OSD modification regarding what license can require of user

Bruce Perens bruce at perens.com
Wed Mar 13 20:20:07 UTC 2002

Please make sure replies in this thread are copied to "bruce at perens.com".
I'm afraid that my life is so complicated of late that I don't often have
time to read lists, no matter how important they are.

The assignment is to propose a modification to the OSD to make explicit
the implicit prohibition in the OSD on odious requirements on the user.
The examples of odious user requirements that are brought up most often
are badgeware ("if you use this software, put my icon on your home page")
and spyware (the Bitkeeper reporting feature), but there have been others.

So, I've been thinking about this for a month.

It has been contended that today the only requirements the OSD can place on
the user are those embodied in a copyright permission, due to the
language in OSD #7. Others contend that OSD #6 applies as well. I'd rather
not expand those arguments here, except to note that this is not nearly
explicit enough for my taste.

It is very tempting to ask for the OSD to say "no requirements connected with
use, whatsoever". But I don't believe that's what we should do.

It was an explicit goal when we created the OSD that the GPL be
accomodated. An important goal of the GPL and a few similar licenses is
to prevent the producers of proprietary software from parasitizing Free
Software creations by including them in proprietary works. The GPL prevents
the proprietary programmer from deriving from GPL works unless he is willing
to give everybody all of the GPL rights on his derived work. This protection
has made the GPL very attractive. It's our most-used license. 

The GPL creators contend that a copyright permission is all they
need to enforce the derived-works provision of the GPL, even in the
context of dynamic linking. A future version of the GPL could deal with
even-less-direct forms of linking such as daemonizing for the purpose of
license-circumvention and use of object brokers to make a program that
acts as if it's linked but actually occupies two or more separate
address spaces.

There is exactly one court case regarding "dynamic linking" and derivative
works, Nintendo vs. Goloob Games, and it's not entirely germane. I'll
give an oversimplified synopsys here: Goloob made a cartrige that
the user could plug into their Nintendo game, and then could plug
the Nintendo cartrige into that. The Goloob cartrige would give the
user's game character powers greater than the normal constraints of the
game. Nintendo claimed that the Goloob cartrige was a derivative work,
Goloob disagreed. The judge found for Goloob. The judge made a point of
noting that this case should not be considered to be definitive.

So, what if it turns out that the present GPL doens't hold up with regard
to dynamic linking? Some future version of the GPL might have to place a
constraint on the user regarding combination of works on the user's system
that would, if it were distributed in that form, be considered a derived work.
I think that should be allowed by the OSD.

Let's consider also the "ASP problem". Somebody makes extensive changes
to a GPL work, and deploys that work as a service, perhaps via .NET, rather
than distributing the work. This circumvents the GPL because the GPL terms
activate upon distribution. We had thought to use the copyright law provisions
on public performance rights to restrict this sort of behavior, but this
is problematical since copyright law only admits to the existence of
public performance rights for certain sorts of work, and software is not
among them. A use restriction might turn out to be necessary to solve the
ASP problem.

The above is theoretical, especially since the GPL creators are so far
loath to consider restrictions upon the user - they only want to have
their licenses give the user permissions, and have the user restricted
only by what is the default in copyright law. So, consider that rather
than a future GPL with use restrictions there might be other, GPL-like,
licenses that contain these restrictions, and are not from FSF, and are
worthy of our support.

Some licenses insist that the user indemnify the copyright holder and
distributors of the software from damanges sustained in connection
with use or distribution of the software. This puts some teeth in the
"No Warranty" component of the license. I'd be uncomfortable with an
OSD change that prohibited that sort of requirement.

Suppose an Open Source license, as a software patent defense, prohibited
users from obtaining patent licenses in connection with the covered
work? The intent would be that the patented principle be available to
either everyone or nobody at all, in connection with the covered work. This
seems to be in alignment with the FSF's approach to patents. We are
approaching a time when our hands could be seriously tied by interlocking
software patents, to the extent that we are constrained from
distributing software under OSD-compliant licenses. Thus, I'm interested in
defenses against software patents, even if the only workable ones turn out to
be "poison the well" defenses.

Thus, there seem to be a few sorts of requirement on the user that I think
_should_ be permitted by the OSD. All of them are intended to further the
goals of Open Source or Free Software.

Can you think of more that should be added to this list?



On Sun, Feb 10, 2002 at 11:35:15PM -0500, Russell Nelson wrote:
> Steve Mallett writes:
>  > On February 9, 2002 04:50 pm, Bruce Perens wrote:
>  > > I'd be happy to write the first draft and coordinate comments and changes
>  > > to it. Of course it would be a group project as I'd need to consult lots of
>  > > people - attorneys, community leaders, a discussion list, etc.
> Cool.
>  > > I suspect that some of the things I am worried about fail the current OSD
>  > > under "use" restrictions, but not as explicitly as I'd like.
> There is much in the OSD which is insufficiently explicit.  For
> example, we have maintained that there are no possible restrictions
> a license could put on users, because there is no possible mechanism
> one could use to constraint them, because no approved license can
> require that the user execute a license (OSD#7).
>  > It frightens me that no one has (on the list) bothered to ask what the 
>  > additions might address.  Bruce?
> Bruce isn't an idiot.  He wouldn't propose additions we wouldn't be
> likely to accept.
> -- 
> -russ nelson              http://russnelson.com | Crypto without a threat
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