Wording in Open Source Definition

[Richard Boulton]

This will appear to be an extremely pedantic email, but it arises from a
discussion with a corporate lawyer who I believe was genuinely confused by
some of the wording in the Open Source Definition.

The discussion focussed around the intent of clause 1, Free Redistribution,
in particular "The license may not require a royalty or other fee for such
sale."

The lawyer believed that this should be read equivalently to "The license
may not require a royalty, but it could do" whereas I believe that this
should be read equivalently to "The license must not require a royalty..."
He pointed to the use of the word "must" elsewhere in the document as
evidence that the distinction between may and must was understood by the
writers of the document.  Also, looking at the Rationale for clause 1, he
claimed that the word "free" should be considered to be the "freedom" sense
of free, rather than "free-of-cost".

We were unable to come to a satisfactory agreement, so I am asking this
list:  "Is it permissible in any circumstances for an Open Source license
to require a royalty or other fee for sale of the software?"

If the answer is no, I humbly suggest that the "may not" be changed to
"must not" where it appears in clause 1, and that "free" be changed to
"free-of-cost" in the rationale for clause 1, to avoid others falling into
this same argument.

I understand that the Open Source Definition is not meant to be a legally
secure document, but rather a guide to what an Open Source license should
be, but it would be helpful to me if this point could be cleared up.

Yours,

-- 
Richard Boulton