For approval: ENCUL

[Mark Rafn]

On Fri, 23 May 2003, Chuck Swiger wrote:

> for the sake of discussion: would software under any closed license (or
> not available at all, aka "unplublished trade secret"), which includes
> acondition where the software reverts to a BSD license after a
> well-defined time, be OSI open source?

I believe not.  After that time has elapsed, it may be.  It gets a bit
confusing when thinking about derived works or later releases, and whether
the timer can be reset.

> >>* 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. 

My comment was intended to be more specific, sorry to be unclear.  I'm not
against selection of jurisdiction per-se, just this particular wording.  
I've seen many choice-of-venue clauses, and I believe OSI approves
licenses containing such clauses.  

This is the first time I've ever seen a license that doesn't specify the
jurisdiction up front or leave it unstated, but simply allows the licensor
to use whatever his home court is when a dispute arises.

It sounds like that's not your intent, and you mean to specify the 
jurisdiction in advance for each use of this license.  This could be made 
MUCH clearer in the license.

Anyway, I have no idea if this is a real problem or not - it just struck 
me as odd.

> 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.

It's highly doubtful that inclusion of this clause in your license will 
have ANY effect on whether the RIAA chooses to pursue contributory 
infringement action agaist you.  You can, to some extent, choose the 
jurisdiction under which you may sue infringers of your copyright, but 
that's the limit of what's possible.

> 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.

I think this is false.  Absent a contract (which some claim a shrink-wrap
"EULA" is), I do not need copyright permission to use legally-acquired
software in any way I choose.  I don't have the right to distribute or
create derived works, but use is simply not restricted by copyright law.

> 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.

Restricting use requires a contract.  Copying and distributing/selling are
restricted by copyright, and can only be done if the license grants 
permission.

> 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.

That wasn't clear from my reading of the license, but good.

> > 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?

It starts with "Redistribution and use in source and binary forms, with or 
without modification, are permitted".

> 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?

B is preferable if the software has any value X years later (and it likely
will).  Of course, people will remind the author of his promise if this is
true.  I would not recommend giving up license clarity to achieve this
aim, however.  Also, I would not expect any of the benefits of open source
software in the meantime (inlcuding PR benefits).

Another way to approach this might be for you to dual-license the 
software.  Pick whatever proprietary license you want to use now, and add 
a notice in your copyright statement that after 23 May 3008 that 
recipients may use the BSD license.

This keeps both the proprietary and the open-source future license very 
clear.
--
Mark Rafn    dagon at dagon.net    <http://www.dagon.net/>  
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3