For Approval: MindTree Public License

[Smith, McCoy]

Is there any OSI-approved license with mandatory grant-back provisions
of the scope set forth in paragraphs 3 & 4?  Is it appropriate under
prevailing law and the OSD to demand a grant back is to IP beyond
copyright, when the grant itself is limited to copyright only? 

-----Original Message-----
From: Matthew Seth Flaschen [mailto:superm40 at comcast.net] 
Sent: Thursday, October 13, 2005 3:11 PM
To: Shahnawaz Khan; license-discuss at opensource.org
Subject: Re: For Approval: MindTree Public License

No one said it had to be "exactly similar"?  Which is most similar, even
if that entails only a vague resemblance?

-Matthew Flaschen


> MINDTREE PUBLIC LICENSE
> Version 0.1        06 October 2005
> 
> MindTree Consulting Private Limited ("MindTree") is the owner of the
Original 
> Licensed Software and proposes to permit the use, copy, Distribution
or 
> Modification of the Original Licensed Software under the terms of this
MindTree 
> Public License (the "MTPL").
> 
> By clicking on the I Agree button below, You shall be affirming that
You have 
> read the terms and conditions of this MTPL and that You agree to be
bound by the 
> terms of this MTPL and that You will abide by and adhere to the duties
and 
> obligations contained in this MTPL. Your electronic acceptance shall
operate as 
> a valid binding contract for the purpose of all applicable laws in
this regard.
> 
> 1.	MindTree is the owner of the Original Licensed Software, in its 
> entirety, as protected by Indian law and international conventions.
Subject to 
> the terms of this MTPL, MindTree hereby grants You a world-wide,
royalty-free, 
> perpetual, non-exclusive license to install, use, reproduce, Modify,
display, 
> perform and Distribute the Original Licensed Software verbatim or
portions 
> thereof (including Modifications), in Source Code, with or without the
object 
> code.
> 
> [Comments] This is in compliance with OSD #1 & #2
> 
> 2.	In the event You Distribute copies of the Original Licensed
Software, 
> You agree that You shall Distribute the same under the terms of the
MTPL, make 
> available a copy of this MTPL to every recipient of the Original
Licensed 
> Software and ensure that such recipient is bound by the terms and
conditions of 
> this MTPL. Any failure on Your part to Distribute the Original
Licensed 
> Software, under the terms of the MTPL, including providing a copy of
this MTPL, 
> shall render You liable for all direct or indirect consequences
arising from 
> such failure, including any indemnification to be provided to MindTree
for all 
> such consequences.
> 
> [Comments] This is in compliance with OSD # 3
> 
> 3.	You shall not be required to publish, in accordance with this
MTPL, any 
> Modifications to the Original Licensed Software in the event You do
not intend 
> on Distributing the same. However, in the event You Distribute the
Modifications 
> to the Original Licensed Software, You agree that upon the first
instance of 
> Distribution, the Modifications to the Original Licensed Software, You
shall be 
> deemed, in consideration for the mutual rights and obligations
contained herein, 
> to have assigned all of Your intellectual property rights (including
copyright 
> and patent rights) in any Modifications to MindTree. You agree that
such 
> assignment shall be perpetual, worldwide, royalty free and
non-revokable. In 
> consideration of Your assignment of the intellectual property rights
of Your 
> Modifications, MindTree shall simultaneously grant You a perpetual,
world-wide, 
> royalty-free, non-revokable, non-exclusive licence to use and
Distribute the 
> Modifications. You also agree to waive all moral rights that You may
have in 
> Your Modifications. You further agreed that such assignment shall not
lapse nor 
> the rights transferred therein revert to You, even if MindTree does
not exercise 
> the rights under the assignment within a period of one year from the
date of 
> assignment. You acknowledge and agree that You shall waives any right
to and 
> shall not raise any objection or claims with respect to the
assignment.
> 
> [Comment] This is to enable MindTree Consulting Pvt Ltd have copyright
ownership 
> of modified software and distribute the modifications under a
commercial license 
> if required.
> 
> 4.	If the assignment under Section 4 is ineffective or does not
occur for 
> any reason, You grant to MindTree a royalty free, perpetual, worldwide
licence 
> to use all intellectual property rights You have in all Modifications,
including 
> the right to grant licences to others on the terms of this MTPL or any
other 
> license. You acknowledge that notwithstanding the provisions of
Section 30A read 
> along with Section 19(4) of the (Indian) Copyright Act, 1957, the
license shall 
> not lapse nor the right transferred therein revert to You even if
MindTree does 
> not exercise the rights under the license within a period of one year
from the 
> date of the license. You shall not take any steps against MindTree to
revoke the 
> license granted hereunder. You, as a Contributor, agree to grant to
others a 
> world-wide, perpetual, royalty-free, non-exclusive license, subject to
third 
> party intellectual property claims, to install, use, reproduce,
Modify, display, 
> perform, and Distribute any Modifications created by such Contributor
or 
> portions thereof, in Source Code with or without the Object Code,
either on an 
> unmodified basis or as part of the any larger work. 
> 
> [Comment] This is to enable MindTree Consulting Pvt Ltd have copyright
ownership 
> of modified software and distribute the modifications under a
commercial license 
> if required.
> 
> 
> 5.	All Modifications created and Distributed by You shall be
clearly 
> identifiable to have been made by You. You shall submit, in writing or

> electronically in a manner that can be unequivocally attributed to
You, Your 
> Modifications to MindTree, or any other agency authorized to make
available the 
> Original Licensed Software, for its inclusion in the Original Licensed
Software. 
> Your Modifications shall be documented in a file as part of the Source
file 
> which shall also contain Your name, permanent physical address, email
address, 
> the date of the modification. If You have knowledge that a license to
a third 
> party's intellectual property right is required to exercise the rights
granted 
> by this MTPL to Your Modifications, including the right to use an API,
You must 
> declare so and describe the claim and provide adequate information
about such 
> party in the said file.
> 
> [Comment] This is in compliance with OSD # 4
> 
> 6.	You represent to MindTree and any other users that Your
Modifications 
> are Your original work and that neither it nor its assignment, licence
or use 
> under this MTPL or its revised versions, infringes the intellectual
property 
> rights of any other person other than a patent identified and declared
by You as 
> part of Your file in the Source Code. You shall indemnify, defend and
hold 
> harmless MindTree or any other user from and against all demands,
liabilities, 
> causes of action, judgments, costs, claims, damages, suits, losses and
expenses 
> (including attorneys' fees), of any nature, kind or description of any
person or 
> entity whomsoever as a result of and arising our of any breach of
representation 
> and warranty provided herein.
> 
> [Comment] This is in compliance with OSD # 4 and adds clause for IP
protection 
> in case of modifications
> 
> 7.	When Distributing the Modifications and the Original Licensed
Software, 
> You shall ensure that the Source Code of the Modifications and the
Original 
> Licensed Software are published under the terms of this MTPL and the 
> Modifications and Original Licensed Software are Distributed under the
terms and 
> notices of this MTPL. Any failure on Your part to Distribute the
Original 
> Licensed Software (including its Modifications), under the terms of
the MTPL, 
> including providing a copy of this MTPL shall render You liable for
all direct 
> or indirect consequences arising from such failure, including any 
> indemnification to be provided to MindTree for all such consequences.
> 
> [Comment] This is in compliance with OSD # 3
> 
> 8.	This MGL, in no way, grants any rights to trademarks,
copyrights, 
> patents, trade secrets or any other intellectual property of MindTree
or of any 
> Contributor except as expressly stated herein. You agree that You
shall not 
> register a patent or other intellectual property right in respect of
the 
> Original Licensed Software or any Modifications.
> 
> [Comment] This is to prevent patenting of software released under this
license
> 
> 9.	If any provision of this MTPL shall be invalid or unenforceable
to any 
> extent, for any reason including by reason of any law or regulation or

> government policy or decision of a court of law, as against You, You
shall cease 
> to carry out such acts which conflict with the terms of this MTPL.
Further, You 
> agree that the remainder of this MTPL and the application of such
provision to 
> You other than those as to which it is held invalid or unenforceable
shall not 
> be affected thereby, and each provision of this Agreement shall be
valid and 
> enforceable to the fullest extent permitted by law.
> 
> [Comment] This is in compliance with OSD # 5
> 
> 10.	THE ORIGINAL LICENSED SOFTWARE (INCLUDING ITS MODIFICATIONS) IS
PROVIDED 
> UNDER THIS LICENSE ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND,
EITHER 
> EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE
ORIGINAL 
> LICENSED SOFTWARE IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A
PARTICULAR PURPOSE 
> OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE
OF THE 
> ORIGINAL LICENSED SOFTWARE (INCLUDING ITS MODIFICATIONS) IS WITH YOU.
SHOULD 
> ORIGINAL LICENSED SOFTWARE (INCLUDING ITS MODIFICATIONS) PROVE
DEFECTIVE IN ANY 
> RESPECT, YOU (AND NOT MINDTREE OR ANY OTHER CONTRIBUTOR) ASSUME THE
COST OF ANY 
> NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY

> CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO USE OF ORIGINAL
LICENSED 
> SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
> 	
> [Comment] This is to limit warranty claims for software distributed
under this 
> license
> 
> 11.	YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF
THE 
> ORIGINAL LICENSED SOFTWARE AND YOU AGREE THAT IN NO EVENT AND UNDER NO
LEGAL 
> THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE
SHALL 
> MINDTREE BE HELD LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, OR
INCIDENTAL 
> DAMAGES WITH RESPECT TO ANY CLAIM, FOR ANY REASON, INCLUDING BUT NOT
LIMITED TO 
> ON ACCOUNT OF OR ARISING FROM USE OF THE ORIGINAL LICENSED SOFTWARE,
LOSS OF 
> GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND
ALL OTHER 
> COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN
INFORMED OF THE 
> POSSIBILITY OF SUCH DAMAGES.
> 
> [Comment] This is to limit warranty claims for software distributed
under this 
> license
> 
> 12.	In the event You fail to comply with the terms of this MTPL and
fail to 
> cure a breach within thirty (30) days of becoming aware of such
breach, the MTPL 
> and the rights granted hereunder will automatically terminate as
regards You. 
> From the date of termination, You shall cease to use the Original
Licensed 
> Software. All Distributions of the Original Licensed Software that are
properly 
> made shall however survive any termination of this MTPL. Provisions
that, by 
> their nature, must remain in effect beyond the termination of this
MTPL, shall 
> survive.
> 
> [Comment] This is a clause listing termination of license
> 
> 13.	If You initiate litigation by asserting a patent infringement
claim 
> against MindTree or a Contributor ("Respondent") alleging that
Original Licensed 
> Software directly or indirectly infringes any patent, then any and all
rights 
> granted by such Respondent to You under Sections 1 or 4 of this MTPL
shall 
> terminate prospectively upon thirty (30) days notice from Respondent
(the 
> "Notice Period") unless within that Notice Period You either agree in
writing to 
> withdraw Your litigation claim with respect to the Original Licensed
Software 
> against such Respondent, failing which the rights granted by MindTree
or 
> Contributor to You under Sections 1 and 4 automatically terminate at
the 
> expiration of said Notice Period.
> 
> [Comment] This is clause listing termination of license in event of
patent 
> infringement claims
> 
> 14.	This MTPL shall be governed by and construed and interpreted in 
> accordance with the laws of India, without giving effect to any
conflict of law 
> principles. You hereby irrevocably consent to the exclusive
jurisdiction of the 
> Courts of the Bangalore in connection with any action or proceeding
arising out 
> of or relating to this MTPL.
> 
> [Comment] This license is in accordance and governed by Indian Laws
> 
> 15.	MindTree has the right to publish revised and/or new versions of
this 
> MTPL. The Original Licensed Software, as published under a particular
version of 
> the MTPL, will continue to be used under the terms of that version.
You may also 
> choose to use such Original Licensed Software under the terms of any
subsequent 
> version of the License published by MindTree. No one other than
MindTree has the 
> right to modify the terms applicable to Original Licensed Software
created under 
> this License
> 
> [Comment] This clause is to enable MindTree to come up with new
versions of this 
> license
> 
> 16. 	Definitions and Interpretation
> 
> "Contributor" shall mean MindTree and any individual or legal entity
on behalf 
> of whom a Contribution has been received by MindTree and subsequently 
> incorporated within the Original Licensed Software.
> 
> "Distribute" shall mean to post, publish, upload, initiate, transfer
or 
> otherwise make available the Original Licensed Software (including its

> Modifications) to another party, and shall specifically cover the act
of placing 
> a copy of the Original Licensed Software anywhere that another party
might 
> reasonably be expected to gain access. Distribution may be possible in
any 
> medium (whether tangible or intangible, fixed or unfixed), including,
but not 
> limited to, document-based medium, computer-based network, network,
magnetic 
> means, electronic means, and any other method for the publication,
retention, 
> conveyance, possession or holding of content.
> 
> "Interface" shall mean interfaces, functions, properties, class
definitions, 
> APIs, Header Files, GUIDs, VTables, and/or protocols allowing one
piece of 
> software, firmware or hardware to communicate or interoperate with
another piece 
> of software, firmware or hardware.
> 
> "Modification(s)" shall mean (i) any addition to, deletion from and/or
change to 
> the substance and/or structure of the Original Licensed Software,
including 
> Interfaces; (ii) any addition to, deletion from and/or change to the
files or 
> modules of the Source Code; (iii) adding any new file that contains
any part of 
> Original Licensed Software. Modifications shall also include
translations of the 
> Original Licensed Software.
> 
> "Original Licensed Software" shall mean the software licensed under
this MTPL, 
> which shall include its Source Code, its object code, its Interfaces,
and all 
> updates, enhancements, releases, patches, modifications, and error
corrections, 
> and any literature or materials of any kind provided in written or
electronic 
> form in connection the Original Licensed Software, including training,

> promotional or sales literature or materials and shall include all
assigned 
> Distributed Modifications. 
> 
> "Source Code" means the preferred form of the Original Licensed
Software, i.e., 
> computer-programming code for making Modifications, not directly
executable by a 
> computer but which may be printed out or displayed in a human readable
form, 
> including all modules it contains, plus any associated Interfaces,
scripts used 
> to control compilation and installation of an executable, which when
compiled 
> through a compiler program is convertible into machine readable code.
> 
> "You" or "Your" shall mean an individual or legal entity exercising
permissions 
> granted by this MTPL.
> 
> The following rules apply unless the context requires otherwise:
> 
> (a)	Examples given in this MTPL are non-limiting. The words
"including" and 
> "includes" are non-limiting;
> 
> (b)	words in the singular number include the plural and vice versa;
and
> 
> (c)	where a word or phrase is given a particular meaning, other
parts of 
> speech and grammatical forms of that word or phrase have corresponding
meanings.
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> Copyright (c) MindTree Consulting Private Limited
> (Unauthorized copying of, altering or modifying of or creating
confusingly 
> similar copies of this version of the MTPL is strictly prohibited)
>
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