Subscription/Service Fees - OSD Intent

[Eric Jacobs]

Ian Lance Taylor <ian at airs.com>:

> > ) It may certainly be possible to have a [requirement that derivative 
> > works
> > ) be licensed under the GPL] for Open Source software. I am not 
> > denying
> > ) that. However, until such a time as the [requirement that derivative
> > ) works be licensed under the GPL] is [met], the software cannot be
> > ) considered Open Source. If a [requirement that derivative works be
> > ) licensed under the GPL] were allowed in an Open Source license, then
> > ) if Andy has [met the requirement by distributing his derivative work
> > ) under the GPL], then gives the software to Bob, Bob does not have to
> > ) [meet the requirement to distribute derivative works under the GPL],
> > ) since all the rights attached to the Andy's copy of the software
> > ) transfer to Bob (#7).
> > 
> > Plainly, this is not what #7 means.
> > 
> Argument by analogy is always tricky.  In this case, I don't think
> your analogy is correct.
> 
> Your analogy presumes a scenario in which Andy has a legally obtained 
> copy of the source but is not under the requirement that derivative 
> works be licensed under the GPL.  That is implied by your statement that 
> Bob has all the rights which Andy has but does not have the
> requirement of distributing under the GPL.

There is no such implication. A "not" has slipped in there! I am 
considering the case where Andy is licensed under some condition
(whether it is a requirement that any derivative works be distributed
under the GPL, or perhaps a requirement to pay a fee.)

My statement that Bob has all the rights which Andy has but does not
have the requirement of distributing under the GPL is derived from
David Johnson's argument about OSD #7 -- namely, that a recipient of
Open Source software gains all of the rights that the distributor
had with regard to the software, _without_ having to meet any of the
requirements that the distributor did.

> Here is my interpretation of David Johnson's point.  If Andy has a copy 
> of a program under an open source license which requires paying a 
> license fee, and Andy pays that license fee, and Andy distributes the 
> program to Bob, then by OSD #7 Bob has all the rights that Andy has. If 
> Andy has the right to run the program, then Bob also has the right
> to run the program.

That's how I understood it also. But no Open Source licenses (that I can
think of) actually work that way.

If Andy gives Bob a copy of the software, that does not mean that Bob
should automatically be granted Andy's rights, _without_ meeting the
conditions under which Andy obtained them.

> If we apply your analogy to this, you are quite correct that if Andy has 
> a copy of a program under an open source license which does not require 
> redistribution under the GPL, and Andy distributes the program to Bob, 
> then Bob is not require to redistribute under the GPL.  But
> that argument proves nothing interesting.

That is not my analogy. I will be more explicit.

Scenario 1
  - Andy obtains a copy of a software program.
  - Andy reads the license. The license states, in part, that it will
    grant him rights to copy, modify, distribute and prepare derivative
    works, under certain conditions. The conditions include a requirement
    to pay a fee.
  - Andy accepts the license. Andy is now granted those rights. Andy
    has also now incurred an obligation to pay the fee.
  - Andy gives a copy of the program to Bob. (Legally, as Andy has
    been granted that right.)
  - Bob reads the license. The license states, in part, that if he has
    received his copy from somebody who was granted rights under this
    license, Bob is also granted those rights.
  - Bob accepts (or doesn't accept) the license. In case he accepts, he
    does not have to pay a fee to copy, modify, distribute, or prepare
    derivative works.

Scenario 2
  - Andy obtains a copy of a software program.
  - Andy reads the license. The license states, in part, that it will
    grant him rights to copy, modify, distribute and prepare derivative
    works, under certain conditions. The conditions include a requirement
    that any derivative works of the software that Andy creates must be
    licensed under the GPL.
  - Andy accepts the license. Andy is now granted those rights. Andy
    has also now incurred an obligation that any derivative work of the
    software he should create must be licensed under the GPL.
  - Andy gives a copy of the program to Bob. (Legally, as Andy has
    been granted that right.)
  - Bob reads the license. The license states, in part, that if he has
    received his copy from somebody who was granted rights under this
    license, Bob is also granted those rights.
[Note: This license is not the GNU GPL, obviously.]
  - Bob accepts (or doesn't accept) the license. In case he accepts, he
    may prepare derivative works and license them under any license he
    chooses.


> A way to work around this is to provide a license which is an open 
> source license but which says that every time you run the program you 
> must pay the developer a dollar.  This gets back to the fact we've 
> discussed before, which is that the OSD does not clearly state that the 
> recipient is permitted to run the program. 

Whether running a program implicitly involves copying that is an
exclusive right of the copyright holder is, of course, an issue that is
debatable, and it is not what I am primarily interested in here. To
save confusion, let us consider this:

) A way to work around this is to provide a license which is an open 
) source license but which says that every time you _copy_ the program you 
) must pay the developer a dollar.

(snip)

> Russ Nelson (who is on the OSI board) said this:
> 
> | If you have legally received a copy of a program (and
> | OSD #1 guarantees the right of the person giving you a copy to do so),
> | you are free to use it or not, as you wish.  Copyright law only
> | restricts copying.  You could only restrict the activities of a
> | *recipient* if you could require them to execute a license, but OSD #7
> | prohibits that.

But OSD #7 refers to an _additional_ license. It certainly does not refer
to the sole OSD-compliant license itself! If no users ever executed the
open source license itself, there would be no rights granted to anybody
here to worry about. No user could (legally) copy, modify, distribute,
or prepare derivative works of the software. (As I said before, whether
or not they could run it is still uncertain.)

Russ Nelson is right to emphasize the word "recipient" in the above
quotation. Indeed, if the execution of a software program is not an
exclusive right of the copyright holder, then all shareware concepts
(with or without source) are faced with a problem -- how to get the
user to execute the license at all. Considering that most shareware users
are not interested in copying, modifying, distributing, or preparing
derivative works, this is a serious problem.

But whether or not shareware-with-source can be practically or legally
enforced is not my main point. My main point is that OSD #7 cannot be
sensibly construed as a criterion that a requirement-to-pay be waived
for users to whom the software is redistributed, *without* also
implying the waiver of other kinds of requirements, such as GNU
GPL-style "viral" requirements.

Eric
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