license idea

Don Jarrell don at
Wed Jul 16 17:14:15 UTC 2003

I think all the feedback on this license is great and 
on-point.  I want to comment on the broader perspective 
of how you got headed in this direction. And, IANAL, 
TINLA. Amen.

We have seen many licenses on this list (and I have seen 
even more from clients, potential clients and "social 
affiliates") that similarly miss some OSD tenets 
(frequently the non-discrimination), and strike a similar 
chord fundamentally.  Seems like you started out from 
a socio-political statement, eschewing the greed of 
"others", massive revenue and control, while trying 
to maintain some revenue and control for yourself. Then 
you tried to glue on the OSD tenets.  What I offer as 
an alternative thinking approach is "not yet soup"; it 
is just what I have been discussing with a few licensing 

Start thinking about writing a *proprietary* license 
(they usually don't discriminate against anyone who will 
pay the fee, and have no overt political theme). Then:

- take out the prohibition against redistribution
- take out the prohibition against modification
- set the price you want for direct licensees (could be $0)
- forget about any binding contractual effect

You're 90% of the way home.  Add a pinch of salt, and
re-read the OSD, the copyright act, and Georgia-Pacific 
v US Plywood. (just kidding)  You do need to consider:
- requirements that mods be provided to licensor
- bounds, if any, on what constitutes "distribution"
- jurisdiction
- (maybe) the patent 'thingy'
- projection of the license terms upon distribution of
  derivative works
- maybe a few other fine points (as for the disclaimers
  of warranty and liability, those are pretty much the
  same as in most proprietary licenses anyway)

I ABSOLUTELY do not wish to take away anything from the
OSD or OSI. (Larry and I are co-presenting at a conference
in September).  Or, the GPL for that matter.  It is just
that when you start with a paradox of interests, as I
believe you did, it is difficult to get away from it.

Writing a license is not as easy as some believe. Many
of the contributors here are well qualified to develop 
licenses with great legal bases AND effective treatment
of needs in business, social responsibility, and good
ol' sustenance.  I strongly recommend studying the
various leading flavors of available licenses and picking
one of those.  Though, such discussions are great brain 
exercise, and much of what you crafted you looks good.

Cheers.     dj 

Don B Jarrell                don at 
Digital Thinking Inc.        512 266 7126        office   972 467 6793        mobile 

> -----Original Message-----
> From: Mark Rafn [mailto:dagon at]
> Sent: Wednesday, July 16, 2003 9:26 AM
> To: Ryo Chijiiwa
> Cc: license-discuss at
> Subject: Re: license idea
> On Wed, 16 Jul 2003, Ryo Chijiiwa wrote:
> > On 7/16/2003, "Giacomo A. Catenazzi" 
> <cate at> wrote:
> > >> 2)  For-profit organizations may 
> re-distribute the software, however if
> > >> they charge more than a reasonable 
> "distribution" fee, they must pay
> > >> royalties to the project.
> > >
> > >free as in speech? Not only individual are free 
> to speech. Why you
> > >discriminate organizations? Surely not free (5: 
> No Discrimination
> > >Against Persons or Groups)
> Agreed, this is not an open-source license.  Just 
> for clarity, what about 
> for-profit individuals?  
> > Isn't that a lot like saying income taxes are 
> descriminatory because it
> > only applies to a particular group of people 
> (i.e. people with a certain
> > amount of income)?
> Of course they are.  Income taxes are not free either.
> > No.  Your contribution is in return for using my 
> software.  So you
> > contribute, and we're even.
> Be clear about the distinction between use and 
> distribution.  Not that 
> this required fee (to submit their work to you) is 
> free in any case, but 
> any use restriction is beyond even that.
> > Consider this: $50 for a corporation is nothing, 
> but for me, that's 1-2
> > weeks' worth of food.  At the end of the day, if 
> they don't think the
> > software's even worth that much, they really 
> shouldn't be using it
> > anyway.
> Fair enough.  Of course, if you feel the need to 
> judge which users can
> afford to pay, you really shouldn't be calling it 
> open-source.
> --
> Mark Rafn    dagon at    <>  
> --
> license-discuss archive is at
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