OSD Model Code -- Article 1 (Free Distribution)

Rod Dixon, J.D., LL.M. rdixon at cyberspaces.org
Mon Jan 20 18:35:34 UTC 2003

Mark's point re-introduces the copyright misuse issue since he is correct
that there is a grey area concerning the validity of  license restrictions
on copyrightable collective works are concerned. Larry's proposal avoids
this problem as long as it is agreeable that the OSD should not have
anything to say about aggregate distributions.  I suspect that the number of
instances in which this issue could arise are minimal; hence, leaving out
references to "aggregate software" makes sense.


----- Original Message -----
From: "Mark Shewmaker" <mark at primefactor.com>
To: <lrosen at rosenlaw.com>
Cc: "'Rod Dixon'" <rodd at cyberspaces.org>; <license-discuss at opensource.org>
Sent: Sunday, January 19, 2003 11:02 PM
Subject: Re: OSD Model Code -- Article 1 (Free Distribution)

: 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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