IPL as a burden

Seth David Schoen schoen at loyalty.org
Wed Jan 17 12:30:59 UTC 2001

Manfred Schmid writes:

> To me, a lot of the discussion gets down to the "free beer" question.
> May I ask the Board for an official statement: Is the charging of
> license fees (or execution fees) definitely a no-go to qualify it as
> OSI-compliant Open Source?

My guess is yes because of the opinion that U.S. copyright law defaults to
allowing people who receive legal copies of programs to run them.

If that's true, then in the U.S. people who receive copies of your software
legally are allowed to run them without any further permission from you.
Some software companies have definitely tried to get around this prospect
by making users _agree_ to some other terms.  (EULAs, clickwrap, shrinkwrap,
licensing contracts, etc.)  There is a whole lot of argument about this:
whether it is possible, whether specific approaches are effective.

But the OSD does not seem to allow you to make your users agree to any
terms in subsequent redistribution.

	The rights attached to the program must apply to all to whom the
	program is distributed without the need for execution of an additional
	license by those parties.

So if copyright law actually does automatically give recipients the right to
run the program (which I admit is a subject of controversy in itself as far
as the details go; but see 17 USC 117(a), "Limitations on exclusive rights:
Computer programs"), it's hard to see that a license not "execut[ed]" by the
end user can actually restrict or limit that under the Copyright Act.

A separate question is, what if the license is governed by the laws of a
non-U.S. jurisdiction and takes advantage of features in copyright law
there that are different from, for instance, 17 USC 117?  This question
has never been addressed in this form, as far as I know.

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

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