OSD Model Code -- Article 1 (Free Distribution)

[Mark Shewmaker]

On Sun, 2003-01-19 at 14:26, Lawrence E. Rosen wrote:
> 
> Article 1 now reads as follows:
> 
>    "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
>    sources.  The license shall not require a royalty or
>    other fee for such sale."
> 
> I think this Article really means: 
> 
>    "The license must permit all licensees to make copies of
>    the software without payment of additional royalties to 
>    the licensor.  The license cannot restrict licensees 
>    from either selling or giving away those copies."

[...]

> Should we reword the OSD where appropriate to achieve clarity?

I'm worried that this rewording could change OSD requirements for the
case of code incorporated into collections for which compilation
copyrights are claimed.

Going back for a moment to the case of the GPL:

| In addition, mere aggregation of another work not based on the Program
| with the Program (or with a work based on the Program) on a volume of
| a storage or distribution medium does not bring the other work under
| the scope of this License.

I have always assumed that if you put together a bunch of GPL programs
on a CD and sold it, that was one thing, but if instead you claimed that
you selected and put the programs together in some artistic or creative
fashion and claimed a compilation copyright on the whole thing, that it
would no longer be a "mere aggregation", and that the collection as a
whole would have to be distributed on terms compatible with the GPL.

(That is, I've always assumed that you can't claim that you've put
together a "mere aggregation" of programs while at the same time
claiming that you've been creative enough in your selection to warrant a
compilation copyright on the whole thing.)

Although the current Article 1 restricts licenses from making claims on
aggregate collections that include covered code, it doesn't seem to make
such restrictions if the collections are more than just a mere
aggregation of covered code.

I'm worried that your new Article 1 might restrict licenses from making
claims on collections that are more than mere aggregations, because even
though those collections for which a compilation copyright is claimed
are necessarily a derivative work (IMHO), programs would likely be
included as whole copies, and your new Article 1 says that the license
can't restrict licensees from selling or giving away copies, with no
exceptions made if in merely making the copy they're also making a
derivative work.

(BTW, article 8 is a moot point.  Even if the license "allows" the new
compilation to be distributed under the same license, Article 1 seems to
be implying that it can't make any particular requirements about the
compilation as a whole, such as saying it must be distributed under this
license.)

That's my worry about your proposed change.  (I'm not a lawyer here, so
maybe I'm thinking about this all wrong, or maybe I'm confused on some
basic points somewhere, but it seems to me as if your rewording would
really change things.) 

 -Mark Shewmaker
  mark at primefactor.com
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