RealNetworks' RTSP Proxy License

Thu Sep 6 17:29:29 UTC 2001

Here is my review of RealNetworks' RTPS Proxy License.
Please, do correct or complement my comments wend necessary.

At 12:46 05-09-2001 -0700, you wrote:
>Response:
>This is very similar to the BSD license.  The jurisdiction for disputes is 
>changed to the State of Washington, and there's a section on export 
>restrictions.

Well IMHO, it is more similar to the Intel Open Source License than to the 
BSD License.

>==============================================================
>B.  Full text of the license
>--------------------------------------------------------------
>
>RTSP Proxy Kit License (2001-02-06)
>
>This License Agreement ("License Agreement") is a legal agreement between
>you (either an individual or an entity)

Persons and corporations are equivalent entities under the law. You might 
wanna create
a Definition Section.

>and RealNetworks, Inc. and its suppliers and licensors (collectively "RN")
>for the for RealNetworks' RTSP Proxy Reference Kit ("Software").

for the for ? And This is a little messy i suggest you rewrite this part.

>YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ
>THIS LICENSE, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND
>CONDITIONS.  IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, DO
>NOT USE THE SOFTWARE.

I think you RN have the obligation to put this warning on the download 
page, but not in the license, and "IF YOU DO NOT AGREE TO THE TERMS OF THIS 
LICENSE AGREEMENT, DO NOT USE THE SOFTWARE.", is unnecessary, they have to 
agree with the license or else they cannot use it. It is like saying to a 
kid, "if you don't put a coin on the pinball machine, don't use it". look 
at the this part from Sun Bin. License (it is not OSI approved) but i think 
this is what you want you really wanna say.

READ THE TERMS OF THIS AGREEMENT AND ANY PROVIDED SUPPLEMENTAL LICENSE 
TERMS (COLLECTIVELY "AGREEMENT") CAREFULLY BEFORE OPENING THE SOFTWARE 
MEDIA PACKAGE. BY OPENING THE SOFTWARE MEDIA PACKAGE, YOU AGREE TO THE 
TERMS OF THIS AGREEMENT. IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, 
INDICATE YOUR ACCEPTANCE OF THESE TERMS BY SELECTING THE "ACCEPT" BUTTON AT 
THE END OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS, PROMPTLY 
RETURN THE UNUSED SOFTWARE TO YOUR PLACE OF PURCHASE FOR A REFUND OR, IF 
THE SOFTWARE IS ACCESSED ELECTRONICALLY, SELECT THE "DECLINE" BUTTON AT THE 
END OF THIS AGREEMENT.

Try to modify this warning to meet your needs, or erase the warning from 
the license completely.

>1. GRANT OF LICENSE.
>
>Subject to the provisions contained in this License Agreement, RN hereby
>grants you a non-exclusive, non-transferable, perpetual, worldwide license
>to use, modify or redistribute the Software subject to the following terms
>and conditions:
>
>(a) The copyright notice ("(c) 2001 RealNetworks, Inc.") and this copy of
>this License Agreement shall appear on all copies and/or any derivative
>versions of the Software you create or distribute.

Change the wording "derivative versions" to "derived works".

>(b) You acknowledge and agree that RN is and shall be the exclusive owner
>of all right, title and interest, including copyright, in the Software.
>All rights not expressly granted to you are reserved to RN.

I think this is Clause 3 Derived works incompatible. you might want to 
modify this.

>2.  SOFTWARE MAINTENANCE AND UPGRADES.
>
>RN is not obligated to provide maintenance or updates to you for the
>Software. However, any maintenance or updates provided by RN shall be
>covered by this Agreement.

I don't get this clause, "RN is not obligated to provide maintenance or 
updates...", this is common sense, this is open source software license, it 
is not a contract of services, you don't need to put this on the 
license,  delete it, and simply release the updates, maintenance ( i 
suppose RN you mean patches ?) under the same license.

>3.  DISCLAIMER OF WARRANTY.
>
>The Software is deemed accepted by you.  Because RN is providing you the
>Software for free, the Software is provided to you AS IS, WITHOUT WARRANTY
>OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
>REALNETWORKS FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION
>ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
>PURPOSE, AND NONINFRINGEMENT.  THE ENTIRE RISK ARISING OUT OF THE USE OR
>PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. TO THE MAXIMUM EXTENT
>PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL REALNETWORKS OR ITS
>SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT,
>SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT
>LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,
>LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS
>AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF
>REALNETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE
>SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
>LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY
>NOT APPLY TO YOU.

No problem here. But you might want to make it a little bit shorter.

>4. INDEMNIFICATION.
>
>You hereby agree to defend, indemnify, and hold RN, its directors,
>officers, employees and agents, harmless from any and all claims, damages,
>and expenses (including attorneys fees and costs) of any nature arising out
>of the use, modification, or redistribution the Software or any derivative
>versions thereof.

Again this is unnecessary, with the disclaimer of warranty you are 
protected from being prosecuted.
This clause actually scared me wend i first read it, i have to say an 
indemnification clause has no reason to be in a open source license. This 
clause should be deleted.

>5. U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS: This Software
>and documentation are provided with RESTRICTED RIGHTS.  Use, duplication or
>disclosure by the Government is subject to restrictions set forth in
>subparagraphs (a) through (d) of the Commercial Computer
>Software--Restricted Rights at FAR 52.227-19 when applicable, or in
>subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer
>Software clause at DFARS 252.227-7013, and in similar clauses in the NASA
>FAR supplement, as applicable.  Manufacturer is RealNetworks, Inc./2601
>Elliott, Suite 1000/Seattle, Washington 98121.  You are responsible for
>complying with all trade regulations and laws both foreign and domestic.
>You acknowledge that none of the Software or underlying information or
>technology may be downloaded or otherwise exported or re-exported (i) into
>(or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea,
>Iran, Syria or any other country subject to a U.S. embargo; or (ii) to
>anyone on the U.S. Treasury Department's list of Specially Designated
>Nationals or the U.S. Commerce Department's Denied Parties List or Entity
>List.  By using the Software you are agreeing to the foregoing and are
>representing and warranting that (i) no U.S. federal agency has suspended,
>revoked, or denied you export privileges, (ii) you are not located in or
>under the control of a national or resident of any such country or on any
>such list, and (iii) you will not export or re-export the Software to any
>prohibited county, or to any prohibited person, entity, or end-user as
>specified by U.S. export controls.

Jeffry, is right, this is not OSD Clause 5 Compatible, one solution to this 
problem, would be.

 From the Intel Open Source License:
EXPORT LAWS: THIS LICENSE ADDS NO RESTRICTIONS TO THE EXPORT LAWS OF YOUR 
JURISDICTION. It is licensee's responsibility to comply with any export 
regulations applicable in licensee's jurisdiction. Under CURRENT (May 2000) 
U.S. export regulations this software is eligible for export from the U.S. 
and can be downloaded by or otherwise exported or reexported worldwide 
EXCEPT to U.S. embargoed destinations which include Cuba, Iraq, Libya, 
North Korea, Iran, Syria, Sudan, Afghanistan and any other country to which 
the U.S. has embargoed goods and services.

Please notice that i am completely against Export Restrictions, if i can 
travel everywhere i want, why should my software not be allowed to do the 
same ? In a virtual world i recognize only one identification and that is 
an IP address, that has no nationality. And i think that the Intel license 
should not have been approved.

I really don't get this U.S. export laws, do you think a group of cyber 
terrorist, really cares about U.S. export restrictions, don't you think 
they use the most advanced cryptographic algorithms, just to show you an 
example, a couple of weeks ago i was searching a couple of embargoed 
countries security sites, and i came across many cryptographic software 
that has export restrictions.

This restriction does not make sense in the cyber world, 1) If Cyber 
terrorist want to use the software they will do so, paying no attention to 
license restrictions, 2) If some legitimate entity, like a software 
company, a university, or an individual developer, wants to contribute to 
the project he is restricted to do so.

>6. GOVERNING LAW; ATTORNEYS FEES.
>
>This agreement shall be governed by the laws of the State of Washington and
>you further consent to jurisdiction by the state and federal courts sitting
>in Seattle, Washington.  If RN employs attorneys to enforce any rights
>arising out of or relating to this Agreement and prevails, RN shall be
>entitled to recover reasonable attorneys' fees from you.

Hum, are you releasing this to sue me, i don't think an open source 
developer or user, is very comfortable with this clause, but this is not an 
OSD problem.

>7.  ENTIRE AGREEMENT.
>
>This agreement constitutes the complete and exclusive agreement between RN
>and you with respect to the subject matter hereof, and supersedes all prior
>oral or written understandings, communications or agreements not
>specifically incorporated herein.  This agreement may not be modified
>except in a writing duly signed by an authorized representative of RN and
>you.

Hum, i don't think this is compatible with Clause 7 Distribution of License.
If you modify the license, the modifications have to apply to "all", and 
not just "you".
Which means that you have either to include sublicensing, or delete the 
last phrase
of the entire agreement clause.

>Copyright (c) 2001 RealNetworks, Inc. and/or its suppliers.  2601 Elliott
>Avenue, Seattle, Washington 98121 U.S.A.  All rights are reserved.
>
>RTSP Proxy License Agreement 2-06-01

I find this License according to the OSD:
Clause 1 Compatible.
Clause 2 Compatible.
Clause 3 Incompatible and Confusing.
Clause 4 Compatible.
Clause 5 Incompatible.
Clause 6 Compatible
Clause 7 Incompatible and Confusing.
Clause 8 Compatible.
Clause 9 Compatible.

My recommendations to the License Authors:
Review the license, according to the recommendations
made by the license-discuss at opensource.org members.

My recommendations to the OSI Board of Directors:
Do NOT Approve this license at is current state.

Thank You for your time, Best Regards, and Have a Nice Day...
Daniel MD [DanielMD at im-thinking.com] of IM-Thinking Consulting.

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