Common Public License (IBM)

[Rod Dixon, J.D., LL.M.]

It might be helpful when posting licenses to state what the goal is in using
this type of license rather than a license already approved (or already
submitted under a different name). If this license is identical to the IBM
Public License except for dropping a direct reference to "IBM," then I am
puzzled why they would submit this one.

Rod


----- Original Message -----
From: <gnu at root.cx>
To: <license-discuss at opensource.org>
Sent: Tuesday, January 23, 2001 2:49 PM
Subject: Common Public License (IBM)



Hi everyone,

I'm a software developer at IBM, working on a project that we expect to
release as Open Source/Free Software.  I voted for the GPL, but the higher
ups here at IBM have decided it should be released under a new
license called the "Common Public License".  This license is basically the
IBM Public License with almost all references to IBM removed (IBM is still
the 'steward' of the license).  See below for the actual license.

So, I am trying to get this license OSI and FSF approved.  I figured this
would be a good forum to get comments before I send it to the OSI and FSF.

I'm assuming that since the IBM Public License is already OSI and FSF
approved (well, really only FSF evaluated) that there shouldn't be any
issues with this license.

The license is not yet available on any official IBM website, so I've
included it at the end of this email (if it's running off the right
side of your screen, sorry about the formatting...).  For those who would
rather view an html version, I didn't want to include it in this email so
I've (temporarily!) put it on my home computer which is at:

http://www.root.cx/

or I can email an html version to anyone who wants it (or if my home
computer is down).  As a reference for comparison, you can view the IBM
Public License at:

http://oss.software.ibm.com/developerworks/opensource/license10.html

Thanks!

--
Dan Streetman
ddstreet at ieee.org
ddstreet at us.ibm.com



Common Public License - v 1.0

THE ACCOMPANYING PROGRAM IS PROVIDED UNDER THE TERMS OF THIS OPEN PUBLIC
LICENSE ("AGREEMENT").
ANY USE, REPRODUCTION OR DISTRIBUTION OF THE PROGRAM CONSTITUTES RECIPIENT'S
ACCEPTANCE OF THIS AGREEMENT.

1.  DEFINITIONS
"Contribution" means:
a) in the case of the initial Contributor, the initial code and
documentation distributed under this Agreement, and
b) in the case of each subsequent Contributor:
i) changes to the Program, and
ii) additions to the Program;
where such changes and/or additions to the Program originate from and are
distributed by that particular Contributor.  A Contribution 'originates'
from a Contributor if it was added to the Program by such Contributor itself
or anyone acting on such Contributor's behalf.  Contributions do not include
additions to the Program which:  (i) are separate modules of software
distributed in conjunction with the Program under their own license
agreement, and (ii) are not derivative works of the Program.

"Contributor" means any person or entity that distributes the Program.

"Licensed Patents " mean patent claims licensable by a Contributor which are
necessarily infringed by the use or sale of its Contribution alone or when
combined with the Program.

"Program" means the Contributions distributed in accordance with this
Agreement.

"Recipient" means anyone who receives the Program under this Agreement,
including all Contributors.

2.  GRANT OF RIGHTS
a) Subject to the terms of this Agreement, each Contributor hereby grants
Recipient a non-exclusive, worldwide, royalty-free copyright license to
reproduce, prepare derivative works of, publicly display, publicly perform,
distribute and sublicense the Contribution of such Contributor, if any, and
such derivative works, in source code and object code form.

b) Subject to the terms of this Agreement, each Contributor hereby grants
Recipient a non-exclusive, worldwide, royalty-free patent license under
Licensed Patents to make, use, sell, offer to sell, import and otherwise
transfer the Contribution of such Contributor, if any, in source code and
object code form.  This patent license shall apply to the combination of the
Contribution and the Program if, at the time the Contribution is added by
the Contributor, such addition of the Contribution causes such combination
to be covered by the Licensed Patents.  The patent license shall not apply
to any other combinations which include the Contribution.  No hardware per
se is licensed hereunder.

c) Recipient understands that although each Contributor grants the licenses
to its Contributions set forth herein, no assurances are provided by any
Contributor that the Program does not infringe the patent or other
intellectual property rights of any other entity.  Each Contributor
disclaims any liability to Recipient for claims brought by any other entity
based on infringement of intellectual property rights or otherwise.  As a
condition to exercising the rights and licenses granted hereunder, each
Recipient hereby assumes sole responsibility to secure any other
intellectual property rights needed, if any.  For example, if a third party
patent license is required to allow Recipient to distribute the Program, it
is Recipient's responsibility to acquire that license before distributing
the Program.

d) Each Contributor represents that to its knowledge it has sufficient
copyright rights in its Contribution, if any, to grant the copyright license
set forth in this Agreement.

3.  REQUIREMENTS
A Contributor may choose to distribute the Program in object code form under
its own license agreement, provided that:
a) it complies with the terms and conditions of this Agreement; and
b) its license agreement:
i) effectively disclaims on behalf of all Contributors all warranties and
conditions, express and implied, including warranties or conditions of title
and non-infringement, and implied warranties or conditions of
merchantability and fitness for a particular purpose;
ii) effectively excludes on behalf of all Contributors all liability for
damages, including direct, indirect, special, incidental and consequential
damages, such as lost profits;
iii) states that any provisions which differ from this Agreement are offered
by that Contributor alone and not by any other party; and
iv) states that source code for the Program is available from such
Contributor, and informs licensees how to obtain it in a reasonable manner
on or through a medium customarily used for software exchange.

When the Program is made available in source code form:
a) it must be made available under this Agreement; and
b) a copy of this Agreement must be included with each copy of the Program.

Contributors may not remove or alter any copyright notices contained within
the Program.

Each Contributor must identify itself as the originator of its Contribution,
if any, in a manner that reasonably allows subsequent Recipients to identify
the originator of the Contribution.

4.  COMMERCIAL DISTRIBUTION
Commercial distributors of software may accept certain responsibilities with
respect to end users, business partners and the like.  While this license is
intended to facilitate the commercial use of the Program, the Contributor
who includes the Program in a commercial product offering should do so in a
manner which does not create potential liability for other Contributors.
Therefore, if a Contributor includes the Program in a commercial product
offering, such Contributor ("Commercial Contributor") hereby agrees to
defend and indemnify every other Contributor ("Indemnified Contributor")
against any losses, damages and costs (collectively "Losses") arising from
claims, lawsuits and other legal actions brought by a third party against
the Indemnified Contributor to the extent caused by the acts or omissions of
such Commercial Contributor in connection with its distribution of the
Program in a commercial product offering.  The obligations in this section
do not apply to any claims or Losses relating to any actual or alleged
intellectual property infringement.  In order to qualify, an Indemnified
Contributor must: a) promptly notify the Commercial Contributor in writing
of such claim, and b) allow the Commercial Contributor to control, and
cooperate with the Commercial Contributor in, the defense and any related
settlement negotiations.  The Indemnified Contributor may participate in any
such claim at its own expense.

For example, a Contributor might include the Program in a commercial product
offering, Product X.  That Contributor is then a Commercial Contributor.  If
that Commercial Contributor then makes performance claims, or offers
warranties related to Product X, those performance claims and warranties are
such Commercial Contributor's responsibility alone.  Under this section, the
Commercial Contributor would have to defend claims against the other
Contributors related to those performance claims and warranties, and if a
court requires any other Contributor to pay any damages as a result, the
Commercial Contributor must pay those damages.

5.  NO WARRANTY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PROGRAM IS PROVIDED ON
AN "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER
EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR
CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. Each Recipient is solely responsible for determining the
appropriateness of using and distributing the Program and assumes all risks
associated with its exercise of rights under this Agreement, including but
not limited to the risks and costs of program errors, compliance with
applicable laws, damage to or loss of data, programs or equipment, and
unavailability or interruption of operations.

6.  DISCLAIMER OF LIABILITY
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER RECIPIENT NOR ANY
CONTRIBUTORS SHALL HAVE ANY LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION
LOST PROFITS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN
CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE)
ARISING IN ANY WAY OUT OF THE USE OR DISTRIBUTION OF THE PROGRAM OR THE
EXERCISE OF ANY RIGHTS GRANTED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.

7.  GENERAL
If any provision of this Agreement is invalid or unenforceable under
applicable law, it shall not affect the validity or enforceability of the
remainder of the terms of this Agreement, and without further action by the
parties hereto, such provision shall be reformed to the minimum extent
necessary to make such provision valid and enforceable.

If Recipient institutes patent litigation against a Contributor with respect
to a patent applicable to software (including a cross-claim or counterclaim
in a lawsuit), then any patent licenses granted by that Contributor to such
Recipient under this Agreement shall terminate as of the date such
litigation is filed.  In addition, If Recipient institutes patent litigation
against any entity (including a cross-claim or counterclaim in a lawsuit)
alleging that the Program itself (excluding combinations of the Program with
other software or hardware) infringes such Recipient's patent(s), then such
Recipient's rights granted under Section 2(b) shall terminate as of the date
such litigation is filed.

All Recipient's rights under this Agreement shall terminate if it fails to
comply with any of the material terms or conditions of this Agreement and
does not cure such failure in a reasonable period of time after becoming
aware of such noncompliance.  If all Recipient's rights under this Agreement
terminate, Recipient agrees to cease use and distribution of the Program as
soon as reasonably practicable.  However, Recipient's obligations under this
Agreement and any licenses granted by Recipient relating to the Program
shall continue and survive.

Everyone is permitted to copy and distribute copies of this Agreement, but
in order to avoid inconsistency the Agreement is copyrighted  and may only
be modified in the following manner. The Agreement Steward reserves the
right to publish new versions (including revisions) of this Agreement from
time to time. No one other than the Agreement Steward has the right to
modify this Agreement. IBM is the initial Agreement Steward.   IBM may
assign the responsibility to serve as the Agreement Steward to a suitable
separate entity.  Each new version of the Agreement will be given a
distinguishing version number.  The Program (including Contributions) may
always be distributed subject to the version of the Agreement under which it
was received. In addition, after a new version of the Agreement is
published, Contributor may elect to distribute the Program (including its
Contributions) under the new version.  Except as expressly stated in
Sections 2(a) and 2(b) above, Recipient receives no rights or licenses to
the intellectual property of any Contributor under this Agreement, whether
expressly, by implication, estoppel or otherwise.  All rights in the Program
not expressly granted under this Agreement are reserved.

This Agreement is governed by the laws of the State of New York and the
intellectual property laws of the United States of America. No party to this
Agreement will bring a legal action under this Agreement more than one year
after the cause of action arose.  Each party waives its rights to a jury
trial in any resulting litigation.