For approval: ENCUL

[Chuck Swiger]

Mark seemed to provide the most specific criticisms of the proposed 
license; hopefully, I can provide constructive feedback in return.

Mark Rafn wrote:
[ ... ]
>>* 3. Users of this Software agree that any legal matters pertaining to the
>>*    Software or this License acknowledge the right of the author(s) to select
>>*    a local "court of appropriate jurisdiction" and have any such matters
>>*    adjudicated under the laws of the author's country, state, or province.
> 
> IANAL, so I'll let others comment on this.  I believe it's too vague to be 
> enforceable.

The members of this list who program computers are probably aware that 
the notion of context is often critical to proper understanding.  For 
example, the value or meaning of a variable often depends upon where and 
how you evaluate it, and the difference between call-by-value and 
call-by-reference semantics has a dramatic influence on usage idioms.

If I were to write a program like DeCSS, for the sake of example(!), the 
context under which that program was written, and the context under 
which the users were licensed to use it, might be critical to whether 
the RIAA sues the living daylights out of me.

My proposed license requires the author to clearly identify the legal 
context which applied when the software was created: the copyright date 
and author's location, specified via ISO country codes, clearly and 
unambiguously defines the applicable jurisdiction with regard to the 
author.  If I was a software author in Norway facing intensive legal 
pressure from a foreign jurisdiction over something like DeCSS, I would 
probably want the actions and legal consequences from the users of my 
software to be evaluated in my local context.

Furthermore-- unless the author has chosen to make the software 
available under other license terms-- the user of the software has the 
right to do so (ie, use the software) only under the terms of the 
license.  Being able to legitimately claim that your software forbids 
users from "commercial use", "reselling for profit", or however one 
wishes to phrase the notion, has relevance.

>> * 4. You may use this Software for non-commerical reasons (including research,
>> *    education, and entertainment), but you may not repackage this Software
>> *    with other software and charge a license or rental fee for this Software
>> *    alone, or for this Software in conjunction with the other software.
> 
> 
> Depending on how you read the "for this Software in conjunction with the 
> other software", this may fail OSD#1.  It must be permitted to sell the 
> software as a component of an aggregate software distribution.

If I licensed something under the exact terms of the proposed license 
today, anyone would be permitted to sell the software in aggregate 
starting in 2008.

>> *    Commercial use is not allowed without specific prior written permission.
> 
> This is a non-starter for Open Source software.  First, it restricts use 
> (as opposed to distribution or modification).  Second, it fails OSD#6, as 
> it discriminates against commercial users.  This cannot be finessed.

The precise distinction between "use" versus "distribution" for OSI 
compliance is an area that needs more consideration on my part.  Thanks 
for your comments.

Ditto the comment re: 2008.

>> * 5. "Commercial use" is defined as the inclusion or packaging of this
>> *    Software with software for which a license or rental fee is applied. 
> 
> This is a funny definition - it says "use", but then defines it in terms 
> of packaging and distribution.  You might prefer "commercial distribution" 
> or "sale".

Yes, that might be closer to what I would like to mean.

> Note that this license grants no permission to create or distribute
> derived works.  OSD#3 requires this.

Is the BSD license OSI open source?  How does it satisfy definition 3?

> This is not enough to make it open source.  After 5 years, software
> released under this license may become open source if all the other
> problems are resolved and it is a source distribution.
[ ... ]
> My recommendation would be to just release the software using a 
> proprietary license if that's your intent, and then in 5 years (or 
> whenever you like), release it under a normal open-source license.

Given the following two choices:

A: software sits on the shelf, unseen, for X years, then is released 
under, say, the BSD license (if anyone still remembers);

...or...

B: software is released to the public with certain restrictions (such as 
resale for profit) which expire after X years without further action, 
leaving the software under OSI open source license terms.

...which is preferable to you?  Which is more open?

> See http://www.opensource.org/docs/definition.php for how OSI defines Open
> Source Software.

Has it been your observation that people who refer to specific parts of 
the OSI definition by number haven't already read this?  :-)

-Chuck


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