discuss: Update for Submitted License

[Nathan Kelley]

To OSI License Discussion Subscribers,

> From: Stefan Wachter <Stefan.Wachter at gmx.de>,

(Note: I've removed the HTML tags and cleaned up the layout since there 
was no HTML-encoded version of the original message. I have left the 
entire license intact in case you want to use the plan-text version.)

> Preamble
>
> The intent of this document is to state the conditions under which 
> JBind may be used, modified, and copied. The conditions state that the 
> Copyright Holder maintains some semblance of artistic control over 
> JBind and require that the Copyright Holder receives a modest 
> attribution in case that JBind is used in a commercial environment.

Since the license text doesn't prohibit changes to the license text 
itself by third-parties, I will assume standard copyright rules apply 
to the license text as an original work. The above text violates Item 8 
of the Definition, since there is no way for third-parties to use the 
license without the package it refers to being part of JBind:

"8. License Must Not Be Specific to a Product

The rights attached to the program must not depend on the program's 
being part of a particular software distribution. If the program is 
extracted from that distribution and used or distributed within the 
terms of the program's license, all parties to whom the program is 
redistributed should have the same rights as those that are granted in 
conjunction with the original software distribution."

> Definitions:
>
> - "Package" refers to the collection of files distributed by the 
> Copyright Holder.
>
> - "Modified Package" refers to a collection a files that was created 
> through textual modification of and additions to the Package.
>
> - "You" is you, if you're thinking about using, modifying, or 
> distributing this Package.
>
> - "Reasonable copying fee" is whatever you can justify on the basis of 
> media cost, duplication charges, time of people involved, and so on. 
> (You will not be required to justify it to the Copyright Holder, but 
> only to the computing community at large as a market that must bear 
> the fee.)
>
> - "Freely Available" means that no fee is charged for the item itself, 
> though there may be fees involved in handling the item. It also means 
> that recipients of the item may redistribute it under the same 
> conditions they received it.

The definitions you already have above are fine, however, a suggestion: 
You should add definitions to clarify the terms "Commercial", 
"Contributor", "Non-Commercial" and "Use".

> Use, redistribution, and modification of the Package are allowed 
> provided that the conditions below are met.
>
> 1. Redistributions of the Package or a Modified Package in source or 
> in binary form must contain this license.

The introductory sentence and Condition 1 above are fine.

> 2. You may use the Package or a Modified Package in any non-commercial 
> project without limitations.

This indirectly violates Item 6 of the Definition:

"6. No Discrimination Against Fields of Endeavor

The license must not restrict anyone from making use of the program in 
a specific field of endeavor. For example, it may not restrict the 
program from being used in a business, or from being used for genetic 
research."

I say indirectly because the text of condition 2 doesn't actually 
impose any limitations on commercial use; all it says is there are none 
on non-commercial use. However, by its' presence and by the fact that 
it explicitly does not mention commercial use, it indicates that there 
are limitations on commercial use that are not quashed later in the 
license, which is discriminatory.

Note that condition 2 does not violate Item 1 of the Definition since 
it does not refer to re-distribution, only use.

> 3. You may use the Package or a Modified Package in any non-commercial 
> product (probably another open source development) only if this 
> license is distributed with the non-commercial product.

In the case of both Source and Binary distributions, this indirectly 
violates Item 6 of the Definition for the same reasons as above.

Note that this condition introduces the same sorts of 'viral effects' 
that the GNU GPL is renown for when it comes to source code, but is 
otherwise fine

For Binary distributions, this condition may or may not also violate 
Item 9 of the Definition, depending on the circumstances in which a 
binary package distributed under this license and another package 
distributed under a different license interact:

"9. The License Must Not Restrict Other Software

The license must not place restrictions on other software that is 
distributed along with the licensed software. For example, the license 
must not insist that all other programs distributed on the same medium 
must be open-source software."

Note that condition 3 does not violate Item 1 of the Definition since 
it does not refer to re-distribution, only use.

> 4. You may use the Package, a Modified Package, or a non-commercial 
> product that contains the Package or a Modified Package in a 
> commercial environment, e.g. a commercial product, a commercial 
> project, or inside a company only with the written permission of the 
> Copyright Holder. Normally this permission is granted after a modest 
> attribution to the Copyright Holder.

This condition directly violates Item 6 of the Definition, since it 
discriminates against commercial use. In addition, it violates Item 7 
of the Definition, since any third-parties that receive a 
re-distributed version of software under this license need to attain 
additional permission ("license") from the Copyright Holder, even 
though the original license is not between the Copyright Holder and 
themselves:

"7. Distribution of License

The rights attached to the program must apply to all to whom the 
program is redistributed without the need for execution of an 
additional license by those parties."

Note that condition 4 does not violate Item 1 of the Definition since 
it does not refer to re-distribution, only use.

> 5. You may apply bug fixes and portability fixes. Bug fixes and 
> portability fixes must be reported to the Copyright Holder in source 
> form to allow their inclusion in the Package.

As I understand it, as long as a third-party sends fixes to the 
Copyright Holder and meet all other conditions of the license, they are 
free to re-distribute a modified version of the package themselves with 
such fixes in it. Is this correct? If so, this condition of the license 
is fine.

> 6. You may otherwise modify your copy of the Package in any way, 
> provided that you insert a prominent notice in each changed file 
> stating how and when you changed that file, provided that you rename 
> any part that is not compatible with the original Package, and 
> provided that you do at least ONE of the following:
>
>    a) place your modifications in the Public Domain or otherwise make 
> them Freely
>       Available, such as by posting said modifications to Usenet or an 
> equivalent
>       medium, or placing the modifications on a major archive site 
> such as ftp.uu.net,
>       or by informing the Copyright Holder to include your 
> modifications in the
>       Package.
>
>    b) use the Modified Package only within your corporation or 
> organization.

This condition directly violates Item 1 of the Definition, since this 
condition restricts the types of re-distribution that may occur under 
this condition:

"1. Free Redistribution

The license shall not restrict any party from selling or giving away 
the software as a component of an aggregate software distribution 
containing programs from several different sources. The license shall 
not require a royalty or other fee for such sale."

This condition also violates Item 3 of the Definition, as it does not 
explicitly allow modifications that fall under this part of the license 
to be re-distributed under this same license:

"3. Derived Works

The license must allow modifications and derived works, and must allow 
them to be distributed under the same terms as the license of the 
original software."

> 7. You may distribute the Package or a Modified Package in source or 
> binary form. If a Modified Package is distributed then information 
> about where the source of the Modified Package is available must be 
> contained.
>
> 8. You may charge a reasonable copying fee for any distribution of 
> this Package or a Modified Package. You may charge any fee you choose 
> for support of this Package or a Modified Package. You may not charge 
> a fee for this Package itself. However, you may distribute this 
> Package in aggregate with other (possibly commercial) programs as part 
> of a larger (possibly commercial) software distribution provided that 
> you do not advertise this Package as a product of your own.
>
> 9. The name of the Copyright Holder may not be used to endorse or 
> promote products derived from this software without specific prior 
> written permission.
>
> 10. THIS SOFTWARE IS PROVIDED BY THE AUTHOR "AS IS" AND ANY EXPRESS OR 
> IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED 
> WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE 
> DISCLAIMED. IN NO EVENT SHALL THE AUTHOR OR ANY CONTRIBUTOR BE LIABLE 
> FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR 
> CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, EFFECTS OF 
> UNAUTHORIZED OR MALICIOUS NETWORK ACCESS; PROCUREMENT OF SUBSTITUTE 
> GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS 
> INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER 
> IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR 
> OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF 
> ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

The rest of these conditions are fine.

COMMENTS:

I can see two core directions to your license:

(1) You want to ensure the integrity of your own original source code, 
and ensure you reap the benefits of third-party work on your license.

These are both admirable goals, but I don't feel this license will get 
too far in achieving them. The types of restrictions in this license 
about how modifications can be made and distributed certainly wouldn't 
compel me to work on the package, and I suspect other open source 
developers would feel the same way. A bit more freedom to do what you 
will with your own changes would go a long way to achieving these goals.

(2) You want to prevent the use of this package in an environment where 
it might be used to make money for others.

A lot of developers feel this way; they don't want to see their work, 
which is usually gratis, being taken advantage of by the profit motive. 
Unfortunately, the obvious lock-out effect you're trying to achieve is 
against the spirit of Open Source; 'Open' means open to everyone, 
whether with business interests or not.

Other licenses are able to achieve this, _and_ be OSD compliant, simply 
by requiring source to be cheaply (or freely) available, and by not 
allowing modifications to be kept private. As long as businesses regard 
their developers as a competitive resource, they will be reluctant to 
use source or binaries distributed under such licenses for fear of 
no-one buying their software when they can just download & compile the 
source.

CONCLUSION:

This license is not OSD-compliant. It looks like a fair amount of 
re-working will need to be done to make it OSD-compliant.

Cheers, Nathan.

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