gwachob at findlaw.com
Tue Apr 27 17:47:40 UTC 1999
Seth David Schoen wrote:
> Brian Ristuccia writes:
> > Problems:
> > [...]
> > * US Legislation Imperialism (7)
> That paragraph is a lot worse than the Export Law Assurances paragraph in
> the original APSL.
> 7. Compliance with Laws; Non-Infringement. Recipient shall comply with
> all applicable laws and regulations in connection with use and
> distribution of the Subject Software, including but not limited to,
> all export and import control laws and regulations of the U.S.
> government and other countries. [...]
> It requires compliance with _all_ laws of any jurisdiction, not just export
> laws; depending on the legal definition of "in connection with", it might
> discriminate against use of the software for an illegal purpose. (So, for
> example, it could then become a license violation to use this software to
> help criticize certain governments.)
What criterion of the Open Source Definition does prohibiting use of the source
code for illegal uses violate? The only possibility I can see is #6 (No
Discrimination Against Field of Endeavor), but that seems to be a stretch for me.
Was the intent of #6 of the OSD to prevent licenses from restricting use to legal
purposes? Is "all legal activities" a "field of endeavor"? (I don't think so,
using "plain meaning"). OSD6 needs more fleshing out on the web site (or has this
been discussed before?) Is it the intent of the OSI that inclusion of a term
which requires legal compliance in distribution and operation of the software
renders a license non open-source? That would seem to be a large obstacle for a
large commercial entity wishing to open source their software.
These large companies have presences in many nations whose laws are very
different from the U.S. and don't want to be punished by these foreign
governments for releasing software which is considered "illegal". Terms like the
present one explicitly shift the risk of "illegality" of the underlying software
onto the licensee (the end user). If China comes along and says that SGI can't
give out that software in China because its illegal, then all SGI has to do is
withdraw the license for those users in China and demand that end users stop
using it. SGI simply says "you violated a term of the license, license
If this term wasn't in the license, then SGI might have to spend more money
litigating (they might have to anyway, mind you) the issue -- they'd probably win
anyway (who knows), but having the explicit term lays out the risk allocation so
that the end user understands better what is going to happen.
Now, this argument might be counter to the principles of the Open Source
Definition, but we must remember that companies like SGI are doing this not for
the public good (they could get sued for that), but because of the business case
it makes for them. I would argue that a term like this reduces risks and makes
that business case better and thus is beneficial for opensource (balancing, of
course, against the increased restrictions on use of software it imposes).
I'm not saying the wording is perfect, just that the intent of the term is
> The clause which requires people to follow "all export and import control
> laws" is ambiguous, and could be construed as a bizarre inclusion by
> reference of _all_ trade laws in the entire world.
Actually, I think its straightforward and thats exactly what it intends to do.
Its another case of SGI covering its rear end. These are fairly standard
traditional license terms.
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