External deployment / Otherwise Make Available (was Re: OVPL summary)

Lawrence Rosen lrosen at rosenlaw.com
Thu Sep 15 18:17:15 UTC 2005

Alex Bligh wrote:
> In response to an off-list, I note the above (and Larry's 
> wording) incorporates the word "used". That should be 
> interpreted in a copyright law sense. 

If I said it that way I misspoke. The word "use" in OSL 3.0 is in the patent
law sense. That word has no definition in copyright law. (Although 17 USC
117 contains the words "utilization" and "used" with reference to software,
but without definition.)

What OSL 3.0 does is condition your copyright license upon your treatment of
third-party use in the patent law sense (i.e., "External Deployment") as a
distribution for section 1(c) purposes. So if you allow third parties to
"use" software as described in External Deployment, that is a condition
satisfied, thereby obligating you to license that software reciprocally.

If there is confusion, perhaps it is in the way that OSL 3.0 defines
external deployment. 

The example we discussed here a long time ago related to an SMTP server. I
argued that such a server is "used" by the customers of the ISP and by its
employees; use by the customers is an external deployment, use by its
employees is not. Work done by the SMTP server to process incoming mail for
the ISP's customers and employees is not use by the senders of the email.

The word "use" in a patent law sense, it seems to me, is very much the way
the word applies in a computer science sense. That is, one uses software
when one is in control of its functions or operations, not when the software
is merely incidental to the transmission, across a network, of data
belonging to third parties who are entirely unaware of its operation and
didn't elect to "use" it in any way. 

So too, when a McBurger customer tells a counter clerk what he wants for
lunch, and the employee actually uses the cash register to place the order,
the customer isn't using the software, the employee is. At no time would a
McBurger customer be liable for patent infringement on the basis of use, but
the McBurger company might. Hence the use of "use" in the patent law sense.

I'm sure there are edge cases, and the folks on this list have never shied
away from arguing about edge cases as if they make the general rule less
useful. However, I'd be more interested to learn whether people here think
that, in general, the use of the word "use" in the definition of External
Deployment in OSL 3.0 is too vague to be useful. :-)


Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  *  fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and 
   Intellectual Property Law" (Prentice Hall 2004) 
   [Available also at www.rosenlaw.com/oslbook.htm]

> -----Original Message-----
> From: Alex Bligh [mailto:alex at alex.org.uk] 
> Sent: Thursday, September 15, 2005 3:16 AM
> To: license-discuss at opensource.org; Lawrence Rosen
> Cc: Alex Bligh
> Subject: External deployment / Otherwise Make Available (was 
> Re: OVPL summary)
> --On 15 September 2005 10:51 +0100 Alex Bligh 
> <alex at alex.org.uk> wrote:
> >> "Otherwise Make Available" shall, with reference to software, mean 
> >> the use of that software in such a manner that it may be 
> used by one 
> >> or more parties other than You, or (in the course of their 
> >> employment) Your employees, or (in the exclusive course of their 
> >> duties to You) Your contractors, whether such use is achieved by 
> >> means of making that software available to those parties over a 
> >> computer network, or otherwise.
> >
> > (& Andrew - that's the thing from the archives I said I'd find)
> In response to an off-list, I note the above (and Larry's 
> wording) incorporates the word "used". That should be 
> interpreted in a copyright law sense. Some people seem to be 
> concerned about (say) the following scenario.
> The software is a burger ordering system deployed in 
> McBurgers. McBurgers modified the software from an OVPL/OSL 
> (take your pick) original work. It runs touch-screens in 
> burger-bars. The touch-screens are only used by McBurgers 
> employees. Customers order burgers by asking the McBurgers 
> employees for what they want. Is the customer "using" the 
> software (through a human intermediary in the form of an 
> employee). I cannot see how the word "using" can be construed 
> this way in law, despite some people's view to the contrary.
> I am taking it that something for which you would not require 
> a license cannot be "use".
> Larry?
> Alex

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