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

Pamela Chestek pamela at chesteklegal.com
Sat Jun 29 13:06:19 UTC 2019

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


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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