OSL 2.1 for textbooks

[Sanjoy Mahajan]

I've been looking for freebook license for my physics textbook that will
be published by a regular publisher.  An old draft is at
<http://www.inference.phy.cam.ac.uk/sanjoy/book/>.  I had planned to use
the GNU FDL, but the cogent debian-legal statement at
<http://people.debian.org/%7Esrivasta/Position_Statement.xhtml>
convinced me to rethink, especially the objections to invariant sections
and front- and back-cover texts -- although I can see why the FSF put in
those features.  Document licensing is complex.

The OSL 2.1 is elegantly drafted and solves many problems, but here are
a few concerns about its use for documents, a less worked-out use than
for software.  Eventually I will consult a lawyer for my particular use,
but comments from the collective wisdom of the list will be greatly
appreciated as I think through these issues: to the list or to me
directly, and I can summarize to the list.

- Para 1.  The license grant requires source only for distribution, not
  for displays.  Could a licensee put the pdf file (the executable) on a
  website, call it a display [para 1(d)] rather than a distribution, and
  thereby not have to provide source?

- Para 3.  If a teacher wants to photocopy a chapter for his or her
  class, either from the full printed book or from the pdf file, does
  the teacher have to provide source?  A single chapter (as an
  abridgement) is a derivative work, so the reciprocity provision of
  para 1(c) applies when its distributed.  Or can the teacher just refer
  recipients to the source location given in the full work?

  Which leads to a related concern.  What if the original publisher goes
  out of business or takes the work out of print and stops hosting the
  source?  Fair enough since they no longer distribute it.  When a
  teacher wants to distribute photocopies, does he or she have to cross
  out the source location and write in his or her own location with a
  copy of that same source?  Perhaps yes, and perhaps it's a good thing.

- Paras 4, 6.  Does the strict trademark exclusion for derivative works
  conflict with giving attribution?  E.g. If a book is published by
  SomeBigPublisher and they grab the copyright (in exchange for agreeing
  to publish under the free license), then the copyright notice in their
  name, which para 6 requires retention of in the source code, might
  also be a trademark whose use could endorse of the derived work --
  contrary to the trademark exclusion.

- Para 6.  Are licensees required to place copyright and licensing
  notices on their derivatives of the printed book?  I hope so but am
  not sure.  The license begins with:

    This Open Software License (the "License") applies to any original work
    of authorship (the "Original Work") whose owner (the "Licensor") has
    placed the following notice immediately following the copyright notice
    for the Original Work:

      Licensed under the Open Software License version 2.1

  However, the converse is not required.  In other words, a work may be
  licensed under the OSL -- say, because of the reciprocity requirement
  in para 1(c) -- but the licensee is not thereby required to place a
  licensing statement after the print copyright (though the statement
  will be in the provided source code).

  This concern might be illusory: The licensee must distribute the
  source with the book, e.g. include a CDROM with the TeX and figure
  files or give a URL to them, so the recipient will notice that
  *something* about the book is not like other books and might even see
  the license in the source code.

  The GNU FDL, in para 4(M), requires that an Endorsement section be
  deleted in a modified version.  That requirement seems sound although
  maybe overkill: e.g. if someone adds color figures, almost no endorser
  would object to retaining the endorsement in the new version (unless
  the endorsement said "Beautiful retro line art").  Hidden among the
  clauses of the OSL, or in common legal understanding, is there a mild
  form of the GNU FDL endorsement-deletion requirement?

- Para 9.  How do you get express assent and consideration to bind the
  contract when a book is purchased in a bookstore or from an online
  retailer such as Amazon?  Is paying for the book enough consideration?
  Or do you have to also offer a full refund if a buyer rejects the
  (adhesion) contract?  A feature that many booksellers might not be
  happy about or agree to provide.

  Will getting assent and consideration interfere with, for example,
  distributed development?  Someone cannot checkout the source from a
  remote repository until they click on a license acceptance.  This
  isn't such a problem with mozilla, which also has a contract-based
  license, since it comes from one repository and they can design the
  download system to include license assent.  But for general
  development, people may want to have their own repositories and allow
  downloads via arch, cvs, monotone, etc.

  Physicists often place their papers on the arXiv preprint server
  <http://arxiv.org> by placing the TeX/LaTeX source from which the
  postscript or pdf file is generated.  I would do the same with the
  textbook, except that I don't control the click-wraps that arXiv
  offers when you download source (as of now, I don't think there are
  any).  The arXiv admins would have an administrative and legal
  nightmare if every document had its own license requiring assent
  (they'd have to make sure that each license was compatible with their
  own distribution policies, for example).

  The Debian free software guidelines include a dissident test
  (<http://people.debian.org/%7Ebap/dfsg-faq.html>, answer 9b).  Does
  requiring assent fail the test?

- Para 11.  Can or should one exclude the UN convention for sale of
  goods when the executable is a physical object, a book, rather than a
  program?

And a trivial one:

- Para 1.  The HTML at <www.opensource.org/licenses/osl-2.1.php>
  contains <UL TYPE="a"> ... </UL> which renders correctly as (a), (b),
  ... in linux Firefox.  Lynx, which is stricter about HTML, replaces
  the item tags with stars.  The HTML should be <OL TYPE="a"> ... </OL>

-Sanjoy

`A society of sheep must in time beget a government of wolves.'
   - Bertrand de Jouvenal