[License-discuss] Proposed license decision process

Fri Dec 28 20:52:13 UTC 2018

Nigel, thanks for your suggestion. I am still concerned because "consideration" can sometimes be very painful. (Example: "I'll license you my open source software including all of my patents, but you must give me rights to all of your patents.")

The issue is who – if anyone – will pay that consideration? The OSD doesn't allow any downstream licensee (of a copy or derivative work) to be obligated to pay anything at all for her own copies, even if she later sells them to third parties. That downstream licensee needn't even share her own software, although she must obey non-discriminatory license conditions such as copyleft and attribution and access to the source code. Those copies are "free" in all monetary, or monetarily-equivalent, ways.

So, who pays consideration in an open source transaction? No downstream licensee is obligated to share her own software or pay any other consideration. Requiring her to do so would be requiring extra consideration for that open source (free) work. She may have accepted non-discriminatory conditions to copyleft and attribute (etc.) her copies and derivative works. But she won't pay one peppercorn for the right to make those copies and derivative works. 

Hence the definition of "open source software" including a prohibition on consideration paid by downstream licensees to distribute; that protects downstream users from having to pay for free software.

Why do I say that "the sharing of open source software among users worldwide is consideration enough"? Who pays it? There is a worldwide community of millions of people who share their open source software ("licensors") who impose and accept license conditions to share their open source software with the world; others share it for free without copyleft and other license conditions. 

But those millions of people never collect consideration for those downstream copies or derivative works. Sharing alone (with non-discriminatory license conditions) is consideration enough to share.

In all other respects, the payment of money (or equivalent) by a licensee to a licensor for a single copy of an open source work is completely legitimate. (Example: "Buy one copy from the developer for $1M, sell 2 million copies at $1 each.")

All that said, I'm more than willing to give permission to this online community to improve this definition in any way. CC0 perhaps?

“Open source software” means software actually distributed under terms that grant a copyright and patent license from all contributors to the software for every licensee to access and use the complete source code, make copies of the software or derivative works thereof and, without payment of royalties or other consideration, to distribute the unmodified or modified software. 

/Larry

From: Tzeng, Nigel H. <Nigel.Tzeng at jhuapl.edu> 
Sent: Friday, December 28, 2018 9:37 AM
To: lrosen at rosenlaw.com; license-discuss at lists.opensource.org
Subject: Re: [License-discuss] Proposed license decision process

Larry,

If there is non-monetary consideration present in open source licenses then then “without payment of royalties or other consideration” would exclude most, if not nearly all, OSI approved licenses using your definition.

The part of the definition we all would likely agree with would be “without payment of royalties”.  How much “other consideration” is too much seems to be subject to debate.  “BY” seems safe.  “SA” seems safe.  SSPL?  Not so much.

Some forms of consideration is okay, even good.  Others become overreach. 

Have a Happy New Year!

Nigel

From: License-discuss <license-discuss-bounces at lists.opensource.org <mailto:license-discuss-bounces at lists.opensource.org> > on behalf of "lrosen at rosenlaw.com <mailto:lrosen at rosenlaw.com> " <lrosen at rosenlaw.com <mailto:lrosen at rosenlaw.com> >
Reply-To: "lrosen at rosenlaw.com <mailto:lrosen at rosenlaw.com> " <lrosen at rosenlaw.com <mailto:lrosen at rosenlaw.com> >, "license-discuss at lists.opensource.org <mailto:license-discuss at lists.opensource.org> " <license-discuss at lists.opensource.org <mailto:license-discuss at lists.opensource.org> >
Date: Friday, December 28, 2018 at 12:04 PM
To: "license-discuss at lists.opensource.org <mailto:license-discuss at lists.opensource.org> " <license-discuss at lists.opensource.org <mailto:license-discuss at lists.opensource.org> >
Subject: Re: [License-discuss] Proposed license decision process

Regarding "consideration":

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

Bruce Perens is right. Please comment on THAT. Kevin and Florian worry too much about simple concepts about "consideration" in U.S. and U.K. law. 

/Larry

From: License-discuss <license-discuss-bounces at lists.opensource.org <mailto:license-discuss-bounces at lists.opensource.org> > On Behalf Of Bruce Perens
Sent: Friday, December 28, 2018 8:38 AM
To: license-discuss at lists.opensource.org <mailto:license-discuss at lists.opensource.org> 
Subject: Re: [License-discuss] Proposed license decision process

We went over this in Jacobsen v. Katzer. I testified (and the court agreed) that there _was_ consideration in Open Source licenses, although it was non-monetary.

    Thanks

    Bruce

On Fri, Dec 28, 2018 at 4:39 AM Kevin P. Fleming <kevin+osi at km6g.us <mailto:kevin%2Bosi at km6g.us> > wrote:

One of my colleagues (who strongly prefers public domain dedications
and permissive licenses) recently indicated to me that in his opinion
as a software author, the obligation to distribute source code
qualified as 'consideration', since it requires a tangible (to some
degree) action on the part of the licensee. I had never thought about
it this way, but I can definitely see how someone could arrive at that
conclusion, and this seems to align with Florian's concern.

On Thu, Dec 27, 2018 at 9:14 AM Florian Weimer <fw at deneb.enyo.de <mailto:fw at deneb.enyo.de> > wrote:
>
> * Lawrence Rosen:
>
> > But let us nevertheless agree on a pragmatic definition of "open
> > source software".
>
> > “Open source software” means software actually distributed under terms
> > that grant a copyright and patent license from all contributors to the
> > software for every licensee to access and use the complete source
> > code, make copies of the software or derivative works thereof and,
> > without payment of royalties or other consideration, to distribute the
> > unmodified or modified software.
>
> I think “consideration” is a bad word, it's difficult to understand
> for those of us who were not brought up in the English legal
> tradition.
>
> I'd be worried that “no other consideration” would exclude copyleft
> licenses, or more broadly speaking, licenses that use copyright as a
> tool to get the licensee to perform any additional action that is not
> inherently tied to exploitation of the copyright itself.
>
> _______________________________________________
> License-discuss mailing list
> License-discuss at lists.opensource.org <mailto:License-discuss at lists.opensource.org> 
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org

_______________________________________________
License-discuss mailing list
License-discuss at lists.opensource.org <mailto:License-discuss at lists.opensource.org> 
http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/attachments/20181228/a532da9a/attachment.html>