Silly question: are usage restrictions covered by the OSD?

[Rod Dixon, J.D., LL.M.]

: On Wed, 15 Oct 2003, Arnoud Engelfriet wrote:
: > This may be a silly question as I'm probably overlooking something,
: > but as far as I can tell the Open Source Definition does not
: > forbid any general restrictions on "usage" of software. The closest
: > thing is "No Discrimination Against Fields of Endeavor", but
: > that only forbids exclusion of _some types_ of usage, not exclusions
: > on usage by everyone.
: >
: > Would something like "You may only use this editor if you release
: > all works you create with it as open source software" fail under
: > OSD #6, and if not, why would it fail the OSD?
:
: I would argue that your clause (you may only use this editor if ...)
: fails OSD #6, because it prohibits the field of endeavor "creating
: non-open source software".

What makes compliance with some of the OSD articles sometimes difficult, I
think, are instances where the issue is framed outside of the more
restrictive bounds of copyright interests. OSD 6 is one example and,
perhaps, that is why it may be a good idea to revise it as Larry is
proposing.

When it comes to copyright, I think the term "use," which lacks precision,
can create tricky problems. It is probably fine to use the word "use," but
it helps to keep in mind what "use" may mean. When I read "use" in a
copyright license I assume the license authorizes or restricts others to do
one of the following copyright interests: [1] To reproduce the work in
copies, [2] To prepare derivative works, [3] To publicly distribute copies,
[4] To perform the work publicly, [5] To publicly display the work or [6]
(in the case of digital sound recordings, to perform the work publicly by
means of a digital audio transmission). If a "use" does not fit within the
aforementioned, it is likely to be outside of the scope of copyright (but
not always), which creates difficulty and complexity for a copyright license
in my opinion. On the other hand, if  what is meant by "use" is within the
scope of the aforementioned, then the license ought to use the specific
terms rather than the generic word "use."


Regarding OSD 6 and the clause "you may only use this editor if," the
problem is one of draftmanship. This is why lawyers are paid well. The
provision, as written, is inconsistent with OSD 6, but, if it or a similar
license were re-written in terms of copyright...you are quite likely to
accomplish your goal. BTW, I am not offering legal advice, nor am I
specifically refering to the licensor's example.

As the question below suggests, the GPL accomplishes a similar task (in
terms of imposing a subtle "field" restriction), but it does so by reference
to copyright interests. The GPL's language AND structure reinforce its
meaning. I am not sure why some license drafters try to avoid the GPL when
the GPL actually does what they want to accomplish, which is not to say that
the GPL always is best.


: The question that this does not address is how your restriction
: differs from the restriction in the GPL, (you may only create a
: derived work from this software if ...).  That would also seem to
: prohibit the same field of endevour. However, the chief distinction is
: that concept of derived work.  There is no field of endeavor of
: creating derived works from software that you are not the author of
: unless the author grants you that right.  (This is one of the authors
: reserved rights under most theories of IP.)  That is, without
: permission to create a derived work, one cannot create derived works
: at all, and thus it cannot be a field of endeavor.
:

I think this is at least partially correct. The GPL uses the copyright
holders right to control the creation of derived works as well as the right
to control public distribution of works to accomplish a similar goal.

-Rod


Rod Dixon,
Blog: http://opensource.cyberspaces.org


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