Validity of the OSL version 2.0 license in Europe

[Mikko Valimaki]

Well, one big issue is that EU law does not recognize "derivative 
works". It is a US legal concept.

Consider article 2 of the directive on computer program copyright, which
states as prohibited act: "(b) the translation, adaptation, arrangement 
and any other alteration of a computer program and the reproduction of 
the results thereof, without prejudice to the rights of the person who 
alters the program". This is perhaps what european judges should take as 
a starting point when considering what constitutes a derivative work. I 
don't know any good european cases on the issue.

Interpreting the directive wording, one could say that the European 
definition of derivative works is much broader and stricter compared to 
US: any alteration of existing works creates a derivative work. Instead, 
in the US, the new work must be based on the underlying work. Maybe this 
is just semantics but in the context of computer programs, taking only a 
short passage of someone’s copyrighted source code into a combined 
program could be considered as an "alteration of the work" while the new 
program might not be considered as being "based on" the recycled code...

Anyway, this does not mean that OSL wouldn't been valid. It may, 
however, be very unreadable to lawyers (and developers) outside the US.

Regards,
Mikko

Lawrence E. Rosen wrote:

> To: European attorneys on this list
> 
> Several questions have been raised on other lists about the validity of
> certain OSI-approved open source licenses in Europe.  
> 
> To focus the problem, we really need to know whether any provision of
> the Open Software License version 2.0 is invalid anywhere in Europe.  
> 
> The latest version is at www.rosenlaw.com/osl2.0.html.
> 
> Will the European attorneys who lurk on this list PLEASE give us some
> feedback, either publicly or privately to me.  I can report already that
> the feedback I've already received privately on this question is
> extremely encouraging.  Thanks!
> 
> /Larry Rosen
> General counsel, Open Source Initiative
> 
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> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3


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