[License-discuss] License Stewards

Lawrence Rosen lrosen at rosenlaw.com
Thu Oct 4 20:34:13 UTC 2012

Grahame Grieve suggested:
> in the absence of a license statement on a license itself, 
> then the license can only be re-used under the terms of fair use....

Unfortunately, fair use only covers YOUR use of the license. If you then
publish that modified license and distribute it, you are in some sense
intentionally detracting from the market for the original license (as a
copyright court might analyze the fair use factors). On the other hand, if
copyright doesn't apply at all then your use and your licensees use of your
license need not even be "fair".

An appeals court analyzed a somewhat similar situation in Veeck v. Southern
Building Code Congress International, 293 F.3d 791 (5th Cir., 2002) (cert.
This is one of my favorite cases. It puts standards organizations on notice
that, at least in the Fifth Circuit, they can't own the law.


Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Rd., Ukiah, CA 95482
Office: 707-485-1242

-----Original Message-----
From: Grahame Grieve [mailto:grahame at healthintersections.com.au] 
Sent: Wednesday, October 03, 2012 1:45 PM
To: lrosen at rosenlaw.com; license-discuss at opensource.org
Subject: Re: [License-discuss] License Stewards

in the absence of a license statement on a license itself, then the license
can only be re-used under the terms of fair use, just like anything else
that is published without a license?


On Thu, Oct 4, 2012 at 5:44 AM, Lawrence Rosen <lrosen at rosenlaw.com> wrote:
> A recent thread on the legal-discuss@ list at Apache asked whether 
> someone could take the Apache License 2.0 and revise it for their own
> After a side trip I took into the esoteric question about whether a 
> copyright license could itself be copyrighted, I bring the discussion 
> to this license-discuss@ list at OSI along with a bit of history. (I'm 
> copying the legal-discuss at apache list only for closing the circle.)
> In the olden days, open source licenses usually contained a copyright 
> statement and the identification of a "license steward". This person 
> or organization (e.g., RMS/FSF for the GPL licenses; IBM for the CPL; 
> and Mitchell Baker at what was then the Mozilla Project for the MPL) 
> reputedly had exclusive control over future license versions. Indeed, 
> Mitchell took offense at that time because, without her permission, I 
> had revised the MPL license into a version I thought was easier to 
> read and understand (the Jabber license, since deprecated).
> Whether or not the license steward role was legally significant, it 
> certainly raised control issues in the community and created animosity 
> over license language purity even where personal offense was not 
> intended. Even though the goal was to change the license for some 
> presumably good legal effect, some people still took offense when their
"own" words were changed.
> When I released the AFL/OSL licenses in early drafts, I omitted any 
> declaration of license steward but I asserted with a copyright notice 
> that I was the author of those licenses. Several people (including, I 
> remember, Mitchell Baker) complained that I was claiming control over 
> a license that people might want to enhance or change. Nobody trusted 
> that I personally (or my heirs) would forever have the good of the
community at heart.
> I agreed with them. That was my incentive to write section 16 of those 
> licenses, which declared authorship but disclaimed control over changes.
> This section 16 also carefully prohibited what was then characterized 
> as "relicensing" of existing works; declared that the name of the 
> license was exclusive; and reminded the world that only OSI could 
> bless a revised license as "open source".
> Here's what section 16 of the OSL says:
> 16) Modification of This License. This License is Copyright C 2005 
> Lawrence Rosen. Permission is granted to copy, distribute, or 
> communicate this License without modification. Nothing in this License 
> permits You to modify this License as applied to the Original Work or to
Derivative Works.
> However, You may modify the text of this License and copy, distribute 
> or communicate your modified version (the "Modified License") and 
> apply it to other original works of authorship subject to the 
> following conditions: (i) You may not indicate in any way that your 
> Modified License is the "Open Software License" or "OSL" and you may 
> not use those names in the name of your Modified License; (ii) You 
> must replace the notice specified in the first paragraph above with 
> the notice "Licensed under <insert your license name here>" or with a 
> notice of your own that is not confusingly similar to the notice in 
> this License; and (iii) You may not claim that your original works are 
> open source software unless your Modified License has been approved by 
> Open Source Initiative (OSI) and You comply with its license review and
certification process.
> Most licenses nowadays omit declarations of license stewardship and 
> don't even mention the ownership of future derivative versions. For 
> example - and this was the gist of the question on the Apache 
> legal-discuss@ list - the Apache License 2.0 says nothing about the 
> right to create derivative versions of the license.
> In this ambiguous situation, what is the default rule for derivative 
> works of open source licenses? My assertion is that all open source 
> licenses may freely be copied or modified into different versions; 
> permission from a license steward is never necessary to do that 
> because these are functional legal documents for which copyright 
> protection is inappropriate. (In an email at Apache, I characterized 
> my copyright notice on my own licenses as
> "chutzpah".) Without OSI approval, however, nobody responsible will 
> call the modified license an "open source license".
> Do you agree?
> /Larry
> Lawrence Rosen
> Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
> 3001 King Ranch Rd., Ukiah, CA 95482
> Office: 707-485-1242
> _______________________________________________
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> License-discuss at opensource.org
> http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discus
> s

http://www.healthintersections.com.au /
grahame at healthintersections.com.au / +61 411 867 065

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