OSD compliant shareware

[Forrest J. Cavalier III]

Bruce,

In September 2001 on the license-discuss at opensource.org mailing
list, there was a posting referencing the appeal court ruling
of MAI vs Peak.  It is the understanding that parts of the
ruling were overturned by the DMCA, (specifically adding
an allowed use at 17 USC 117 (c))  But one of the opinions
in the ruling is troublesome to the OSD.

I understand the OSD is written with the assumption that
the use of software is protected by 17 USC 117, (one copy is at
http://www4.law.cornell.edu/uscode/17/117.html), which
allows the "owner of a copy" to make copies (into RAM
for example) for the purposes of running the program.

Buried in the MAI vs Peak decision, (one copy is at
http://www.law.cornell.edu/copyright/cases/991_F2d_511.htm)
is the statement that a licensee is not an owner, and 17 USC
117 protection would not apply.  (See the footnote 5.)  
   "5. Since MAI licensed its software, the Peak customers do not qualify
    as "owners" of the software and are not eligible for protection under
     117."

This means the copying of the program into RAM is governed by the terms
of the license.

I have written what I think is an OSD compliant shareware license
(below), and some on the license-discuss list were unable
to use the OSD to reject the license.  (Some even said
that maybe the OSD was supposed to permit this kind of
shareware.)

I am writing in the hopes that you could share 
   - insights into the creation of the OSD, (why it did not
     explicitly protect the right to use,)

   - and how (if?) the OSD should best be amended to
    address the issue of use, assuming 17 USC 117 is not
    applicable permission.

Thank you.  

Forrest J. Cavalier III
Mib Software
----------------------------------------------------

Open Source Shareware

The trick is to distribute the shareware as source only.
In that case, in order to run it, it must be compiled, and
(unless you are compiling and linking in memory), that
creates a derivative work, a right reserved to the copyright
owner.   Then use the GPL method of forcing a license agreement
without signing one.

(Clause 2 and 4 are the interesting parts. Parts are heavily
borrowed from other licenses.)

The one improvement needed is that someone could make a binary,
pay the $20, and then users of that copy would not have to
pay. (They accept the license only when they made a copy or
derivative work.)  There would have to be a copyleft clauses
too, so that the license on the binary would be preserved.
(I left that out for easier reading.)

To head off OSD #7 objections, under this license "running" is not a
right "attached to the program."  If you own the copy, that right is
supplied by 17 USC 117.  If you accept the license, that right is
supplied by paying the $20 fee.

---------------------------------------------------------
Copyright (c) <year> <copyright holders>
  1. You may copy and distribute verbatim copies of the Program's
     source code as you receive it, in any medium, provided that you
     conspicuously and appropriately publish on each copy an
     appropriate copyright notice and disclaimer of warranty; keep
     intact all the notices that refer to this License and to the
     absence of any warranty, and agree and comply with the terms of
     this license.

     You may charge a fee for the physical act of transferring a copy,
     and you may at your option offer warranty protection in exchange
     for a fee.

  2. You may compile this into an executable form, or modify your
     copy or copies of the Program or any portion of it, thus forming
     a work based on the Program, and copy and distribute such
     modifications or work under the terms of Section 1 above.

  3. You may not copy, modify, sublicense, or distribute the Program
     except as expressly provided under this License.  Any attempt
     otherwise to copy, modify, sublicense or distribute the Program
     is void, and will automatically terminate your rights under this
     License. However, parties who have received copies, or rights,
     from you under this License will not have their licenses
     terminated so long as such parties remain in full compliance.

  4. This software is licensed, not sold.  If you wish to run the
     software after agreeing to this license, you must pay $20
     to <copyright holder.>

  5. You are not required to accept this License, since you have not
     signed it.  However, nothing else grants you permission to modify
     or distribute the Program or its derivative works.  These actions
     are prohibited by law if you do not accept this License. 
     Therefore, by modifying or distributing the Program (or any work
     based on the Program), you indicate your acceptance of this
     License to do so, and all its terms and conditions for using,
     copying, distributing or modifying the Program or works based on
     it.


    THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND,
    EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF
    MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
    NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT
    HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY,
    WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM,
    OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER
    DEALINGS IN THE SOFTWARE.

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