In other words, it would create a pretty big motivation for them not to sue any OSI / OSS / FS software for patent-infringement.

    I like that, because it offers some protection for us OSI / OSS / FS developers from patent-infringement law-suites. We can't afford to defend such things, and we certainly can't afford to be help them sue us with our own software (imagine a company suing us using OpenOffice to write up the legal documents; that'd be like when the English massacred the Chinese using Chinese-made Chinese-invented gunpowder).

    On the other hand, this is exactly the same kind of thing which is outrageous about EULA's. MS could put the same kind of thing in any of their EULA's; i.e., if you sue MS, you're license to use MS Office terminates. Good luck suing them if you were only relying on their word processors to type up the legal documents!

    However, that said, the same thing which is outrageous in a EULA is not so outrageous in an OSS / FS license, because we need to use whatever means we have to protect ourselves.

    In short, we need to think about this kind of thing very carefully. By no means can you say that this type of clause is concerned with the user's freedom. Its concerned with protecting the developer from a lawsuite. So its a clear values choice: Ensuring Freedom (as the GPL does) versus protecting yourself and other OSI / OSS / FS developers. I'm not suggesting which one is best, but you should at least know that choosing this type of license over a freedom-ensuring license (like the GPL) necessarily reduces the amount of freedom.

    In that regard, if the idea is to protect the developer (and OSI / OSS / FS developers in general) from a lawsuite, why not just say "by accepting this license, you agree not to file lawsuites against any OSI / OSS / FS software developer?
    • by dreamword ( 197858 ) on Sunday September 29, 2002 @05:55PM (#4355360) Homepage

      In that regard, if the idea is to protect the developer (and OSI / OSS / FS developers in general) from a lawsuite, why not just say "by accepting this license, you agree not to file lawsuites against any OSI / OSS / FS software developer?



      Because then nobody would use the software, probably even including you. Imagine the following hypothetical:

      Some 31337 h4x0r roots your box. This rooting of your box costs you lots of money (say he stole your credit card number, or took down your business website, or something). It just so happens that this particulat 31337 h4x0r also contributed some code to $yourGPLdMailClient. Instead of being able to sue the little brat, you're high and dry.

      Now, if we limit the clause to "licensees may not sue any OSS developer for patent infringement", the problems you or I would have using the software go away. However, this is a Bad Thing for large-scale corporate adoption of OSS. If the company has any software patent portfolio at all, their legal department will demand that all OSS stays off all of their boxen, since otherwise they may as well forget about ever enforcing their software patents on anyone. (Say I'm sued for doing some really egregious and horrible software patent infringement. But hey -- I once contributed some code to Mozilla! I'm off the hook!)

      Rosen's license is cool, but scary. It's far too easy to come up with hypos that make patent-suit-stopping clauses bad news.

    • I don't think the new OSI license could be called aggressive.

      Like all of this kind of license, copyright law provides the restrictions on copying/distribution/'public performance', not the license. So the 'default' is that you can't do these things.

      The main 'selling point' of the GPL is that it only grants permission to copy/distribute if you don't hold back as secret anything you added yourself.

      What is new in this license is the condition that only those who are 'good citizens' wrt patents are granted permission. This is why I think it is a very good idea indeed.

      My main point though: Since the default is that you can't copy/distribute/'publicly perform' a copyrighted work, any license that grants you permissions to do these things cannot be called aggressive, since it does no more than to give you the right to do something you otherwise would not be allowed to do by copyright law.

      One final note: There seems to be an impression that filing a patent lawsuit would trigger immediate termination of your license to use the software. I don't think this is correct. It is only distribution and 'public performance' rights that would be terminated. I think that means you can continue using it in-house - much as you can modify and keep secret GPL software provided you don't try to distribute it.
  • by jukal ( 523582 ) on Sunday September 29, 2002 @05:18PM (#4355198) Journal
    As there is now total of 35 OSI compatible licenses(?), is there some site, or has someone categorized these and their main differences. Most of us know about BSD, Apache, GPL, LGPL and MIT licenses - but is there something else that one should seriously consider when trying to decide under which license to publish the work.
  • by dh003i ( 203189 ) <dh003i@gmai l . com> on Sunday September 29, 2002 @05:19PM (#4355202) Homepage Journal
    Someone else here mentioned the worry over what Frauhafener or whatever the company is that made MP3 format did. Distribute something for free under OSS license, which has patented technology in it, or allow someone else to do so, wait until it becomes popular, then charge royalties. Clearly an outrageous scam.

    That same person also mentioned that the GPL offers protections against such nonsense. I don't see how. Maybe you can enlighten me.

    But I do see a way to offer protections against things like the MP3 "wait till popular, then charge patent fees" scam.

    Include a clause in the license that says if anyone files and wins a patent lawsuite demanding royalties for anything in the program under the license, then the rights to use the program granted under that license are automatically invalidated for EVERYONE who has that program.

    Lets say this were applied to the MP3 situation, and all the MP3 players/encoders made were licensed under such a license. What would that mean?

    Well, it would mean that sure, they could sue for patent royalties. But if they did so and won, the license for anyone using such software would be terminated, so there would be no one to pay them money. This indeed makes it impractical for them to sue for patent royalties, as there would be no way they could get anything.

    Add another clause in which says that if they withdraw their lawsuite or choose not to enforce patent royalties, the license for everyone using that software is automatically re-granted.
  • It bears repeating (Score:2, Insightful)

    by Angst Badger ( 8636 )
    The only free license is no license at all. While I realize that there are sometimes good reasons to release under a particular "open source" license, there's a lot of code out there that should, could, and would be in the public domain if it were not for the screaming egos of their authors.
    • Under the Berne Convention, everything is copyrighted. There is no path from there to the public domain except through expiry of the copyright. Read this month's Linux Journal.
      -russ
  • My ideal license (Score:2, Insightful)

    by dh003i ( 203189 )
    My ideal license =

    GPL + several additional clauses:

    #1 An anti-advertising clause, as is (I believe) in the BSD-license: Neither the name of the nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

    #2 Another anti-advertising clause, preventing the author of modifications from having in-software ads, as are used in Opera.

    #3 Mutual Termination for Patent Action. This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License if You file a lawsuit in any court alleging that any OSI Certified open source software that is licensed under any license containing this "Mutual Termination for Patent Action" clause infringes any patent claims. Alternatively, if you retract the lawsuite, this termination is nullified.

    [#4 Addition to Mutual Termination for Patent Action. Additionally, you will no longer have the right to use the software for your own personal use if You file a lawsuit in any court alleging that any OSI Certified open source software that is licensed under any license containing this "Addition to Mutual Termination for Patent Action" clause infringes any patent claims. Alternatively, if you retract the lawsuite, this termination is nullified.] Not sure about this one, as it requires that people accept the license whether or not they want to distribute modified code; one of the great things about the GPL is that you don't have to accept the license.

    #5 Mutual Termination for Other Action. This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License if You file any intellectual property lawsuit (i.e., trademark, copyright, patent, etc) in any court against any OSI Certified open source software that is licensed under any license containing this "Mutual Termination for Other Action" clause. Alternatively, if you retract the lawsuite, the termination is nullified.

    #6 Global Termination for Other Action. This License shall terminate automatically for everyone in the world and they may no longer exercise any of the rights granted to them by this License (or even use the software at all) if You file any intellectual property lawsuit in any court against any OSI Certified open source software that is licensed under any license containing this "Mutual Termination for Other Action" clause and win that lawsuite. Alternatively, if you retract the lawsuite or retract the win, the termination is nullified.

    This is basically, again, designed to protect OSS / FS projects and users.
  • basically, the license terminates if you file a lawsuit in any court against any software that is
    I know it's technically possible to file criminal charges against inanimate objects. There's a legal term for this, which I don't recall at the moment. Cases like this have titles such as "The State of California vs. a briefcase containing $50,000", and this typically happens when the government wants to seize property. The advantage to the government is that inanimate objects don't have any right to a defense, so they almost always are subject to a summary judgement. It's then up to the owner to prove that their Fourth Amendment rights have been violated.

    But is it really possible to file a civil suit against an inanimate object?

  • No logo? (Score:2, Insightful)

    "The Open Source Initiative approved two new licenses."

    And if you don't use an "approved" license what happens? You don't get to use the OSI logo?
    • If you don't use an approved license, we don't let you use the certification mark, which is "OSI Certified(tm)", or the OSI Certified logo.
      -russ
  • Imagine if the GPL had such a patent clause. Apple now could not easily sue any other user of GPL'ed software for patent infringement anymore because they would immediately lose use of some software, like gcc, that they critically depend on. But they can still make money from their patents through commercial licensing to other producers of closed source software.

    I don't know whether the patent clauses in these new licenses work out correctly for that purpose, but I wouldn't dismiss the idea. Something like it may well be the best protection from silly patents we can get for open source software.

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