Approval request for BXAPL

[Nathan Kelley]

To OSI License Discussion <license-discuss at opensource.org>,

>> From: Nathan Kelley <phyax at runbox.com>,
> From: "Abe Kornelis" <abe at bixoft.nl>,

>> I have read the Bixoft Public License (proposal version). I believe 
>> that it is consistent with the Open Source Definition, and meets the 
>> requirements for OSI certification.
>>
>> However, I do have a few questions on it:
>>
>> Item 10: The stated intention is to "denote software items that use 
>> the Software, but that are not Derivatives of it". But do the 
>> provisions of 10 achieve that? What modifications to the programming 
>> tools, as stipulated in c), are sufficient to make the output a 
>> derived work?
>
> Modifications to the Programming Tools will create a Derived work, as 
> dictated by Copyright Law. When I started out, no such thing as 
> Dependent Software existed, neither in my mind nor anywhere else. In 
> the process of refining however, it dawned upon me, that regarding any 
> software made with a programming tool as a Derivative imposes 
> unrealistic restrictions on the author of such 'derived' software. So I 
> introduced the term 'Dependent Software' and tried to define it as 
> software that makes use of the programming tools without modifying 
> them. The distinction thus draws upon the Copyright Holder designating 
> Programming Tools as such. I tried other approached for making the 
> distinction but could not find anything that satisfied. So, as long as 
> Dependent Software contains no Modifications to the Programming Tools 
> in the Software, it is just that; otherwise it becomes a Derivative and 
> must be subjected to the more stringent redistribution rules in the 
> license.

OK. You might then want to use the term "Modifications", capitalised as 
shown, to indicate it refers to modifications as per your glossary 
definition. Otherwise, it *might* technically indicate that even things 
like changing configurations for compilation, like the output path, 
could be classified as modifying the Programming Tools, which would make 
the output derived.

>> Item 16: I could be completely wrong here, but a) seems to effectively 
>> create a situation where patent holders would pay others for use of 
>> their own patents, while all third parties would be allowed to 
>> continue infringement - with the only alternative being to withdraw 
>> the claim. Is this correct? While I would love to see some large 
>> patent holders taken down a peg or two, I believe this will be ruled 
>> unenforceable should it ever get to court.
>
> Steve already answered this one, but I'd like to add my tuppence: 
> First: an infringement claim does not imply actual infringement until 
> the court's decision has become irrevocable and indisputable. Second: 
> the claim for royalties is for the Software, whether infringing or not. 
> The royalties are not for the patent, since the situation arises only 
> when these are under dispute. It is mainly intended to prevent the 
> 'Patent Holder' from raising a claim and at the same time using the 
> Software without any retribution. If the Patent Holder wants to get 
> something out of his/her patent, then he/she should also be willing to 
> pay a fair amount for using the Software. Third: I did not make this 
> up, I think I have been 'inspired' by the CPL/IBMPL.

I understand that "innocent until proven guilty" is a core tenet here. 
Unfortunately, patent law has always been designed so that the owners of 
the patents receive monies from those using them. While there isn't 
really anything wrong with the way item 16 is put together, I still see 
the fact that a well-worded petition to the judge would see it ruled 
unenforceable... at which point we get precedent, at which point item 16 
becomes essentially useless for protecting open-source developers.

Cheers, Nathan.
________________________________________________
Nathan "Phyax" Kelley

    email | phyax at runbox.com, phyax at mac.com
      icq | 4618849
    yahoo | phyax
________________________________________________

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