IPL as a burden

[Ben Tilly]

Manfred Schmid <mschmid at intradat.com> wrote:
>
>clause O:
>
>"Activities other than copying, distribution and modification are not
>covered by this License; they are outside its scope."
>
> > The GPL does cover running the software.  In clause 0 I
> > see, "The act of running the Program is not restricted..."
> >
>
>As a lawyer I would argue that it should read "...by this license...".
>Clause 2 c) states "... you MUST cause it [...] to print or display
>announcement including an appropriate copyright .... ". Looks to me like
>a (perfectly rational) restriction.

My understanding of the position of the FSF on this matter
is that you own your copy of the software.  Unlike a
typical shrinkwrape license where you have licensed the
use of it from the owner, that copy is really yours.
Given that you own it, running it is covered by fair use.
Therefore the act of running code that you own is not
restricted because it is not restricted in copyright law
and you have not agreed to anything which could limit that
right.

The second quote from part 2c is a restriction on what
modifications may be made.  When you modify the code you
must cause it to display your copyright information if it
normally displays any others.  This is not a restriction on
what you may do while running, nor is it even a requirement
to display copyright information.  It has nothing to do
section 7 of the OSD.

Now you are going to claim that this is a limitation on
item 3 of the OSD.  And you are absolutely correct.  (In
fact I noted in my first email that it was not clear that
you conflicted with section 3, but I thought that a fault
of the OSD, not a validation of what you seek to do in
your license.) It is a point in the OSD that IMHO could
use some clarification.

But the clarification that is likely to happen will not
be to your liking.

>If OSD #7 is not part of GPL, there might be a playground for lawfirms.
>All that is legal stuff and we are not judges, so lets leave the topic
>out. I do not want to challenge GPL.
>
The interpretation that I have seen Richard Stallman
state does indeed cover OSD #7.  As you say, challenges
to that are a matter for judges, not us.
>
> > The OSD is a commonly accepted definition of exactly
> > that.  Software which is delivered under an OSD
> > compatible license comes with a guarantee that there is
> > no legal barrier to having a free market for upgrades,
> > bug-fixes, training and support.  Whether or not there
> > will actually be a viable market in upgrades, bug-fixes,
> > training and support will depend on applicable free
> > market forces.  But no vendor has the ability to wave
> > around a legal document and run potential competition out
> > of town.
> >
> > *ANY* licensing move that you make to guarantee yourself
> > the ability to restrict such competition means that the
> > customer no longer can count on that freedom.  Therefore
> > any such move should make it impossible to certify you
> > as having a license that offers such protection.
> >
>
>We are not restricting competition. Opening the source will increase
>competition for us and it is a good and solid principle at the basis of
>capitalism :)

When you have two competitors selling a product, and all
sales to either company result in license fees going to
one of those competitors, they are not on an even playing
field.  The dramatic resulting effect may be seen from
some of the OEM policies that Microsoft managed to get
away with.

>Any company may provide upgrades, bug-fixes, training, support or
>wahtever they feel reasonable in the context of IPLed software. There is
>no such restriction in IPL. If you find one, we will take it out.

The original version required companies provided support
and services to pay you non-zero license fees (while the
end customers receieved free licenses).  Given that you
choose your competitor's cost here, no sane competitor
would go head to head against you in that market.

>If you would choose for example to develop upgrades for IPLed software
>and market it under whatever business model, you are free to do so. All
>that IPL requires is, that the company running the software sticks to
>IPL and has eventually had a look at our price list. You are able to
>introduce your upgrades at the heart of any IPLed software since you
>have the source and you are legally entitled to do it.

And what was the licence requirement that you had?

>If you are able to provide better upgrades etc. than we are, we have
>done a poor job. However it will help the guy running it and thats what
>competition is for.

Again, your license is founded upon the principle of finding
ways to make the source-code available but leaving you with
sufficient control to ensure that money will be paid to you.

That is a huge head start and realistically is a very high
barrier to competition.

>Still my understanding is, that open source does not mean free beer. Do
>you agree on this point?
>
We not only agree, but I have pointed out specific
scenarios where open source would cost large amounts.
(I mentioned customized development.)

My understanding and claim is that open source is (and
http://www.opensource.org/ argues for the benefits of)
software which is delivered under a license that offers
guarantees that competitors may get the source and set
up shop selling the open-source version and things
related to it (support, services, etc) in a completely
level legal playing field.

This guarantee of the viability of potential competition
(though not necessarily of its existence) has real value
to consumers.  Any requirements of additional licenses,
various payments, restrictions on what competitors may
do with the opened code, etc work to undermine this
fundamental type of protection, and the result will not
be labelled "Open Source".

--------------

Note to Manfred: Do you understand my claim?  I am not
asking whether you agree, I have reason to believe that
you would like Open Source to mean something different.
I am asking you whether my claim is clear.

Note to everyone else: Is my claim an accurate description
of your understanding?

--------------

Assuming that Manfred understands what I meant when I
wrote that, and my description matches what others
believe open source to be, the conclusion is that as
soon as your license tries to find ways to guarantee
that some type of revenue generated from that software
goes to you, the result will not be labelled Open
Source.  And it will not be so labelled for reasons
that have nothing to do with people in the Open Source
world not wanting to think about money.  It will not be
labelled Open Source because it does not give the
consumer the protections that make the label valuable to
wise consumers.

Cheers,
Ben
_________________________________________________________________
Get your FREE download of MSN Explorer at http://explorer.msn.com