[License-discuss] System 76's BeanBooks Public License v1.0
Richard Fontana
fontana at sharpeleven.org
Wed Sep 18 05:06:31 UTC 2013
On Tue, 17 Sep 2013 19:50:29 -0700
Luis Villa <luis at lu.is> wrote:
> I just wanted to raise this thread again; I'm interested in
> discussion/comment from others but have had only the barest time to
> skim.
(Same here.)
> Sec. 3.3 strikes me as odd; essentially a very strong CLA baked into
> the license. Not non-free/open, per se, at least at first glance -
> just... odd?
"Submit" is susceptible to a broad reading that would give System76 a
privileged license relative to everyone else (somewhat like the old
NPL). *Presumably* this is not what was intended, but given the nature
of the rest of this license I am not entirely sure. The only reason why
I could see this being a non-free/non-open issue is the arguable lack of
clarity. (Compare Apache License 2.0 section 5, and the ASF CLAs.)
Policywise, the clause bothers me, because even if "Submit" is given a
narrow reading it still means that System76 is baking in a CLA that
gives it privileges not given to others.
> Sec. 4.3 strikes me as actually conceptually somewhat interesting,
> inasmuch as many commercial lawyers have argued that this type of
> clause is often implicit in software that contains a protect trademark
> embedded in the software and not removed by a downstream licensee.
> This, obviously, makes it very explicit. I'd suggest that it violates
> the spirit of the OSD, but not necessarily the letter (again, with
> only very brief thought to the matter - I may be forgetting something
> obvious in the OSD).
I believe this violates the letter of the OSD.
OSD 2: The program must include source code, and must allow
distribution in source code as well as compiled form.
OSD 4: The license may require derived works to carry a different name
or version number from the original software.
OSD 5: The license must not discriminate against any person or group of
persons.
OSD 7: The rights attached to the program must apply to all to whom the
program is redistributed without the need for execution of an
additional license by those parties.
The BeanBooks license appears to make it a condition of the license that
if you're in one particular group (commercial redistributors), you have
to execute and possibly pay for an additional trademark license from
System76 to distribute copies of the software covered by *this license*
that you get from System76.
Even if it is the case that the version provided by System76 contains
some embedded trademark, it should not be a condition *within* an open
source license that a fee-bearing trademark license is required for all
commercial redistribution, above all for forms of commercial
redistribution that are otherwise outside the scope of trademark law.
As a separate matter, this license contains an archaic badgeware
provision in section 4.2. I also now consider badgeware conditions to
violate the OSD, though I recognize that was not the historical view for
narrowly-tailored badgeware provisions (and for the record in the
distant past I regarded the license this is based on, the Yahoo! Public
License 1.1, to be FLOSS, and it contained an identical or similar
badgeware provision). Badgeware provisions inherently violate the OSD
because they are in effect undue burdens placed on the right of
modification, and appear to have been invented precisely in order to
discourage modification, or at least modification by commercial
licensees. (OSD 3: "The license must allow modifications and derived
works...").
I also believe I goofed in regarding the Yahoo! Public License
badgeware provision to be acceptable in 2008 (or else my views must
have changed in some subtle way), because it is not narrowly tailored.
Notably, it does not account for the possibility that preservation of
logos will be technically impossible, a point which I remember being
brought up in the license-discuss criticism of badgeware licenses back
in 2006/2007. The same applies to the badgeware provision in the
BeanBooks license.
- Richard
>
> Luis
>
> On Wed, Aug 28, 2013 at 8:11 AM, Bradley M. Kuhn <bkuhn at ebb.org>
> wrote:
> > A colleague of mine asked for my comment on the following license:
> > https://beansbooks.com/home/opensource (included in full text below
> > for the archives). It's reminiscent of the Yahoo! Public License
> > and Zimbra Public License.
> >
> > I notice that it seems that the Zimbra Public License and Yahoo! are
> > listed as Free Software licenses by the FSF but not as Open Source
> > by OSI.
> >
> > Does someone from OSI want talk to System 76 about this and why
> > this is a "bad idea" to make their own license? System 76 is
> > generally a pretty friendly company to Open Source and Free
> > Software.
> > ######################################################################
> > URL: https://beansbooks.com/home/opensource BeansBooks Public
> > License v1.0
> >
> > This BeansBooks Public License (this "Agreement") is a legal
> > agreement that describes the terms under which System76, Inc., a
> > Colorado corporation ("System76") will provide software to you
> > via download or otherwise ("Software"). By using the Software, you,
> > an individual or an entity ("You") agree to the terms of this
> > Agreement. In consideration of the mutual promises and upon the
> > terms and conditions set forth below, the parties agree as
> > follows:
> >
> > 1. Grant of Copyright License
> > 1.1 - Subject to the terms and conditions of this Agreement,
> > System76 hereby grants to You, under any and all of its
> > copyright interest in and to the Software, a royalty-free,
> > non-exclusive, non-transferable license to copy, modify,
> > compile, execute, and distribute the Software and
> > Modifications. For the purposes of this Agreement, any
> > change to, addition to, or abridgement of the Software made by You
> > is a "Modification;" however, any file You add to the Software that
> > does not contain any part of the Software is not a
> > "Modification."
> >
> > 1.2 - If You are an individual acting on behalf of a
> > corporation or other entity, Your use of the Software or any
> > Modification is subject to Your having the authority to bind such
> > corporation or entity to this Agreement. Providing copies to
> > persons within such corporation or entity is not considered
> > distribution for purposes of this Agreement.
> >
> > 1.3 - For the Software or any Modification You distribute in
> > source code format, You must do so only under the terms of
> > this Agreement, and You must include a complete copy of this
> > Agreement with Your distribution. With respect to any
> > Modification You distribute in source code format, the
> > terms of this Agreement will apply to You in the same way those
> > terms apply to System76 with respect to the Software. In other
> > words, when You are distributing Modifications under this Agreement,
> > You "stand in the shoes" of System76 in terms of the rights
> > You grant and how the terms and conditions apply to You and the
> > licensees of Your Modifications. Notwithstanding the
> > foregoing, when You "stand in the shoes" of System76, You are not
> > subject to the jurisdiction provision under Section 7, which
> > requires all disputes under this Agreement to be subject to the
> > jurisdiction of federal or state courts of Colorado.
> >
> > 1.4 - For the Software or any Modification You distribute in
> > compiled, object code format or over a network, You must
> > also provide recipients with access to the Software or Modification
> > in source code format along with a complete copy of this
> > Agreement. The distribution of the Software or
> > Modifications in compiled, object code format or over a network may
> > be under a license of Your choice, provided that You are in
> > compliance with the terms of this Agreement. In addition, You must
> > make absolutely clear that any license terms applying to such
> > Software or Modification that differ from this Agreement are
> > offered by You alone and not by System76, and that such
> > license does not restrict recipients from exercising rights in the
> > source code to the Software granted by System76 under this
> > Agreement or rights in the source code to any Modification
> > granted by You as described in Section 1.3.
> >
> > 1.5 - This Agreement does not limit Your right to distribute
> > files that are entirely Your own work (i.e., which do not
> > incorporate any portion of the Software and are not
> > Modifications) under any terms You choose.
> >
> > 2. Support
> > System76 has no obligation to provide technical support or
> > updates to You.
> >
> > 3. Contributions
> > 3.1 - A “Contribution” means any work of authorship that is
> > Submitted by You to System76 in which You own or assert
> > ownership of the Copyright. “Submit” means to provide a
> > Contribution to System76 by any form of communication.
> >
> > 3.2 - You retain ownership of the Copyright in Your
> > Contribution and have the same rights to use or license the
> > Contribution which You would have had without entering into the
> > Agreement.
> >
> > 3.3 To the maximum extent permitted by the relevant law, You
> > grant to System76 a perpetual, worldwide, non-exclusive,
> > transferable, royalty-free, irrevocable license under the
> > Copyright covering the Contribution, with the right to
> > sublicense such rights through multiple tiers of
> > sublicensees, to reproduce, modify, display, perform and distribute
> > the Contribution as part of the Software. If System76 includes your
> > Contribution in Software, System76 may license the
> > Contribution under any license, including copyleft, permissive,
> > commercial or proprietary licenses. As a condition on the exercise
> > of this right, System76 agree to also license the Contribution
> > under the terms of the license or licenses which System76 are using
> > for the Software.
> >
> > 3.4 For patent claims related to the Contribution including,
> > without limitation, method, process, and apparatus claims
> > which You own, control or have the right to grant, now or in the
> > future, You grant System76 a perpetual, worldwide,
> > non-exclusive, transferable, royalty-free, irrevocable
> > patent license, with the right to sublicense these rights through
> > multiple tiers of sublicensees, to reproduce, modify,
> > display, perform, sell and distribute the Contribution as part of
> > the Software. Further, you grant end users of the Software a
> > perpetual, worldwide, non-exclusive, royalty-free,
> > irrevocable patent license to use the Contribution.
> >
> > 4. All Rights Reserved
> >
> > 4.1 - Except for the license expressly granted under
> > copyright in Section 1.1, no rights, licenses or forbearances are
> > granted or may arise in relation to this Agreement whether
> > expressly, by implication, exhaustion, estoppel or otherwise. All
> > rights that are not expressly granted under this Agreement are
> > hereby reserved.
> >
> > 4.2 - In any copy of the Software or in any Modification you
> > create, You must retain and reproduce, any and all
> > copyright, patent, trademark, and attribution notices that are
> > included in the Software in the same form as they appear in the
> > Software. This includes the preservation of attribution
> > notices in the form of trademarks or logos that exist within a user
> > interface of the Software.
> >
> > 4.3 - Commercial distribution of the Software requires a
> > trademark license agreement and you may be required to
> > pay. Using the Software within a corporation or entity is
> > not considered commercial distribution. This license does not grant
> > You rights to use any party's name, logo, or trademarks,
> > except solely as necessary to comply with Section 4.2.
> >
> > 5. Disclaimer of Warranties
> >
> > THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY
> > KIND. SYSTEM76 MAKES NO WARRANTIES, WHETHER EXPRESS,
> > IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE.
> > SPECIFICALLY, SYSTEM76 DOES NOT WARRANT THAT THE SOFTWARE WILL BE
> > ERROR FREE OR WILL PERFORM IN AN UNINTERRUPTED MANNER. TO THE
> > GREATEST EXTENT ALLOWED BY LAW, SYSTEM76 SPECIFICALLY DISCLAIMS ALL
> > IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
> > PARTICULAR PURPOSE (EVEN IF SYSTEM76 HAD BEEN INFORMED OF SUCH
> > PURPOSE), AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE, ANY
> > MODIFICATIONS THERETO AND WITH RESPECT TO THE USE OF THE
> > FOREGOING.
> >
> > 6. Limitation of Liability
> >
> > IN NO EVENT WILL SYSTEM76 BE LIABLE FOR ANY DIRECT,
> > INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
> > OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF
> > USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER) IN
> > CONNECTION WITH OR ARISING OUT OF OR RELATING TO THE
> > FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE OR ANY OTHER RIGHTS
> > GRANTED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR
> > TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, AND EVEN IF SYSTEM76 HAS
> > BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
> >
> > 7. Term and Termination
> >
> > 7.1 - This Agreement will continue in effect unless and
> > until terminated earlier pursuant to this Section 7.
> >
> > 7.2 - In the event You violate the terms of this Agreement,
> > System76 may terminate this Agreement.
> >
> > 7.3 - All licenses granted hereunder shall terminate upon
> > the termination of this Agreement. Termination will be in addition
> > to any rights and remedies available to System76 at law or
> > equity or under this Agreement.
> >
> > 7.4 - Termination of this Agreement will not affect the
> > provisions regarding reservation of rights (Section 4.1),
> > provisions disclaiming or limiting System76's liability
> > (Sections 5 and 6), Termination (Section 7) or Miscellaneous
> > (Section 8), which provisions will survive termination of
> > this Agreement.
> >
> > 8. Miscellaneous
> >
> > This Agreement contains the entire agreement of the parties
> > with respect to the subject matter of this Agreement and supersedes
> > all previous communications, representations,
> > understandings and agreements, either oral or written, between the
> > parties with respect to said subject matter. The relationship of
> > the parties hereunder is that of independent contractors, and this
> > Agreement will not be construed as creating an agency, partnership,
> > joint venture or any other form of legal association between the
> > parties. If any term, condition, or provision in this
> > Agreement is found to be invalid, unlawful or unenforceable to any
> > extent, this Agreement will be construed in a manner that most
> > closely effectuates the intent of this Agreement. Such invalid term,
> > condition or provision will be severed from the remaining
> > terms, conditions and provisions, which will continue to be valid
> > and enforceable to the fullest extent permitted by law. This
> > Agreement will be interpreted and construed in accordance
> > with the laws of the State of Colorado and the United States of
> > America, without regard to conflict of law principles. The
> > U.N. Convention on Contracts for the International Sale of
> > Goods shall not apply to this Agreement. All disputes arising out of
> > this Agreement involving System76 or any of its subsidiaries
> > shall be subject to the jurisdiction of the federal or state
> > courts of Colorado, with venue lying in Denver County,
> > Colorado. No rights may be assigned, no obligations may be
> > delegated, and this Agreement may not be transferred by
> > You, in whole or in part, whether voluntary or by operation of law,
> > including by way of sale of assets, merger or consolidation,
> > without the prior written consent of System76, and any
> > purported assignment, delegation or transfer without such consent
> > shall be void ab initio. Any waiver of the provisions of this
> > Agreement or of a party's rights or remedies under this Agreement
> > must be in writing to be effective. Failure, neglect or delay by a
> > party to enforce the provisions of this Agreement or its rights or
> > remedies at any time, will not be construed or be deemed to
> > be a waiver of such party's rights under this Agreement and will not
> > in any way affect the validity of the whole or any part of
> > this Agreement or prejudice such party's right to take subsequent
> > action.
> > --
> > -- bkuhn
> > _______________________________________________
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