[License-discuss] [License-review] Use of the term Public Performance

VanL van.lindberg at gmail.com
Tue Jul 2 15:46:25 UTC 2019

I think that the points that Bruce makes are valid. I personally considered
"public performance" to be nicely tailored to the intended scope. But if
that is what is objectionable, why not:

If You exercise any permission available under the copyright law, patent
law, or database protection laws applicable in Your jurisdiction, such that
the Software or any licenseable part of the Software is distributed,
communicated, displayed, made available, performed, or displayed to a
non-Affiliate third party, You must: [...]


On Sat, Jun 29, 2019 at 8:07 AM Pamela Chestek <pamela at chesteklegal.com>

> I'm taking the liberty of breaking it into four threads for the four
> topics, to make it easier (I hope) to keep the comments on each topic
> together.
> Pam
> On 6/28/19 11:40 PM, Bruce Perens via License-discuss wrote:
> I have brought this discussion to license-discuss, as requested by Pam.
> *The mechanism of “public performance”: The health of an open source
> software project relies on a predictable and consistent understanding of
> what the license permits and what it requires for compliance. However,
> this license uses a term specific to US law, which is “public performance.”*
> There are a few issues here.
> 1. The license is being held to a standard for universal applicability of
> terms of art that I am not aware has been applied to Open Source licenses
> before. That said, license quality is important, and this may simply
> reflect the fact that more trained attorneys are participating in license-review.
> But where are globally-accepted terms defined? Shall OSI at least
> informally adopt a particular dictionary of Legal English? Will the
> objection to local terms of art influence license drafters to avoid terms
> of art in general, and would that detrimental?
> 2. In the Affero family of licenses, the drafters went to some lengths to
> synthesize a public performance right, I think in the belief that no such
> thing applied to software in at least one administration. At the time I
> thought that administration was the USA. I heard, during consideration of
> this license, continuing disagreement among attorneys regarding whether a
> protected public performance right exists for software today in US law.
> Larry Rosen can give you a lecture on his use of "External Deployment" in
> OSL.
> 3. I don't personally find it objectionable for license terms requiring
> source code distribution to trigger upon public performance. It seems
> reasonable in the age of SaaS, and licenses with some form of this right
> have been previously accepted by OSI.
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