ATT SOURCE CODE AGREEMENT Version 1.2C

[Bruce Perens]

On Fri, Sep 10, 1999 at 12:14:45AM -0400, John Cowan wrote:
> Unfree-1: The ASCA is a "shrink wrap" license

I think the words "shrink wrap" and "tear-open" refer to the fact that the
license is entered into by performing some sort of action, such as opening
a package, installing the program on a computer, or making _use_ of the
source code to build a program. This rather than formaly entering into a
contract via the signature of two parties who have achieved a meeting of
minds. All Open Source licenses that I know of are "shrink wrap" or
"tear-open" licenses. That appears to be essential for OSD compliance.

> that is, it purports to restrict the *use* of code, rather than restricting
> only copyright rights such as distribution and modification.

Can you restate this in terms of the "fields of endeavor" clause of the OSD,
where the field of endeavor is not in itself a violation of copyright
law? Please note that copyright law allows restriction of public performance.

> In particular, you may not reformat the Capsule from "tarball" format
> to another generic or platform-specific format.

I think this is OK with ATT after the last round of changes to the license,
which made it clear that a tear-open license could be used on the source code.
One of them commented to me today that they were no longer restricted to the
odd capsule format (which probably presents a license before you extract it,
and that's why it was necessary). I'll bring this up with them.

> Likewise, you may not print out the source code and distribute the printed
> version to a colleague for his or her inspection.
>
> 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.
 
The OSD does not require that fair use as defined in copyright law be
preserved. I have some question regarding whether other Open Source licenses
preserve it, and whether such preservation is always in our interest, as it
impinges on our ability to provide "viral" protection as in the GPL in some
cases.

Their restriction on how others use their web site seems to be outside of the
scope of the OSD. I remain unconvinced that presenting someone else's web site
in a frame is fair use, anyway, and do not see that you would have this right
had you not entered into this license.

> 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.
 
Can you suggest fair remedies?

> 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.
 
It sounds fair for me to ask them if this is their intent.

> Un-GPL-1: The ASCA is incompatible with the GPL,

Of course GPL compatibility, much as _I_ would like it, is not a stated goal
of the OSD. In fact, the OSD would not have been necessary were
GPL-compatibility a goal, we could have just said "it's free software only
if it's compatible with the GPL". In this case, GPL compatibility wasn't
ATT's goal, either. Thus, while I'd _like_ these changes, I don't see much
chance for their acceptance and can't sincerely state that they are
essential.

> These problems can be cured by:
> 
> o	removing the shrink-wrap nature of the code
> 	including the shrink-wrap license virus

Removing the viral nature of a license in order to achieve GPL compatibility.
Surely you see the irony here.

	Thanks

	Bruce