OVPL - wrap-up of objections

[Alex Bligh]

Larry,

--On 21 July 2005 16:47 -0700 Lawrence Rosen <lrosen at rosenlaw.com> wrote:

>> I'm not sure what you mean by "doable" here. I don't believe
>> there is an enforceability problem beyond that of ANY
>> reciprocal license in bare license form (Andy disagrees, if
>> you do too, I'd like to know why; Larry Rosen seems to agree).
>
> That misstates what I told you. Your rather tough license requirement that
> contributors assign their copyrights to the ID

And as per my email to you off-list, there is NO requirement that
contributors ASSIGN their copyrights to the ID. They give a NON-EXCLUSIVE
LICENSE to the ID, which is different.

> is possibly not enforceable
> in the absence of a written contract. I referred you to 17 USC 201(e) and
> 204(a). You should consult your own attorney to get advice about how or if
> those sections of copyright law might affect your license.

I'm more familiar with UK law than US, but I quote them below:
	§ 201. Ownership of copyright
	...
	(e)  Involuntary Transfer.— When an individual author’s
	ownership of a copyright, or of any of the exclusive rights under a
	copyright, has not previously been transferred voluntarily by that
	individual author, no action by any governmental body or other
	official or organization purporting to seize, expropriate,
	transfer, or exercise rights of ownership with respect to the
	copyright, or any of the exclusive rights under a copyright, shall
	be given effect under this title, except as provided under title
	11.

I am not sure what relevance this has, in that it appears to be about
governmental or other official intervention. Moreover, it talks about
EXCLUSIVE rights and ownership. 3.3 does not transfer exclusive rights.
It grants SPECIFICALLY non-exclusive rights.

	§ 204. Execution of transfers of copyright ownership
	...
	(a) A transfer of copyright ownership, other than by operation of
	law, is not valid unless an instrument of conveyance, or a note or
	memorandum of the transfer, is in writing and signed by the owner
	of the rights conveyed or such owner’s duly authorized agent.

Well this looks more relevant. It talks about transfer in copyright
ownership (assignment). However, note again that the OVPL s3.3 does NOT
transfer copyright ownership (or purport to do so). It grants a
non-exclusive license. Just like s.2, and the GPL.

Even a sub-licensable perpetual license is characteristically very different
from an assignment if it is non-exclusive. It thus would appear to fall
outside the provisions of 17 USC 204(a).

Just for clarity, I quote the relevant bit of 3.3 below.

	3.3.      Additional License of Modifications to Initial Developer.
	
	To the fullest extent permitted by law, in addition to the license
	granted under clause 2, You hereby grant a perpetual, irrevocable,
	world-wide royalty-free, sub-licensable, non-exclusive license to
	the Licensed Modifications to the Initial Developer in respect of
	Future Versions:
	
	(a)       under intellectual property rights (other than patent or
	trademark) Licensable by You to use, reproduce, modify, display,
	perform, sublicense, and distribute the Licensed Modifications (or
	portions thereof); and
	
	(b)       under Patent Claims infringed by the making, using, or
	selling of Licensed Modifications either alone and/or in
	combination with the Original Software and prior Modifications used
	by You (or portions of such combination), to make, use, sell, offer
	for sale, have made, and/or otherwise dispose of: (1) the Licensed
	Modifications (or portions thereof); and (2) the combination of the
	Licensed Modifications, the Original Software and prior
	Modifications used by You (or portions of such combination)
	
	BUT SUCH GRANT SHALL BE AND SHALL REMAIN CONDITIONAL UPON
	...

Now here is the relevant bit of 2, which we all seem to agree is
enforceable:

	2.2		Contributor Grant

	Subject to third party intellectual property claims, each
	Contributor hereby grants You a world-wide, royalty-free,
	non-exclusive license
	
	(a)  under intellectual property rights (other than patent or
	trademark) Licensable by Contributor, to use, reproduce, modify,
	display, perform, sublicense and distribute the Modifications
	created by such Contributor (or portions thereof) either on an
	unmodified basis, with other Modifications, as Covered Code and/or
	as part of a Larger Work; and
	
	(b) under Patent Claims infringed by the making, using, or selling
	of  Modifications made by that Contributor either alone and/or in
	combination with its Contributor Version (or portions of such
	combination), to make, use, sell, offer for sale, have made, and/or
	otherwise dispose of: 1) Modifications made by that Contributor (or
	portions thereof); and 2) the combination of  Modifications made by
	that Contributor with its Contributor Version (or portions of such
	combination).

I think we all agree (2) is enforceable, because it's CDDL text, and
is practically identical to the MPL text.

You will note that the only difference in the license grant is that
the 3.3 grant is perpetual, irrevocable and sub-licensable. These are
insufficient to make it into an assignment, because it is non-exclusive.
	
Alex