Silly question: are usage restrictions covered by the OSD?

[Chuck Swiger]

On Friday, October 17, 2003, at 02:18 PM, Brian Behlendorf wrote:
> On Fri, 17 Oct 2003, Chuck Swiger wrote:
>> "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. [ ... ]"
>
> It's curious how far apart the wording of #10 and its rationale are.

Agreed.  Some people have suggested that the intent of OSD #10 is not 
to forbid licenses from obtaining consent, but to make sure that the 
mechanism for obtaining consent does not impede activities like 
SourceForge and automated package-building systems (portbld & bento 
under FreeBSD, fink for Darwin, RPMs for some flavors of Linux, etc).

> At any rate, it's been said by lawyers on this list that licenses like 
> the
> GPL would probably be evaluated as contracts by a judge, not just as
> copyright licenses.

Yes.  Of course, the GPL itself states:

"Activities other than copying, distribution and modification are not
covered by this License; they are outside its scope.  The act of
running the Program is not restricted, and the output from the Program
is covered only if its contents constitute a work based on the
Program (independent of having been made by running the Program).
Whether that is true depends on what the Program does."

...and that consent to the GPL is implied by the act of redistributing 
a GPL'ed work per section 5.  In contrast to the type of usage 
restriction that Chris was proposing, the GPL makes no attempt to 
prevent a user of Emacs from using that editor to produce proprietary 
software, and I think that is as it should be, at least in general.

> Many open source licenses contain provisions that
> affect use - the patent termination clause in the APSL, for example
> (paraphrased, your right to *use* APSL software is gone if you file a
> patent claim against Apple).

True.  For that claim to be meaningfully enforcable, however, doesn't 
it require the user to have signed or otherwise agreed to the APSL?  I 
remember that when the Darwin project was first starting up, the Darwin 
sources were made publicly available by an Apple employee on the MIT 
Athena/AFS cell _without_ requiring people to agree with the APSL in 
order to access those sources.

Ernie, please correct me if I misspeak, but I believe that person made 
the case with the powers-that-be at Apple's management that "open 
sourcing" Darwin should mean just that, and that existing copyright 
provisions governing redistribution would be adequate to protect 
Apple's legitimate concerns and interests in much the same fashion that 
GPL #5 does.

> There have been long threads on this list in
> days past regarding whether open source authors *should* be seeking 
> assent
> before allowing their software to be downloaded, or at least before 
> use -
> some claim it would make our licenses that much less vulnerable to 
> being
> ignored by the user or mooted by a court, if I'm capturing the 
> discussion
> accurately.

I think that there is little question that if a license provision is of 
a nature to require assent from the user, that obtaining their consent 
via a contract would represent a much stronger position.

However, like Wilfredo Sanchez, I believe that "open source" should 
mean just that-- the source code is publicly open and freely available 
to everyone to at least examine and submit or publish changes as they 
wish without requiring a contract, click-wrap EULA, or other such 
agreement.  Restrictions on how software may be used are onerous, but 
if the author feels such restrictions are necessary, the author's 
reasons ought to be explicitly stated and the restrictions imposed 
ought to be justified, specific, and narrow in scope.

-- 
-Chuck

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