Silly question: are usage restrictions covered by the OSD?

[Arnoud Engelfriet]

Rick Moen wrote:
> Quoting Chris F Clark (cfc at TheWorld.com):
> > Perhaps a clause of the OSD should read that "the license should not
> > discriminate against (or prohibit) any form of usage which is not
> > already proscribed by copyright law".  That would be a very strong
> > bound on what open source licenses can regulate.
> 
> A possibly silly question of my own:  If a particular form of usage is
> already proscribed by copyright law, then wouldn't it be pretty much
> pointless for a licence to "discriminate against or prohibit" it?  

Well, if the usage is normally reserved to the copyright holder,
an open source license could grant that right to all users. I
don't think that has anything to do with "discrimination".

> If so, then the clause "the license should not discriminate against (or
> prohibit) any form of usage" would seem functionally equivalent -- and
> shorter.

Why not simply say "The license shall not restrict any form
of usage of the software, as long as such usage does not
involve distribution of the software to third parties"?

That seems to correspond quite nicely to the FSF's freedom zero
("to use the program, for any purpose").

It has the side-effect that the ASP loophole is then officially
approved and cannot be closed. In other words, licenses like
the Affero Public License, the Apple Public License 2.0 or
the Open Software License 1.1 would no longer qualify as OSI approved.

Arnoud

-- 
Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
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