Silly question: are usage restrictions covered by the OSD?

[Chuck Swiger]

On Thursday, October 16, 2003, at 02:20 PM, Brian Behlendorf wrote:
> On Thu, 16 Oct 2003, Chris F Clark wrote:
>> [ ... ]
>> However, in distinction, one can create non-open source software using
>> ones own IP.  Thus, that can be a field of endeavor.  Moreover, one
>> can use a different editor to create such software.  Thus, a usage
>> restriction on a particular editor, would prohibit its use in that
>> field of endeavor (which would otherwise be legal and thus a valid
>> field of endeavor).  And to my mind that contrvenes OSD #6.
>
> OK, this is an interesting theory, but it still rests on the assumption
> that "creating non-free software" is a "field of endeavor", which I'd
> dispute.

Creating software is a field of endeavor, surely, both in the personal 
sense-- people identify _themselves_ as being "programmers"-- and in 
the formal/legal sense that one's occupation listed on business cards, 
tax forms, and so forth describe people as being "software engineers", 
"developers", etc.

That being said, I agree with you, Brian, that programmers who create 
open-source software and programmers who create non-free software are 
members of one and the same field of endeavor.  Many programmers who 
write proprietary software contribute patches or bugfixes to 
open-source projects, and many people who write free software by choice 
end up working on closed, proprietary projects at least once in a while.


>> [ ...] That is, one must release an open source copy of the
>> derived work when one creates such a derived work, not only when one
>> distributes such a derived work.  (There are many details to work out,
>> which is why I have not submitted it for review.)
>>
>> I am hoping that such a restriction will not be considered
>> contravening the OSD, and that the license will become approved.
>
> Interesting twist.  For practical reasons I'd argue that a license 
> clause
> that is still triggered on distribution, but applies to all work, is 
> more
> likely to make sense than a license that is triggered upon the act of
> creation - after all, when is that creative act, is it as soon as you
> create a tarball, or is it once you've edited the file?  Are you going 
> to
> require public CVS trees for any derivative work?

People who are copyright lawyers focus on the circumstances of 
redistribution as being of paramount importance, and at least to some 
extent, the OSD reflects that viewpoint.  People who are not copyright 
lawyers tend to focus more on activities like using or modifying the 
software.

Restrictions on how people _use_ software, such as "you may only use my 
editor if you are writing open-source software", are more appropriately 
handled by end-user license agreements and contract law than by 
copyright law, at least if my understanding is correct.  Therefore, if 
the license that Chris has proposed does require active consent from 
the end-user in order to form a contract, it would fail OSD #10:

"10. License Must Be Technology-Neutral

No provision of the license may be predicated on any individual 
technology or style of interface.  Rationale: This provision is aimed 
specifically at licenses which require an explicit gesture of assent in 
order to establish a contract between licensor and licensee. [ ... ]"

-- 
-Chuck

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