On the licensing terms of the open source licenses text

Sun Jul 11 00:59:26 UTC 2004

Larry & Philippe - my take on this issue is that it is not a good idea to
copy an open source license, if the author of the license text explicitly
withholds permission.  On the other hand, I have always assumed that the
claim to copyright in an open source license text is both ironic and
debatable. 

The irony arises from the fact that open source licenses not only are often
(nearly always) are intended to be distributed by those who are not the
purported author (the license often "travels" with the copy of the work),
but the practice of posting approved open source liscenses on opensource.org
connotes that the text may be used by others. Granted, these practices may
not disrupt an author's rights, but it is an ironic position.

The debatable aspect arises from the fact that by the nature of the special
class or type of software license, most open source license texts are
necessarily derivative of a preexisting free/open source license (except,
perhaps, the first one or two original licenses). 

Few (if any) are going to draft an open source license without studying a
preexisting license very closely. In addition, if there are terms-of-art,
you will wisely likely want to use those terms rather than creating your
own.  Consequently, the copyright in most open source license texts is more
illusion than real. Even so, this should not mean that you should copy a
license text, change a few terms, claim it as your own, but identify it as
the OSL, GPL, or whatever. As has been noted on this list often, the way you
use a preexisting open source license as a template for your own use should
be done with careful planning.

-Rod

-----Original Message-----
From: Lawrence Rosen [mailto:lrosen at rosenlaw.com] 
Sent: Friday, July 09, 2004 7:08 PM
To: 'Philippe Ombredanne'
Cc: license-discuss at opensource.org
Subject: RE: On the licensing terms of the open source licenses text

Philippe Ombredanne wrote:
> So the questions are:
> How can I reuse the text of a license like the OSL to create a new
> license?
> Is this licensed under the OSL?
> Or restricted to Larry's terms?
> 
> Can I create a new license, for instance the nexB public license, based
> on the text of the OSL, or other license text but with every reference
> to the OSL removed, except for copyright attributions, creating a
> derivative work of the license text?
> 
> And if I use an existing OSI approved license as a base, would I need to
> go through the full legal commentary to submit it for approval? (BTW, I
> know this was debated in the past, but did not find any conclusion on
> the topic.
> 
> --
> Cheers
> Philippe

Cheers, indeed! :-)

I'm looking forward to hearing the discussion. I certainly don't want to be
like some power-grabbing monopolist who claims more intellectual property
rights than the law allows. What part, after all, of my license is
copyrightable subject matter? Everything? We've made copyright so expansive
that I expect to see such notices on graffiti soon.

/Larry

Lawrence Rosen 
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
General counsel, Open Source Initiative (www.opensource.org) 
3001 King Ranch Road, Ukiah, CA 95482 
707-485-1242 * fax: 707-485-1243 
email: lrosen at rosenlaw.com 

> -----Original Message-----
> From: Philippe Ombredanne [mailto:pombredanne at nexb.com]
> Sent: Friday, July 09, 2004 11:02 AM
> To: license-discuss at opensource.org
> Subject: On the licensing terms of the open source licenses text
> 
> Dear licenses enthusiasts,
> I have a question about the licenses of the text of the licenses
> themselves.
> Very specifically, I wanted to create our own license, based on the OSL,
> but I am taking the OSL here as an example.
> And taking the OSL as example gives definitely a recursive feel to the
> topic...
> 
> The OSL and many other licenses have fine prints like that:
> > "This license is Copyright (C) 2003-2004 Lawrence E. Rosen.
> > All rights reserved. Permission is hereby granted to copy and
> > distribute this license without modification. This license may
> > not be modified without the express written permission of its
> > copyright owner."
> This obviously restricts the reuse of the license text in other
> licenses.
> 
> On the other hand, every web page on opensource.org has the following
> footer:
> > "Copyright C 2004 by the Open Source Initiative
> > The contents of this website are licensed under the
> > Open Software License 2.1 or Academic Free License 2.1"
> This could be construed as making the text of the licenses available
> under the OSL.
> 
> So the questions are:
> How can I reuse the text of a license like the OSL to create a new
> license?
> Is this licensed under the OSL?
> Or restricted to Larry's terms?
> 
> Can I create a new license, for instance the nexB public license, based
> on the text of the OSL, or other license text but with every reference
> to the OSL removed, except for copyright attributions, creating a
> derivative work of the license text?
> 
> And if I use an existing OSI approved license as a base, would I need to
> go through the full legal commentary to submit it for approval? (BTW, I
> know this was debated in the past, but did not find any conclusion on
> the topic.
> 
> --
> Cheers
> Philippe
> 
> philippe ombredanne | nexB - Open IT Asset Management
> 1 650 799 0949 | pombredanne at nexb.com
> http://www.nexb.com
> 
> 
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

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