[License-discuss] Proposed license decision process

Fri Dec 14 05:23:26 UTC 2018

Nick Weinstock wrote:
> If a license says "You have a license to use my Trademark on the condition
that you pay me $XYX" is the money consideration or a condition of the
license?  What if it says "You will have a license to use my Trademark as
long as you continue to pay me $XYZ per month," does that change whether the
money is consideration or a condition of the license?

An IP aside: In both cases, those statements would invalidate the trademark!
:-(  In the U.S., one cannot "barely" license a trademark - for money or any
other consideration - without retaining control and approval over its uses
and over the software it brands. That attempt at the licensor's continued
contractual control over the downstream quality of the software would also
invalidate the license itself as open source; the software is restricted in
some ways to the downstream licensees by the upstream trademark owner.
That's a bad license for several reasons. (I'm not an expert trademark
attorney, so maybe Pam Chestek will confirm this for us.)

I'm aware that the term "consideration" has subtle legal meanings, including
in other countries. I think I mean something that can reasonably be valued
as money by the original licensor, even if in bitcoins or future promised
revenue (or "peppercorns <https://en.wikipedia.org/wiki/Peppercorn_(legal)>
" <-- follow that link). Does that help us distinguish it from a
"condition"? According to the OSD, we accept non-discriminatory license
conditions but not consideration in any "monetary" form for the downstream
right to distribute copies and derivative works. Remember, though, if the
proposed license itself is confusing about the distinction, OSI reviewers
can ask for clarification and rewording. 

The sharing of open source software among users worldwide is consideration
enough for all of us to enforce our licenses! 

/Larry

From: Nicholas Matthew Neft Weinstock <nweinsto at qti.qualcomm.com> 
Sent: Thursday, December 13, 2018 3:42 PM
To: lrosen at rosenlaw.com; license-discuss at lists.opensource.org
Subject: RE: [License-discuss] Proposed license decision process

We agree regarding the first two licenses, I'll cut those out for
readability.

Regarding BSD, it seems like you're saying that you think it would (or
should) not be accepted by OSI if it were newly proposed today.  So would it
be fair to say that taking up the new OSD would include some caveat that
licenses already approved as "Open Source" would be grandfathered in even if
they don't meet the new definition?  That would certainly help to avoid
confusion from licenses potentially being recategorized.

There are three open source licenses OSI has approved (RealNetworks,
Reciprocal Public License, and Apple Public Source License) that expressly
say "In consideration of, and as a condition to, the licenses granted to You
under this License ."  Of course, these licenses aren't seen very
frequently, but they could run afoul of a "no consideration" definition.

The ideas of conditions and consideration aren't always determined based on
whether they're about money, and they're not always distinct.  If a license
says "You have a license to use my Trademark on the condition that you pay
me $XYX" is the money consideration or a condition of the license?  What if
it says "You will have a license to use my Trademark as long as you continue
to pay me $XYZ per month," does that change whether the money is
consideration or a condition of the license?

To a more relevant example, does it matter if a license says "You have a
license to create Derivative Works, subject to the following conditions" or
"You have a license to create Derivative Works, subject to the following
restrictions" or "You have a license to create Derivative Works, provided
that you do the following"?

I could also see a difference whether something is a condition or
consideration based on what the licensee is being asked to do (or not do).
If it's a right you don't currently have, then telling you how you can
exercise the rights being licensed is more of a condition.  You don't have
the right to make a Derivative Work without a license, so telling you that
you can only make Derivative Works under license XYZ is a condition of
receiving a license to make Derivative Works.  But if it's a right you
currently have, then telling you to give up that right in order to get the
license is more like consideration.  You currently have the right to make a
Parody (as fair use), so if the license says you waive your right to make a
Parody that would be consideration. (sorry, I couldn't think of a better
example of this in the Open Source ecosystem)

-Nick

From: Lawrence Rosen <lrosen at rosenlaw.com <mailto:lrosen at rosenlaw.com> > 
Sent: Thursday, December 13, 2018 1:23 PM
Subject: RE: [License-discuss] Proposed license decision process

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.

*       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.

/Larry

From: Nicholas Matthew Neft Weinstock <nweinsto at qti.qualcomm.com
<mailto:nweinsto at qti.qualcomm.com> > 
Sent: Thursday, December 13, 2018 11:37 AM
To: lrosen at rosenlaw.com <mailto:lrosen at rosenlaw.com> ;
license-discuss at lists.opensource.org
<mailto: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
definition.

* 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."

-Nick

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!) :-)

/Larry

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