Cubit Business management software - licensing

Thu Jul 21 04:38:56 UTC 2005

Please read the OSD:

    http://www.opensource.org/docs/definition.php

You're violating several requirements.

You're also IMO needlessly contributing to license proliferation.  And
your license shows several characteristics which would lead me to
suggest not approving it in any regard.

    http://www.opensource.org/docs/policy/licenseproliferation.php

on Mon, Jun 13, 2005 at 10:07:48AM +0200, andre (andre at cubit.co.za) wrote:
> Backround :
> 
> Cubit started development in 2001 (will be five years old in a few
> months) It is a stable, mature, application and imho will be a win for
> the world (as it is also semi OS platform independant and there are
> thousands of php programmers) Cubuit has also been developed by
> multiple PHP coders over the past years in South Africa.
> 
> It is a PHP (plaintext) web browser based application with all it's
> modules it is around 1 500 000 lines of code.  (excl whitespace) It is
> running at thousands of sites in south africa and has many very happy
> and satisfied clients (users)

Fine and good but not particularly relevant to licensing.

...other than noting that PHP may impact licensing models (coëxisting
with other licensing bases), and that with a widespread product, you'll
probably want a fairly standard license.

> I have studied the mozilla public license and various others. Have
> also read the release about license proliferation.
> 
> We do want to release our code as open source and not the current
> hybrid license as this causes great confusion in our country. I have
> some serious concerns however and will not at this point be able to
> use another license?  (can someone direct me to v3 of the gpl ? It has
> been suggested by an expert that this license may work?)

It hasn't been released yet.  There are discussions of what it may
contain, and I believe drafts are in circulation.

It's been under developent for at least the past seven years, so don't
hold your breath.

> We have no software patent legislation in South Africa, and are indeed
> many years away from such attempted legislation. I have been
> programming for the past 26 years and could show prior art and defend
> myself quite nicely in my own country. 

Few of the mainstream (GPL/LGPL, MIT, BSD) licenses address patent
licensing directly, though the GPL discusses patent impacts.  There's a
generally understanding that you can't impose restrictions on
third-party code you're modifying / distributing / copying yourself,
under the GPL.  Several of the MozPL-style licenses discuss patents.

> We cannot accept California or Europe or another countries legal
> jurisdiction. 

As a practical matter (and some of the lawyers present may straighten me
out on this), if you're using the GPL, and a determination is made that
use *isn't* under terms of the GPL, you're no longer in a licensing
dispute, but in a copyright dispute.  Which presumably you'd deal with
under your local copyright statute.

The GPL doesn't specify jurisdiction for disputes.  Some might see this
as a feature.

> Also I do not want anyone to compile my code, php is executed as
> source code.

That would violate #3, "Derived Works".  Compiled code is a derived work
of the original work.

> I have the following license (which imho complies with the definition)
> would like to unfortunately add to the proliferation of licenses
> (is this a bad thing?) and would really appreciate someone else's input, 
> assistance, flames, critique etc. thanks in advance for reading the
> license at the end of this email.
> 
> Kindest Regards
> 
> 
> Andre Coetzee
> 
> 
> I would like comments before submitting the following license :

"OK" indicates I don't see any glaring problems.  Which doesn't say they
may not exist.

> Open Cubit License 3.0
> Definitions:
> 1.???License??? means the open Cubit license, this license

What's with the '???' characters?  Standard ASCII please.

> 2.???Developer??? means anyone contributing to Cubit in any way

This language suggests your license is *not* being drafted by a lawyer
or anyone with significant legal background.

I'd be inclined to reject this license (if I had a voice on the matter,
I don't), on these grounds alone:  the license isn't particularly
legally rigorous.

> 3.???Cubit??? means the entire distribution, including all files,
> databases, source code, graphics, the name ???Cubit???, all systems,
> work flows, methods of operation and processes and any or all
> intellectual property implied or included in the Cubit Accounting and
> Business management software suite distributed or released in any
> fashion through any medium whatsoever.  4.???Distribution??? means any
> distribution of Cubit, making available thereof electronic or
> otherwise

This violates #8:  the license is specific to a product.

> 5.???Cubit Software Originator??? means Cubit Accounting Software
> (Pty) Ltd. Or it's in writing appointed agents

s/it's/its/

Can't hire a grammarian either.... 

> 6.???Modification??? or ???Modify??? means any customisation,
> addition, inclusion of files, deletion or by omission, modification of
> the contents of any Cubit file or graphic or the addition to any file
> in any way shape or form to Cubit

That's repetitive and redundant, but apparently same hasn't killed any
lawyers yet....

> 7.???You??? means an individual or legal entity to which this license
> or future versions of this license applies 

> 8. References to the singular also means the plural and specific
> gender references automatically includes the  other gender

> License Core:
> The Cubit Software Originator grants you a royalty free, non-exclusive 
> license, subject to third party intellectual property claims, to: 
> Use, reproduce, modify and distribute Cubit freely.

Again, you're specific to a product.  Violates OSD #8.

> Each developer grants you, subject to third party intellectual property 
> claims, a non-exclusive license to:
> Use, reproduce, modify and distribute the modifications created by the 
> developer.

OK.

> Any modifications to Cubit is governed by the terms of this license.
> Cubit is executed as source code and you may never compile, obscure or
> cause to obscure Cubit. You may not move this license or the top left
> Cubit graphic and link or the name Cubit from any Cubit file.

Violates OSD #3.

> General distribution:
> Any modification must be made available under the terms of this license to 
> anyone that requests it 

This is an unusually broad disclosure obligation.  While you're free to
make it from a legal standpoint, and it doesn't violate the OSD, it
*does* run contrary to some standards of FSF Free Software and tests
used by some groups, such as Debian's "Desert Island" test:  how would I
distribute my modifications to any third party if I were stuck on a
desert island?

See:

     http://wiki.debian.net/?DesertIslandTest

More usually, source disclosure obligations become operational *only*
when other distributions of the software are made.  The notable
exception is GPL v3 which will probably require source disclosure for
public performance of the work (e.g.:  use of the work within a website
or remotely accessible system architecture).

> and if such modification is not made freely available on the
> www.cubit.co.za website transparently and to the world then you have
> to make such modification available at your own financial cost for at
> least 48 months after it became available or was created whichever
> happened last.  You have to inform the world on the www.cubit.co.za
> website that you have made such modification and document any
> modification or make such documentation available on request.  

Not a violation of OSD, but runs afoul of the Debian Dissident Test:

    Imagine for a second the case of a political dissident in an
    oppressive nation who uses anonymous email to send quick snippets to
    news agencies in the rest of the world. He's discovered a security
    problem in Mixmaster and wants to share the fixed version with his
    buddies via sneakernet. He's using a bunch of extremely slow and
    expensive throwaway wireless and dialup links, and every time he keys
    up to transmit he risks revealing his location. As a result, he must
    keep transmissions very short and leave the area immediately
    afterwards. Why should he be forced to face either: 1. letting his
    friends use an insecure version of Mixmaster, or 2. emailing his
    substantial modifications to Anonymizer, Inc. and risking his
    location?

    http://wiki.debian.net/?DissidentTest

As with the Desert Island test, this isn't part of the OSD, but *is* a
significant factor in adoption of software by some parties.  Such terms
will likely greatly limit appeal of your product.

> Any application programming interface developed for Cubit must be
> licensed under this license or the latest version of the GPL as
> available from www.opensource.org 

<sniff><sniff>

Smells like a dual license.

> Developer declarations:
> All developers declare that all modifications to Cubit are the
> developer's own original creation or that the developer has sufficient
> rights to grant the rights required in this license.

This should probalby be part of a separate affidavit attached to any
selected code contributions.

> Disclaimer of Warranty:
> Cubit is provided ???as is??? without warranty of any kind, either
> expressed or implied, including without limitation that Cubit is free
> of defects, merchantable, fit for a particular purpose or
> non-infringing. The entire risk as to quality and performance of Cubit
> is with you. Should Cubit prove defective in any respect, you and
> nobody else, assume the cost of any necessary servicing, repair or
> correction. No use of Cubit is authorised except under this license.

OK

> Litigation:
> If you initiate litigation with regard to Cubit against anyone then
> all rights granted you in terms of this license shall terminate
> automatically unless you agree to pay the software originator or
> developer a mutually agreeable royalty for your past and future use of
> Cubit or withdraw your litigation claim. 

I suspect this clause is overspecified.  Termination in the event of
dispute may be sufficient.  Terms of settlement should likely *not* be
specified in the license, particularly as you're now speaking on behalf
of any future developers, who may not wish to be similarly restricted.
You're also putting a restriction on yourself.

Hire a lawyer or use an existing license.

> 
> Limitation of Liability:
> Under no circumstances and under no legal theory whatsoever shall you,
> the software originator any developer or anyone else be liable to you
> or anyone else for any indirect, special, incidental, consequential or
> any other damages of any kind. Even if  you, the software originator
> any developer or anyone else was informed of the possibility of such
> damage or losses. In areas where applicable law prohibits clauses such
> as these you may not use Cubit under this license.

No comment.

> Various:
> This license shall be governed by South African law and any litigation
> relating to this license shall be subject to the jurisdiction of the
> Randburg magistrates court and thereafter any Supreme Court division
> of South Africa.

I'll note that any such jurisdictional clause is subject to issues.
While many OSD approved licenses specify a locale that's convenient to
me (say, somewhere within California), that's hardly likely to be a
comfort to someone in Johannesburg, Auckland, or Frankfort (KT or DE).

> Multiple licensing:
> Only the software originator may designate portions of Cubit as
> multiple licensed. Multiple licensed means that the software
> originator permits you to utilise portions or all of Cubit under your
> choice of this license or the alternative licenses, if any, specified
> by the software originator.
> 
> If you have read this far, thank you very much and I would really
> appreciate any feedback whatsoever

In its current state, not OSD compliant.  Even substantially rewritten,
I see major problems.

I'd suggest you re-review existing licenses and consider a dual license
with one of GPL, LGPL, or BSD-style license, as best meets your needs.

> Have a great day !

IANAL, TINLA, YADA.

Peace.

-- 
Karsten M. Self <kmself at ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
    The prize is Swiss francs / for the best entry in each / of six languages.
    - Haiku six languages
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