Definition of open source

Sun Nov 7 22:02:04 UTC 2004

Quoting James Harrell (jharrell at copernicusllc.com):
                                ^^^^^^^^^^^^^^^^^

> Unfortunately I doubt that the OS Definition is up for debate or
> revision. OS is like religion and politics <grin>. Every side is
> "right" because it is a belief and point of view, not a science. So
> perhaps the time has come to for a collaborative new organization for
> Commercial Open Source?

On reflection:

I smell a second rat in this conversation, and its name is Copernicus
Business Systems, LLC, http://www.copernicusllc.com/  Here is what this
company, of which Mr. Harrell turns out to be CEO and VP of Operations,
deceptively proclaims on http://www.copernicusllc.com/products/source/
to be an "open source" licence.  (This is the LICENSE.txt from the Oct.
13, 2004 release of the Miva Script Binary Utilities package.)

So, Mr. Harrell, your firm aspires to the same parasitic relationship to
genuine open source that Mr. Rihm's does, eh?

			CORPORATE END USER LICENSE AGREEMENT

YOU SHOULD CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO USING THE SOFTWARE.  USE OF THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS.  COPERNICUS BUSINESS SYSTEMS, LLC ("LICENSOR") IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY IF YOU ACCEPT THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.  IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, ERASE ALL COPIES OF THE SOFTWARE, DOCUMENTATION AND ALL OTHER COMPONENTS OF THE SOFTWARE FROM YOUR COMPUTER’S MEMORY AND CERTIFY TO LICENSOR THAT YOU HAVE DONE SO WITHIN SEVEN (7) DAYS OF DOWNLOADING THE SOFTWARE.  

1.  Grant of License.  Licensor hereby grants to you ("Customer") a non-exclusive, non-transferable license to use the Software solely in accordance with the terms of this Agreement.  For the purposes of this Agreement, "Software" means the software programs and documentation accompanying this Agreement and any online documentation. This Agreement permits Customer to compile and use one copy of the Software.  Customer may make one copy of the Software for archival and backup purposes.  Customer must reproduce and include any copyright and trademark notices, legends and logos on each copy of the Software or diskettes made by Customer. The Software is protected by copyright laws and international copyright treaties and other laws regarding trade secrets and other intellectual property rights.   Title and full ownership rights to  the Software and any and all copies of the Software remain with Licensor.

2.  Use of Software.  The Software may be used only for, by, and on behalf of Customer.  Customer may not transfer any of its rights hereunder. 
IN NO EVENT MAY CUSTOMER TRANSFER THE SOFTWARE TO ANY PERSON, ENTITY OR OTHER END USER IN VIOLATION OF APPLICABLE U.S. EXPORT LAW, INCLUDING, BUT NOT LIMITED TO, ANY TRANSFER FOR USE OUTSIDE THE COUNTRY IN WHICH IT WAS ORIGINALLY LICENSED.

3.  Term and Termination.  This Agreement may be terminated by mutual consent, or by election of either Customer or Licensor in case of the other’s unremedied material breach.  In case of any termination of this Agreement, Customer will immediately return to Licensor all the Software components that Customer has obtained from Licensor and any copies in Customer’s possession, and will certify in writing that all such components and all copies of the Software have been returned or destroyed, and all copies erased from the memory of Customer’s computers.

4.  Disclaimer of Warranties.  

4.1	Licensor does not warrant that the functions contained in the Software will meet Customer’s requirements or that the operation of the Software will be error free. The Software is licensed on an "AS IS" basis.  The entire risk as to the quality and performance of the Software is solely with Customer.

4.2	NO OTHER WARRANTIES, EXPRESS OR IMPLIED ARE MADE WITH RESPECT TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THIS EXCLUSION MAY NOT APPLY TO YOU.

4.3	YOU UNDERSTAND THAT THE SOFTWARE WAS DESIGNED TO SUPPLEMENT SOFTWARE AND/OR OTHER PRODUCTS PRODUCED AND/OR PROVIDED BY MIVA CORPORATION AND MYSQL AB.  LICENSOR DOES NOT ENDORSE AND IS NOT AFFILIATED WITH MIVA CORPORATION OR MYSQL AB, AND DOES NOT CONTROL MIVA OR MYSQL PRODUCTS.  LICENSOR IS NOT RESPONSIBLE OR LIABLE FOR ANY UPGRADES, UPDATES, ENHANCEMENTS OR FUTURE RELEASES OF MIVA CORPORATION OR MYSQL AB SOFTWARE OR PRODUCTS THAT MAY BE INCOMPATIBLE WITH THE SOFTWARE OR RENDER THE SOFTWARE INEFFECTIVE.  LICENSOR DOES NOT WARRANT THAT THE SOFTWARE WILL WORK EFFECTIVELY WITH ANY UPGRADES, UPDATES, ENHANCEMENTS OR FUTURE RELEASES OF MIVA CORPORATION OR MYSQL AB SOFTWARE OR OTHER PRODUCTS. 

5.  Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF EITHER CUSTOMER OR A THIRD PARTY AGAINST CUSTOMER (INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR INFORMATION, LOST PROFITS, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT SHALL LICENSOR BE LIABLE FOR DAMAGES FOR ANY CAUSE WHATSOEVER (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) IN EXCESS OF THE AMOUNT PAID TO LICENSOR BY CUSTOMER FOR USE OF THE SOFTWARE.  SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

6.  Other Restrictions and Limitations.  Customer agrees that (1) it will not copy the Software except as permitted in Section 1; (2) it will not reproduce, deactivate, or bypass any security device supplied with the Software; (3) it will preserve and respect Licensor’s copyright and the notice of copyright included in the Software; (4) the Software contains information which is confidential and proprietary to Licensor, and Customer will not disclose or transfer or otherwise provide to any third party all or any part of the Software without the express written consent of Licensor; (5) it will not disassemble, reverse compile or reverse engineer the Software or any portion thereof or otherwise attempt to discover the source code or structural framework of the Software; (6) it will not rent or lease the Software; and (7) it will not modify the Software.

7.  Breach.  Customer will be deemed to be in breach of this Agreement if Customer violates any covenants or obligations imposed on it under this Agreement.

8.  License by U.S. Government. The Software is provided with RESTRICTED RIGHTS.  Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in 48 CFR 52.227-14 (g)(3)(ii) as applicable.  Contractor/Manufacturer is Copernicus Business Systems, LLC, 167 Maribeau Square, Atlanta, GA 30327.

9.  General Terms and Conditions.  The terms and conditions of any purchase order or other ordering document issued by Customer in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement shall not be binding on Licensor and shall not be deemed to modify this Agreement. This Agreement constitutes and expresses the entire agreement and understanding between the parties in reference to all matters referred to herein and any and all previous agreements, discussions, promises, representations, and understandings between the parties relative thereto are merged herein and superceded hereby.  The remedies provided in Section 3 shall be cumulative and additional to any other remedies in law or equity which Licensor may have.  This Agreement shall be governed by the laws of the State of Georgia and shall inure to the benefit of Licensor, its successors, and assigns.  The sole jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal court in the Northern District of Georgia or a state court located in the Northern District of Georgia. Customer hereby consents to personal jurisdiction in such courts. Sections 4, 5, 6, 8 and 9 shall survive any termination of this Agreement.  All rights not specifically granted herein are reserved by Licensor.