NASM License

[William Abernathy]

This is my first License-discuss post. Standard apologies preemptively
applied.

I am not an attorney, and am not speaking in any such capacity. Free
advice is worth what you pay for it. You should talk to a real attorney
about everything that might wind you up in court, especially this
license. I am not acting as an agent of my employer. DISCLAIM! DISCLAIM!
OK!

A general observation about licenses and contracts: they should not be
based on what well-intentioned folks will think of them, or how a
right-thinking person should act. Rather, they should be crafted based
on the assumption that unscrupulous persons will exploit any weakness in
wording for their own advantage. I'm approaching this license with that
in mind.

> NASM LICENCE AGREEMENT
> ======================

Is this a British Commonwealth Licence or an American License?
Standardize (or standardise) your spelling to suit your intended
jurisdiction. (By the way, if you're going Anglican, "sublicence" is
spelled "sublicense" in clause VII.)

> By "the Software" this licence refers to the complete contents of
> the NASM archive, excluding this licence document itself, and
> excluding the contents of the `test' directory. The Netwide
> Disassembler, NDISASM, is specifically included under this licence.

Is the NASM archive ever likely to be modified, or is it an artifact
that is set in stone? If it is to be modified, you should clearly
designate which archive it is, where I can always find it, and how you
will nominate the original and most recent iteration. Can I make a bogus
archive based on your archive and call it "The NASM Archive" copyright
the thing and confuse the whole works? You should have a definition for
this, and a clause to the effect that "the NASM archive is whatever we
say it is, within the following rules..."

Same goes for the authors. Put a definition of who the authors are right
up front, and refer to them ever after as the capital-A "Authors." By
that do you mean any one of the authors? Or all of the authors? Imagine
that your best hacker buddy who you've worked on this project with all
last year turns into a devil-worshipping jerk, or gets dropped on his
head and signs away the rights from his hospital bed. By securing that
one author's permission (or indeed any subsequent author's permission),
can my enormous software company take your product private? If one
author cannot give away the farm, then can a majority do so? Or is there
a "joint and several" construction, meaning 100% unanimity of authors
(even down to late project contributors) have to sign off on decisions,
and one obstreperous coder can hang up the works? It's worth thinking
about. 

> II. The Software, or parts thereof, may be incorporated into other
> freely redistributable software (by which we mean software that may
> be obtained free of charge) without requiring permission from the
> authors, as long as due credit is given to the authors of the
> Software in the resulting work, as long as the authors are informed
> of this action if possible, and as long as those parts of the
> Software that are used remain under this licence.

If I distribute shareware or crippleware incorporating your software,
without charging for the transfer of the software, I may be within your
parenthetical definition of "freely redistributable." A user can obtain
it free of charge, but may not be able to *use* it free of charge. This
is bait for subsequent license traps.

"If possible" is a bit weak. Let's say I was out to leave you in the
dark about my intentions. And let's say we wound up in court because I
didn't let you know my redistribution plans. What does "if possible"
mean? There is a legal term of art in copyright permissions called "fair
search", which essentially means that I made a good faith effort to find
you. "Fair search" means I looked in a specifically set manner and
documented each of X numbers of search steps in order to find you and
get your permission (or in this case, clue you in). Under the present
wording, I might try going into court and say that I tried to find you
but it wasn't "possible" because I didn't have the staff or the time to
track you down. 

Hey, don't laugh. This stuff happens. 

Also, you might want to ask yourself why you're trying to have people
inform you of their plans--if there is to be any recourse for you, it
had better be in a nice tight license, not in what you might have to say
to them when/if they inform you of their plans.

> III. Modified forms of the Software may be created and distributed
> as long as the authors are informed of this action if possible, as
> long as the resulting work remains under this licence, as long as
> the modified form of the Software is distributed with documentation
> which still gives credit to the original authors of the Software,
> and as long as the modified form of the Software is distributed with
> a clear statement that it is not the original form of the Software
> in the form that it was distributed by the authors.

Strike "it" from the last line.

> IV. The Software, or parts thereof, may be incorporated into other
> software which is not freely redistributable (i.e. software for
> which a fee is charged), as long as permission is granted from the
> authors of the Software. The authors reserve the right to grant this
> permission only for a fee, which may at our option take the form of
> royalty payments. The authors also reserve the right to refuse to
> grant permission if they deem it necessary. For further information
> about who exactly the authors are, see clause XI below.

Again, the definition of "not freely redistributable" is mushy. If I
don't charge for software, but modify it slightly and "freely
distribute" it, lockedit into my proprietary hardware platform, and
make up the difference by charging up for the machine or for a license
to work on my machine, then you're potentially cut out of the profit
loop. I don't know what your software does, so this may not be so big a
deal, but it's another thing to think about.

The authors, as noted above, should be clearly defined, not someone
alluded to in a latter clause who you might be able to track down by
getting in touch with someone's email address.

Also, this section might be worded a little more tightly. Perhaps: 

" IV. The Software, or any part thereof, may be incorporated into other
software which is not freely redistributable (i.e. software for
which a fee is charged), as long as the Authors grant their permission. 
The Authors reserve the right to grant this permission for a fee, which 
may at the Authors' option take the form of royalty payments. The 
authors reserve the right to deny permission."

> V. The Software may be incorporated, in its original archive form,
> into software collections or archives which are not freely
> redistributable, as long as it is clearly stated that the Software
> itself remains freely redistributable and remains under this licence
> and no other. Such collections are deemed not to fall under article
> IV of this licence.

> VI. Object files or programs generated by the Software as output do
> not fall under this licence at all, and may be placed under any
> licence the author wishes. The authors explicitly lay no claim to,
> and assert no rights over, any programs written by other people and
> assembled into object form by the Software.

...and may be placed under any license that *which* author wishes? 

> VII. You may not copy, modify or distribute the Software except
> under the terms given in this licence document. You may not
> sublicense the Software or in any way place it under any other
> licence than this one. Since you have not signed this licence, you
> are not of course required to accept it; however, no other licence
> applies to the Software, and nothing else grants you any permission
> to copy, modify, sublicense or distribute the Software in any way.
> These actions are therefore prohibited if you do not accept this
> licence.

There goes your GPL dual-license.

> VIII. There is no warranty for the Software, to the extent permitted
> by applicable law. The authors provide the Software "as is" without
> warranty of any kind, either expressed or implied, including but not
> limited to the implied warranties of merchantability and fitness for
> a particular purpose. The entire risk as to the quality and
> performance of the Software is with you. Should the Software prove
> defective, you assume the cost of all necessary servicing, repair or
> correction.

> IX. In no event, unless required by applicable law or agreed to in
> writing, will any of the authors be liable to you for damages,
> including any general, special, incidental or consequential damages,
> arising out of the use or the inability to use the Software,
> including but not limited to loss of data or data being rendered
> inaccurate or a failure of the Software to operate with any other
> programs, even if you have been advised of the possibility of such
> damages.

> X. In addition to what this Licence otherwise provides, the Software
> may be distributed in such a way as to be compliant with the GNU
> General Public Licence, as published by the Free Software Foundation,
> Cambridge, MA, USA; version 2, or, at your option, any later version;
> incorporated herein by reference.  You must include a copy of this
> Licence with such distribution.  Furthermore, patches sent to the
> authors for the purpose of inclusion in the official release version
> are considered cleared for release under the full terms of this
> Licence.

> XI. The authors of NASM are the original authors (Simon Tatham and
> Julian Hall) and all those who the original authors feel have
> contributed significantly to the overall project.  If you wish to
> contact the authors, Julian Hall (jules at earthcorp.com) should be your
> first port of call.

The authors here are circularly defined: The authors are Simon and
Julian and whoever they say are authors. Once S&J say someone is an
author, is he irrevocably an author? Does he get S&J's author-defining
power? Or is he a different kind of author who has had "special"
authorship conferred upon him at the temporary pleasure of the "real"
authors? In which case, they're not really authors at all, but agents of
the author, or some other sort of non-author author. You should think
about what you want to say here, and say it clearly.

> XII. Should any part of this agreement be deemed unenforcable, it is
> intended that the remainder of the agreement be held in force.

You might also put a jurisdictional cause in there: from which court
district is this license granted, whose laws give it force, and in which
court district will disputes around it be resolved? Without a
jurisdictional clause, my multinational software empire will gladly shop
around for a friendly court, and we'll gladly see you in the Supreme
Court of Burkina Faso if your license lets me get away with it. My
advice: steer clear of the "meat" dishes at the Ouagoudougou Hilton and
get this one nailed down. 

It looks to me like you want to have it both ways, and I suspect you'll
get not much good from this document. The best-known "have it both ways"
license is TrollTech's QT Public license. I would recommend (in a
non-attorney not-practicing-law sort of way) that you give that one a
look-through before you try to create a new one, and that you secure the
advice of a real lawyer before you go any further with this license.

Good luck! 

--William Abernathy
--Not giving expert legal advice, and not speaking for Olliance, Inc.