Approval of Common Public License

John Cowan jcowan at
Fri Mar 2 22:06:37 UTC 2001

Steve Gerdt wrote:

 > I'm asking for review and approval of the Common Public License. It can
 >  be found here:

Disclaimer: IANAL.  But you have lots of them.

This sentence from section 7, paragraph 2 seems over-broad:

# 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.

So the program requires the use of Contributor's patent, and Recipient
sues Contributor over any software patent whatsoever, then Recipient
can't use the program any more, even if the division of the Recipient
that has instituted suit has nothing to do with the division that is
using the Program, and even if the suit has nothing to do with the

A few globalization issues:

You probably want a paragraph like this (copied from the SISSL):

# If the Program is being acquired by or on behalf of
# the U.S. Government or by a U.S. Government prime contractor or
# subcontractor (at any tier), then the Government's rights in the
# Program and accompanying documentation shall be only as set forth in
# this license; this is in accordance with 48 C.F.R. 227.7201 through
# 227.7202-4 (for Department of Defense (DoD) acquisitions) and with 48
# C.F.R. 2.101 and 12.212 (for non-DoD acquisitions).

The New York conflict-of-laws provisions should be
suppressed, to avoid accidentally importing foreign law.  However,
someone applying this license to their own program should be able to
change the license to impose their own law, something like this:

# This Agreement is governed by the laws of the State of New York,
# excluding its conflict-of-laws provisions, and by
# 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.  The original
# Contributor may alter this paragraph in the copy of this License
# issued with the Program, in order to substitute a more appropriate
# choice of law.

There is / one art             || John Cowan <jcowan at>
no more / no less              ||
to do / all things             ||
with art- / lessness           \\ -- Piet Hein

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