Are implicit dual-licensing agreements inherently anti-open?

[Alex Bligh]

Andrew,


--On 19 July 2005 16:32 -0700 "Wilson, Andrew" <andrew.wilson at intel.com> 
wrote:

>
> Alex Bligh wrote:
>
>
>>> One might then well ask, are Joe and Jane Engineer, employees of
>>> a typical large corporation who have downloaded some OVPL code,
>>> authorized to enter into a contract on behalf of their employer?
>>> Of course, the answer is usually no.
>>
>> Powers of agency and ostensible authority are no doubt interesting
>> areas of law. However, I fail to see why the question is different
>> here from (say) under the CDDL where a contributor makes a license
>> to the code they contribute available to others ("You") under section
> 2.
>> What if Joe and Jane, as engineers, do not have authority to do that?
>> Same under (say) GPL.
>
> Joe and Jane do not need contractual authority to use executables
> based on GPL'd code, because GPL explicitly disavows being a contract
> ("You are not required to accept this License, since you have not signed
> it.")

They do not need CONTRACTUAL authority under the GPL, but they do
under (say) the OSL (which is specifically a contract).

However, my point is not about CONTRACTUAL authority only, it is about
authority in general. Authority is wider than ability to enter into
a contract - licensing is not a special case - think about (say)
representations, negligence, etc.

Note the OVPL isn't a contract here.

> Now look at Joe and Jane attempting to use executables based
> on OVPL'd code.  As I read
> OVPL, use of such executables requires agreeing to sec. 3 of the
> license.  Section 3,
> among other things, purports to create a bi-lateral business
> relationship
> between Joe and Jane (or is it their employer?) and the ID, in which the
> ID
> is granted what is effectively right of first refusal to any
> modifications.
> This bi-lateral business relationship looks suspiciously like a
> contract, yet Joe and Jane (or their employer?) haven't signed anything
> here, either.


Nothing in the OVPL creates a "bilateral business relationship" in a
contractual sense. 3.3 merely creates a copyright grant and a patent grant.
Just like 2. Joe and Jane do not need to agree (in the sense of contract)
anything in business terms. All they need to do, if they are to make lawful
use of the intellectual property concerned, is comply with the conditions
of the grant to them.

The licensee's permission to use/modify/distribute the Covered Software is
dependent upon certain factors - it is a conditional license. It is thus
exactly the same as the GPL and CDDL (and indeed MPL and just about every
other reciprocal license without contractual form, i.e. except the OSL).

The differences are only in what the conditions are. In the GPL, it is
conditional upon a simple copyright grant. In the CDDL it is conditional
upon a copyright grant and a patent grant. In the OVPL it is conditional on
PAIR of copyright grants and patent grants. There is no essential different
between these things.

This is the very essence of a conditional license. Now, Larry Rosen
argues in his book there are problems with the enforceability of
what he terms "bare licenses" (ones not phrased as contracts). I'm
not going to repeat all what he's said, it's on pages 53 to 66 of his
book ("Open Source Licensing"), I don't necessarily agree with all
of it, but it's certainly well argued. I will quote one bit:
	"The argument goes like this: Since those exclusive rights [in the
	copyright owner's work] cannot bee exercised without the permission
	of the copyright owner, a licensee must either obey the terms of
	the license or not exercise the rights".
He goes on to point out that this is covered by Copyright Title 17 of the
US Code, and Patent Act Title 35.

However, if your point is that bare licenses are unenforceable, the OVPL is
a bare license, and thus should not be approved, my counterargument is that
ALL current reciprocal licenses (except the OSL) are bare licenses - so
it's enforceability on this ground is no worse than the GPL, MPL, CDDL etc.

This is an entirely separate point from the one about authority (is it Joe
or Jane, or their employer who is the licensee - i.e. "You" - within the
license). Again, identical considerations apply to ALL other open source
licenses (with the possible exception of the OSL if you want to argue that
in some jurisdictions agency and ostensible authority work differently when
applied to contract, which for all I know may be the case) - the point is,
the OVPL is no different here.

It may be that I am misunderstanding your argument here. Perhaps you
could help me out by setting out
a) why you believe the OVPL relies on contractual agreement (or in your
   words "looks suspiciously like a contract) whereas other
   reciprocal licenses (other than the OSL) do not have the same problem
   (take CDDL as the example, as that's closest); and
b) why you believe that agency/authority issues (i.e. the Joe and Jane
   vs. their employer distinction) is a differently problematic in the
   OVPL from other bare reciprocal licenses (i.e. not the OSL).



> And no, other reciprocal licenses, e.g. GPL and MPL, do not have this
> problem, because they are offers to license to the world at large on
> fixed
> terms, not a contract between a contributor and
> the ID disguised as a license.

The OVPL is equally an offer to license to the world at large on
fixed terms. Your argument is circular (or so it seems to me). You
have said it is a contract disguised as a license and so is ineffective.
Hence it must be a contract. I'm afraid this makes no sense at all to
me.

Alex