OSD modification regarding what license can require of user

[David Johnson]

On Wednesday 13 March 2002 12:20 pm, Bruce Perens wrote:

> 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.

Not good. Very bad. Keeping OSS/FS licenses well within the bounds of 
"permissions on top of copyright" is the goal. Anything less than that starts 
infringing upon the users' rights and taking away their liberties, and must 
be rejected. If it means that some otherwise excellent license cannot be 
approved as Open Source (or Free Software), then so be it.

The use of the work should never be restricted. The domain of the user should 
never be violated.

> A use restriction might turn out to be necessary to solve the ASP problem.

If a restriction on use is necessary to solve the problem, then maybe it 
isn't a problem after all. Maybe those that do see it as a problem will have 
to find some other mechanism than a certified Open Source or FSF approved 
license.

> 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.

The problem with these indemnification clauses, and other clauses that 
restrict the users rights, regardless of whether the software is Open, Free, 
Closed or Proprietary, is that you cannot require the user to accept 
licensing terms *after* they have legally aquired the software. Granted, 
there have been some court decisions to the contrary, but that doesn't give 
shrink-wrap, click-wrap, or the distressingly common "use-wrap", any ounce of 
moral authority.

Let's say I legally aquire a copy of Gump, with an attached pseudo-GPL 
containing a clause requiring me to indemnify the author and provide source 
code to any users of any web services I might employ using the software. I 
can refuse to accept the license and STILL be able to use the software.

The only way around this is for the author to put his morality on the shelf 
and try to impose click-wrap licensing on me (bad), or to be honest and 
present me with a contract prior to my aquisition of the software (doubtful 
it would meet the OSD), or to make these terms a condition of the granted 
permissions. The latter might fit into the OSD somewhat, but it would still 
be a no-op regarding the ASP issue.

p.s. I am not a lawyer, nor do I play on on TV. My understanding of the law 
may be grossly out of whack, but I still think I have a bit of knowledge 
regarding what's right and what's wrong.

-- 
David Johnson
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