OSD Model Code -- Article 1 (Free Distribution)

Rod Dixon, J.D., LL.M. rdixon at cyberspaces.org
Mon Jan 20 18:24:45 UTC 2003

Good point regarding misuse since the initial confusion arose from the use
of "aggregate software" in the OSD.  Under Art. 1-1, I will delete footnote

As for Larry's revision of Art. 1 of the OSD, that seems fine with me and
consistent with the original annotated version of the OSD. In removing the
reference to aggregate software distributions, we remove many fuzzy issues
that could arise with those type of distributions.


----- Original Message -----
From: "Lawrence E. Rosen" <lrosen at rosenlaw.com>
To: "'Rod Dixon'" <rodd at cyberspaces.org>
Cc: <license-discuss at opensource.org>
Sent: Sunday, January 19, 2003 2:26 PM
Subject: OSD Model Code -- Article 1 (Free Distribution)


In your commentary (§1-1) on Article 1 of the OSD ("Free Distribution")
you reference several cases on copyright misuse.  That confuses me.  The
copyright misuse doctrine has no application for that article of the

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."

How can this ever be copyright misuse, since this provision imposes no
restrictions whatsoever on downstream licensees?  There is merely a
self-imposed limitation on the licensor's right to collect royalties for
copies made by those licensees, a limitation he voluntarily accepted by
deciding to license his software as open source.

With my rewording, there's also no need for the confusing term
"aggregate software distribution."  We only need to rely on the
definition of the term "copies" in the Copyright Act.  17 USC §101.

Should we reword the OSD where appropriate to achieve clarity?

/Larry Rosen

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