Licensing and public performance

[Seth David Schoen]

Andrew J Bromage writes:

> > The OSD has no particular comment on this, although many people have
> > felt that it is inappropriate to use a license to violate the privacy
> > of the users of some software package.
> 
> There may be media-creation software "out there" whose licences require
> that works created using the software include a credit.  Could anyone
> who uses such software please take a look at their licences to see if
> they do?
> 
> Mind you, that might be based on shrinkwrap agreements rather than
> appealing to "public performance".
> 
> As for the OSD's comment, I was worried that it might be discriminatory
> against fields of endeavour: those producing media for distribution
> with this software have to redistribute the software, but others do not.
> That looks too much like "commercial users must redistribute the source
> but non-commercial users don't have to".

Interestingly, the GNU GPL sort of does that:

	c) Accompany it with the information you received as to the offer
	to distribute corresponding source code.  (This alternative is
	allowed only for noncommercial distribution and only if you
	received the program in object code or executable form with such
	an offer, in accord with Subsection b above.)

More specifically, noncommercial distribution is exempted, some of the
time, from source code distribution responsibilities under the GPL (if
an upstream distributor has made the source code distribution offer under
3(b) of the GPL, instead of distributing source code under 3(a) as would
be nice).

Why does nobody feel that this is an OSD violation?  Is it because it's
traditional, or just because it feels reasonable (and because it's an
exception for some people, rather than an additional burden)?

Does it feel reasonable _because_ it's traditional?  How many people
ever actually consciously exercise a right under the GPL's 3(c)?

It's still not clear to me -- and has never been really clear -- whether
the OSD prohibitions on discrimination only apply to discrimination
which could make software non-free for some class of users, or whether
they apply to _all_ discrimination, because discrimination is perceived
as wrong.

The truth in practice and public opinion and intuition has seemed to be
somewhere in between.

I was involved in OSI certification of at least one license which said
that commercial users agreed to indemnify contributors against
liability arising out of the commercial users' use of the software.
However, noncommercial users were not required to indemnify anyone (if
I remember correctly).  This seemed fair, intuitively, but it is
certainly discriminatory, and certainly someone could object to it.

I often have the feeling that the OSD ought to be revised periodically
by on-going discussions similar to the discussions which resulted in
its creation.  There are still a few situations which present real
ambiguities for interpreting the OSD.

-- 
Seth David Schoen <schoen at loyalty.org>  | And do not say, I will study when I
Temp.  http://www.loyalty.org/~schoen/  | have leisure; for perhaps you will
down:  http://www.loyalty.org/   (CAF)  | not have leisure.  -- Pirke Avot 2:5