OSL Version 1.0 dated 8/2/2002
Lawrence E. Rosen
lrosen at rosenlaw.com
Fri Aug 2 20:40:31 UTC 2002
Section 117 of the Copyright Act allows the copying of a computer
program "as an essential step in the utilization of the computer
program." That doesn't mean that one cannot contract that right away.
I would not suggest that any open source license do so. But an open
source license can -- unless I'm misreading the OSD -- provide that
anyone who makes such copies and distributes them provide access to the
source code. And such a contract is NOT against the Copyright Act.
As I suggested earlier, I honestly don't much care whether someone makes
a copy of an open source program. What many open source software owners
care about is when they create derivative works, use those derivative
works to make money by selling the *use* of the program (perhaps by
providing an Internet service), and then not return the source code so
that everyone else can benefit from those modifications.
Legally, I can prevent that result through contract, and section 117 of
the Copyright Act doesn't prevent me from doing so.
> -----Original Message-----
> From: Ken Arromdee [mailto:arromdee at rahul.net]
> Sent: Friday, August 02, 2002 12:59 PM
> To: license-discuss at opensource.org
> Subject: RE: OSL Version 1.0 dated 8/2/2002
> On Fri, 2 Aug 2002, Lawrence E. Rosen wrote:
> > > Someone could refuse to accept your license (thus also
> > > refusing to accept your definition of distribution). If he
> > > refuses to accept your license, he could then Externally
> > > Deploy the code without being bound by the license. This
> > > provision accomplishes little.
> > Are you suggesting that the following provision in the OSL
> won't work
> > to prevent the copying that is essential for use of a
> software program?
> > 8. Acceptance and Termination. Nothing else but this
> > License (or another written agreement between Licensor
> > and You) grants You permission to create Derivative
> > Works based upon the Original Work, and any attempt
> > to do so except under the terms of this License
> > (or another written agreement between Licensor and
> > You) is expressly prohibited by U.S. copyright law,
> > the equivalent laws of other countries, and by
> > international treaty. Therefore, by exercising any
> > of the rights granted to You in Section 1 herein,
> > You indicate Your acceptance of this License and all
> > of its terms and conditions. This license shall
> > terminate immediately upon Your failure to honor
> > the proviso in Section 1(c) herein.
> Yes, I'm suggesting exactly that. Copying of the program
> into memory in order to run it is permitted by law. The user
> may therefore do so without accepting the license. The
> clause above says you can't make derivative works without
> accepting the license, not that you can't make copies.
> (And even if you argue that copies are derivative
> works--IANAL, but I don't know if you could get away with
> that--that would simply mean that that clause is wrong.
> Section 117 of the US copyright law lets you copy the program
> into memory in order to use it. If you're going to consider
> that a derivative work, then yes, something else *does* let
> you make derivative works.)
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