OSD modification regarding what license can require of

Bruce Perens bruce at perens.com
Thu Mar 14 06:33:26 UTC 2002

Bruce wrote (in part)
> Is this fair to them? I contend that this sort of activity should
> be placed outside of the covenant represented by the GPL. Richard and
> Eben don't necessarily agree with me - yet.

On Thu, Mar 14, 2002 at 12:37:06AM -0500, Forrest J. Cavalier III wrote:
> Is the goal here guaranteeing freedom of use, or is it trying
> to increase the amount of source which must be published?

I'm not sure the FSF folks would make a distinction between the two.

My concern here is that, as a result of those court tests of the
GPL that have not yet happened, we may run up against a situation in
which _copyright_law_is_inadequate_ to implement the GPL's agenda. And
they may have to fall back upon contract law, including some form of
tear-open license, and even one which applies to the user. Some say that
they already have a tear-open license, due to the presence of the words
"you agree" in the GPL.

FSF would not make such a change lightly, and not soon. Richard is the
most self-consistent person I know, and it would offend him to do this.
But if it becomes necessary for them to go down that path, and the result
ends up being non-OSD-compliant, this becomes another wedge between FSF
and OSI. I've created enough schism around here, I don't want to make
more. And I don't feel I can bet on OSI being agile enough to accomodate
FSF when the need for change happens, so I want to leave the room now. At
the same time, I don't want there to be a possibility of it being abused.

But you could drop the entire GPL argument, and just consider
indemnification of the developer and distributor by the user. No way are
any of us going to accept liability for free software, we can't afford
to do so. Yet there are various laws existing or in process that threaten
us with just that. If it takes a tear-open license to protect ourselves from
liability, I don't want to be left in the position of being constrained from
using one.

> Bruce, I know you are at the "collecting ideas" stage,
> and discussing details and mechanisms under development
> may just be inflammatory at this point. But can you
> share some more of your thoughts?  
There isn't much more than what I have posted. If any of you would be
more comfortable discussing this on the phone, you are welcome to call
the number on my web site during 10 AM to 7 PM US-Pacific time.

> Going in the other direction (to allow OSI approval of licenses
> which are binding only under contract law, and not copyright law)
> is going to require sacrificing OSD #1, right?

No, I don't yet see that. I think that most of the rights that you are
concerned about are explicit in the OSD anyway, and in the licenses
approved under the OSD, and don't really depend on whether or not the
user owns their copy.

> It was my understanding that it can be hard to convince a court
> that a gratis download binds the recipient to a contract/license.
> (Because there is no consideration.)  
We're in good shape as far as liability is concerned if that works both

> If these changes are made, the OSD will have to be expanded in
> order to explicitly require each license include the fair use
> and other permissions already in 17 USC, as well as explicitly
> prohibit other usage restrictions.

Well, I am a little concerned that 17 USC is part of the _US_ code.
In Europe they have this "moral right of authorship" which is not
parallel to the way we do things here. Thus, I think we need some
explicit language regarding the use permission in the license, for
no other reason that it should apply across national boundaries.

> Is that kind of complex rewrite what you are considering?

No, I want this to fit in one paragraph. This is something more than
"The license must not place any restrictions on use", but not much
more. Something in the form of "The only permissible use restrictions
are X, Y, and Z. Goals that I can't fit in such a simple form will
probably not be achieved.


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