[License-discuss] Proposed license decision process

Lawrence Rosen lrosen at rosenlaw.com
Thu Dec 13 21:23:06 UTC 2018

Nick Weinstock wrote:

> To your question below, I can cite two examples of Richard’s concern:


And you also cited two examples of your own concern about
unapproved/un-approvable licenses. Thanks! I appreciate that.


*	Ms-LPL: True. That license is not open source because it fails OSD
#10. It requires a specific technology. I believe it was not approved by
*	CPOL: True. That license has a "fields of endeavor" limitation
concerning "illegal, immoral, or improper purposes." I believe it was not
approved by OSI. They have always rejected such licenses, but the provision
can be imposed in another, open source friendly way. I avoided that problem
in OSL 3.0 by merely placing the contractual obligation to obey the law
(including export restrictions) upon the licensee. 

OSL 3.0 § 15: "Right to Use. You may use the Original Work in all ways not
otherwise restricted or conditioned by this License or by law, and Licensor
promises not to interfere with or be responsible for such uses by You."

*	BSD: True. The patent license is not express. I have complained
about that loudly every time someone proposes another BSD version. But our
community is simply not worried about that. However, if a license now is
proposed without an express patent grant, I'd object to it vociferously
based on the definition of "open source software" that you quoted. OSI
recently disapproved a license that expressly excluded a patent license,
written that way purposefully to collect consideration. On the other hand,
licenses from universities or research institutions may try to limit patent
licenses based on previous contractual or legal requirements. That is why it
becomes important to define "open source software" as software that is
"actually distributed under terms that grant...," so that nobody can claim
that their software is open source merely because they can see it. Is it
"actually distributed" or "terms that grant" that concerns you? The W3C
Royalty Free Patent Policy requires only that "the RF license conforming to
the requirements in this policy shall be made available by the licensor as
long as the Recommendation is in effect." The hope and expectation is that
actual patent licenses won't be needed. That was also the approach taken by
the Open Web Foundation. What is OSI's position on this?
*	There are no open source copyright or royalty-free patent licenses
that impose "consideration". There is some confusion in our field about the
difference between "consideration" and "conditions" in licenses. OSI accepts
license conditions that related to copyright or license enforcement – such
as copyleft, attribution, trademark, the warranty of provenance,
jurisdiction, patent defense – but those are not forms of consideration. For
example, the copyleft "condition" for the licensee to reciprocate with
his/her own software doesn't mean that anyone proposes to make money off
that condition; copyleft licenses are granted for the purpose of creating
"open source software," which is its own reward. Academic licenses, on the
other hand, treat the "condition" of attribution as its own reward, even
though there is no way to calculate the actual value of any such pleasure.




From: Nicholas Matthew Neft Weinstock <nweinsto at qti.qualcomm.com> 
Sent: Thursday, December 13, 2018 11:37 AM
To: lrosen at rosenlaw.com; license-discuss at lists.opensource.org
Subject: Re: [License-discuss] Proposed license decision process


This crossed in the ether with my response to Richard.


To your question below, I can cite two examples of Richard’s concern:


* Ms-LPL is generally viewed as not “Open Source” because it has a platform
limitation.  It’s not listed in SPDX or on OSI.  It would satisfy this


* Code Project Open License is sometimes viewed as not “Open Source” because
it has a “fields of endeavor” limitation (may not be used for illegal,
immoral, or improper purposes).  It is listed in SPDX, but not on OSI.  It
would satisfy this definition.


I can also cite two examples of my concern, that licenses traditionally
viewed as “Open Source” could be excluded by a highly literalist reading of
the OSD:


* A highly literalist reading of “actually distributed under terms that
grant” could suggest that the copyright and patent license terms must be
express.  The standard 3-clause BSD license does not make any mention of
patents, and could thus fail the OSD.


* A highly literalist contemplation of “without payment of royalties or
other consideration, to distribute the unmodified or modified software”
could extend “other consideration” to actions that require the licensee to
become a licensor, such as requiring binary distribution to also make the
accompanying source (including the licensee’s modifications) available under
the same terms.  Copyleft licenses such as GPL could thus fail the OSD.


Note: a highly literalist reading might also exclude CPOL, because it
requires that a distributing licensee must ensure that recipients agree to
the license, which could be another “other consideration.”




From: Lawrence Rosen
Sent: Thursday, December 13, 2018 10:09 AM
Subject: Re: [License-discuss] Proposed license decision process


Richard Fontana wrote:

> I can easily come up with hypothetical licenses that would seem not to
fail a highly literalist reading of the OSD, but which historically would
never have been *treated* as conforming to the OSD, because of an obvious
failure of the license to provide software freedom as traditionally
understood in the community.


Can you please cite examples that we've screwed up (or create a
hypothetical) because of a "highly literalist reading of the OSD"? 


"Traditionally understood?" You sound like the late Justice Antonin Scalia!
(Sorry; that crack is ad hominem!) :-)



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