OSL Version 1.0 dated 8/2/2002

[Ken Arromdee]

On Fri, 2 Aug 2002, Lawrence E. Rosen wrote:
> 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.  

Yes...  but nobody has to accept the contract, either.

There's a clause in the GPL which may sound like that, but it's poorly worded.
The GPL says that by distributing the program, you've accepted the license.
What that *really* means is something like "by distributing the program,
you've either accepted the license, or broken copyright law".

It isn't a generalized "by doing X, you've accepted the license" where X
can be anything at all.  X can only be a limited range of things--it has to
be something that's against the law if done with no license.  "Copying the
program into memory" and "'distributing' the program over the web" aren't
among such things.

> 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.

If you try that, people will just refuse to accept the contract and do it
anyway.  Since those activities are (unlike similar GPL-violating activities)
legal without a contract, that will work for them.

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