ATT SOURCE CODE AGREEMENT Version 1.2C

[John Cowan]

>                             SOURCE CODE AGREEMENT
> 
>                                 Version 1.2C

I regret to say that I believe this license (the "ASCA") is 1) not
Open Source (unfree), 2) unfair to licensees, and 3) incompatible with the GPL.
The last two claims do not make the license not Open Source (the NPL is
unfair and not GPL-compatible, but it is Open Source), but I present the
arguments here anyway because I think they are significant points.
I have given each argument a short label for easy reference.

Unfree-1: The ASCA is a "shrink wrap" license: that is, it purports
to restrict the *use* of code, rather than restricting only copyright
rights such as distribution and modification.  This means that the only
things you can do with the licensed code are those enumerated in
Section 3.1.a.

In particular, you may not reformat the Capsule from "tarball" format
to another generic or platform-specific format.  Likewise, you may not
print out the source code and distribute the printed version to a
colleague for his or her inspection.  You can only distribute the
original Capsule bit for bit, possibly aggregated with other bits.

Technically, you are not even allowed to display the Source Code on a
monitor screen where someone else might see it, as this breaches
the right of "public performance"!

Unfree-2: Because the ASCA restricts use, the user may not take
advantage of the statutory rights of someone who owns a copy of a
copyrighted work.

For example, under the "fair use"/"fair dealing"
doctrines, you may extract a small part of a copyrighted work and
use it in your own work, even without a license to do so.  The typical
example is a short quotation from a copyrighted text.  By the
same argument, you can use a sufficiently short quotation from GPL-licensed
code in your own code without imposing the GPL on the combined work.

Not so with ASCA-licensed code: you may not take a single line from
it without imposing the ASCA or a closely related use license on your
users.

Unfair-1: The license permits you to make links from your website
to the website of the licensed code, but specifically disallows
a) any use that gives a false impression of endorsement by AT&T
(which is reasonable) and b) incorporating the licensed code's
website as a frame of your own (regardless of intent to deceive).

This prevents you, for example, from making a side-by-side presentation
of the code website with your comments on the code, whereas you may
do so if you force the user to open the code website in a separate
window.  This unfairly discriminates against a reasonable practice,
as if *every* use of frames was inherently deceptive.

Unfair-2: If you obtain a Derived Work from a third party incorporating
the licensed code, and the third party breaches the license either
as explained in Unfree-1 or otherwise, then your license to use the
Derived Work is void, even if you neither knew nor should have known
of the third party's breach, and even if the breach had nothing
to do with the product you are using.  This is a consequence of Section 8.5,
and is manifestly unfair.

Unfair-3: The statement in Section 8.6 that the ASCA is to be
interpreted "without any strict construction in favor of or against
either AT&T or you" looks even-handed, but it is not.  The ASCA is
what is called a "contract of adhesion", one which is drafted solely
by one party to it who then imposes take-it-or-leave-it terms on
the other party.

The ordinary rule of law requires that such contracts are construed
strictly against the party who drafted them: they may not say "We
didn't mean what we said".  This clause attempts to unfairly compel
licensees to sacrifice this right.

Un-GPL-1: The ASCA is incompatible with the GPL, because Section 4.1
compels the creator of a Derived Work to impose a similar use license,
shrink-wrap or otherwise, on all users of the Derived Work. This
constitutes a license more restrictive than the GPL, and therefore
no work can contain both GPL-licensed and ASCA-licensed code.
(I can't comment on the exact nature of the license you are required to
impose, because Appendix A of the ASCA was not posted.)

These problems can be cured by:

o	removing the shrink-wrap nature of the code
	including the shrink-wrap license virus

o	permitting every use of the code, not only enumerated uses

o	permitting distribution of the "unmodified Source Code" rather
	than the "Capsule" only, in the manner of clause 2 of the QPL

o	eliminating the discrimination against frames in Section 3.2

o	guaranteeing the rights of innocent third parties, as clause
	4 of the GPL does

o	eliminating the anti-strict-construction language in Section 8.5

Without at least some of these changes, this license should not be
certified as Open Source. I hope that AT&T will be willing to make
all of them.

-- 
John Cowan                                   cowan at ccil.org
       I am a member of a civilization. --David Brin