ASP use (was Re: Copy-Back License draft for discussion)

Alex Bligh alex at
Tue Apr 26 11:01:59 UTC 2005

--On 25 April 2005 15:05 -0700 Bruce Perens <bruce at> wrote:

>> The phrase "distribute" in the OVPL is followed by "make otherwise
>> available" which I take to include ASP deployment.
> I don't think your language is adequate for that. It sounds as if you
> are missing the difference between making the text of a work available
> to others, which is why copyright law would apply, and performance of
> the work. Public performance is a separate right under copyright law,
> but is explicitly defined in the U.S. copyright title to only apply to
> certain kinds of work: plays, audio recordings, but not software. But
> you didn't even say "perform" or "use".

This is language straight out the CDDL - not my own - (which doesn't mean
I'm not concerned to fix it, but we are trying to change as little as
possible). The context here is that (for instance) Section 2 of both the
CDDL and the OVPL only grant a license to:
	"to use, reproduce, modify, display, perform, sublicense and
IF section 3 is complied with, which includes Section 3.1.

This section of both the CDDL and the OVPL provides that:
	"Any Covered Software that You distribute or *otherwise make
	available* in Executable form must also be made available in Source
	Code form and that Source Code form must be distributed only under
	the terms of this License."

So the license to distribute OR perform is CONDITIONAL upon the provision
of source code if the Covered Software is distributed or "otherwise
made available".

At per:
Sun's lawyers say:
	Wherever software distribution is mentioned, added the phrase "or
	otherwise makes available" to cover passive types of distribution,
	such as with ASPs.

Whilst the OSL (for instance) is more specific on the question (with
its reference to "External Deployment") I'd be interested to hear why
you think the CDDL/OVPL clause doesn't currently do the job. That's
because they simply aren't granted the right to use, perform, distribute
etc. if they "make the software otherwise available" (which I would
have thought would cover ASP use) and do not provide the software in
source code form etc.


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