[License-discuss] For Discussion: Open Logistics License v1.1
McCoy Smith
mccoy at lexpan.law
Mon Sep 19 16:10:37 UTC 2022
I still find the patent language confusing. To wit:
The grant says that “no patent licenses are granted for use of the Subject
Matter of the License or the Contributions which become necessary for its
lawful use due to the fact that third party
modifications are made to the Subject Matter of the License or the
respective Contributions after the Contributions have been submitted by the
Contributors”
This is a relatively standard (in FOSS license) patent grant limitation that
makes clear that no patent grant is made for changes after the Contributor
submits their contribution.
But the termination clause says termination may happen when there is a
patent infringement allegation by the Contributor “alleging that the Subject
Matter of the License or a Contribution incorporated or contained therein
constitutes
a contributory factor to patent infringement”
Those two clauses seem mutually contradictory: if you’re not granting a
patent license to subsequent modifications (which would necessarily include
claims that the licensed content is a “contributory factor” to
infringement), then your license should not terminate if you assert against
those modifications. Otherwise, you are either, expressly or by implication,
granting a license to those subsequent modifications.
Note also the termination for contributor factor infringement would
potentially cover hardware+software combinations. I’m not sure if that is
the intent here, but that might be potentially considered non-reciprocal.
Also, I find the use of Derivative Work as a defined term here potentially
confusing as it excludes “works that remain separable from, or merely link
(or bind by name) to the interfaces of, the Subject Matter of the License
and Derivative Works thereof” but then the defined term is used to outline
the scope of the copyright grant. As a result, there is a reading of this
license that excludes a grant to create works that are separable from or
bind by name to the interfaces of the licensed code. I think the opposite is
intended (i.e., doing so is unrestricted) but that’s not entirely clear from
this draft.
From: License-discuss <license-discuss-bounces at lists.opensource.org> On
Behalf Of Andreas Nettsträter
Sent: Tuesday, August 30, 2022 12:13 AM
To: license-discuss at lists.opensource.org
Subject: [License-discuss] For Discussion: Open Logistics License v1.1
Dear all,
As proposed, I forward this thread about the Open Logistics License from
license review to license discuss.
We updated to version 1.1 (see attachment) and addressed all mentioned
points from the last discussions. Especially, the critical points within Ҥ3
Grant of a patent license” are removed now. In addition, we have carried out
a spell check and aligned much of the wording.
There are only two points left, which are specific for German/European law:
Regarding “§ 7 Limited warranty”:
It is an attempt to limit the warranty, whether it is enforceable in this
way cannot be conclusively said. But the worst that can happen is that the
provision is invalid. The second sentence is just a general statement that
new components, patents, etc. can be added at any time.
Regarding “§ 8 Limitation of liability”:
We changed the wording to make it clearer, but in general intent cannot be
fully excluded under German/European law, the rest results from the limited
liability.
I’m looking forward to your comments and we are still hoping for a
successful license review afterwards.
Regards
Andreas
Von: License-review <license-review-bounces at lists.opensource.org
<mailto:license-review-bounces at lists.opensource.org> > Im Auftrag von Pamela
Chestek
Gesendet: Dienstag, 5. Juli 2022 00:32
An: license-review at lists.opensource.org
<mailto:license-review at lists.opensource.org>
Betreff: Re: [License-review] For Approval: Open Logistics License
(In my personal capacity)
Hi Andreas,
Is English the language of the agreement? I want to make sure we're
reviewing the actual agreement itself, not your translation of it. If the
license is in German, we will need to have the German version and a
certified translation for review.
Here are my concerns about this license:
Definition for "Subject Matter of the License"
This is confusingly defined. It states that it means "the copyrighted works
of the software components ..." and continues "as well as the other
components protected under copyright, design and/or patent law which are
made available under this license ... as well as the application and user
documentation."
First, with respect to the first use of the word "copyrighted," that
suggests the license is going to be limited to just the copyrightable
content, not, for example, any patentable content. The Apache license's
parallel provision, which is the definition for the "Work," is somewhat
similarly flawed because it uses the term of art "authorship," which one can
read as limiting the license to only copyright content. That's something we
cannot change in the Apache license, but I would suggest removing the
"copyrighted" limitation from this license to make sure it isn't construed
as limited to only content that is copyrightable.
The same definition then refers to "as well as the other components
protected under copyright, design and/or patent law which are made available
under this license in accordance with a copyright notice inserted into or
attached to the work ...." This clause seems unnecessary. If a third-party
included component states that it is under the Open Logistics License, then
there is no need to also mention it in the license for the larger work. It
will only cause problems in license interpretation.
This phrase also likely goes beyond what may be the original scope of the
license for the "other component." The text says the Open Logistics License
applies to "the other components protected under copyright, design and/or
patent law ... as well as the application and user documentation." This says
that the Open Logistics License will apply to the "application and user
documentation" of third party components, which would appear to be
regardless of what the licenses actually are for the application and
documentation as assigned by the owner of the third party component. This is
a copyleft - I assume it wasn't intended, but that's what it says.
If the intent was that the Open Logistics License applies to "application
and user documentation" for the originally licensed code, not for the "other
components," the sentence needs to be restructured. At the moment it states
fairly clearly (under US English grammar rules) that the "application and
user documentation" is referring to the "other components," not the larger
work being licensed.
Also, if the intention is that the Open Logistics License applies, not only
to the code, but to the "application and user documentation," this isn't
necessarily a problem but I question whether it is a wise choice to require
that text works, like documentation, be under the same license as the
software code. It also seems to be a bit of a trap for the unwary; I expect
that most people believe that the software code and its documentation can be
separately licensed and won't realize that the code license is also
dictating the documentation license.
Finally, what is the "application" and how does it differ from the work
being licensed?
Definition for "Source Code"
It is defined as "in the programming language." I'm not sure why this was
changed from the common and well-understood concept of that source code is
the preferred form for making modifications. I am just wary of new
definitions when there is a well-understood and perfectly serviceable
definition. It is an opportunity to create ambiguity about the meaning and
intent for the term. What problem were you trying to solve with this new
definition?
Definition of "Object Code"
What does the word "interim" do? Shouldn't the final manifestation of the
code that will run on the computer also be considered "object code"?
§2 Granting of usage rights
Why is the grant so detailed? Why is it not simply a grant of all the rights
of the copyright owner, similar to what you have done for the patent grant?
What grant have you made that isn't also a grant of one of the exclusive
rights of the copyright owner? My concern about such a detailed grant,
rather than one that simply reiterates all the exclusive rights of the
copyright owner, is that there will be unintentional loopholes. I see from
your website that you intend to ensure that the rights as described in the
Supplementary Terms of Contract for the Procurement of IT Services are
clearly granted, but perhaps it would be better to grant all copyright
rights (e.g., reproduce, distribute, exhibit, make available, etc.) and then
add "including, but not limited to," the rights you have enumerated.
§3 Grant of a patent license
The grant of the copyright license is "for the terms of the copyrights" but
the term of the patent grant is not stated. I don't think it's necessary to
state a term since the grant is perpetual, but having two clauses that say
something different invites challengers to find some distinction between the
two. It would also be easier to understand the license if the terms of the
patent license grant (non-exclusive, perpetual, etc.) was parallel to the
grant in the copyright license. It would then be clear that the scope of
both grants is meant to be the same.
"Under no circumstances will anything in this Section 3 be construed as
granting, by implication, estoppel or otherwise, a license to any patent for
which the respective Contributors have not granted patent rights when they
submitted their respective Contributions." What is this sentence designed to
do? The grant clause defines the grant (patents that read on the
contribution or the whole work at the time of contribution). It's not
necessary to say that there is no grant of what is not granted.
As to the patent license termination, it does not appear to be limited to
proceedings for infringement only of patents that were licensed, but any
patent infringement lawsuit at all brought by a licensee. (This might also
be McCoy's point.) Also, as I read it, not only is the patent license
terminated, but the entire license is terminated: "all patent licenses which
have been granted to You under this License for the Subject Matter of the
License as well as this License in itself [that is, the Open Logistics
License as a whole] shall be deemed terminated ..." Was that the intent? I
know that termination provisions vary and I'm not sure what the current view
is on the appropriateness of terminating the copyright license too, but
there are OSI-approved licenses that terminate the copyright grant too.
I don't understand this sentence: "the Contributors are entitled to decide
in their own discretion to abandon respectively maintain any patent
designated by patent number upon delivery of the Subject Matter of the
License." It is the words "to abandon respectively maintain any patent ...
upon delivery of the Subject Matter of the License" that are very unclear.
What does "abandon respectively maintain any patent" mean? It is saying both
abandon and maintain without any conjunction.
You state "We have been asked by some partners of the current project for
which the license has been drafted to include the possibility that they
submit a list of patents they are not willing to contribute to the work.
This is reflected in the license text. However, it is part of our workflow
for the inclusion of contributions into the project that no contributions
would be accepted where a patent that would be part of such list of patents
excluded from the contribution could be applicable." If above sentence is
where you are stating that a patentee may withhold a patent license to its
contribution, it will block the license from being approved. A license that
allows someone to withhold patents from licensing is inconsistent with the
OSD and cannot be approved. It doesn't matter that your project doesn't
accept patent-encumbered software, in order for a license to be approved by
the OSI it must be acceptable for all users in all circumstances.
If instead this sentence is meant to advise that a patentee can "release
their patents in order to make them available to the public" as you mention
below, which I understand to mean abandoning patent rights, I don't think
it's necessary to say that expressly in the license. No one using the
software will insist that a patentee maintain a patent.
§7 Limited warranty
"This License is granted free of charge and thus constitutes a gift.
Accordingly, any warranty is excluded." Is that the undeniable conclusion
under German law or is this statement enforceable as a matter of contract?
That wouldn't necessarily be the case under US law. In the US a license
grant isn't necessarily a gift and one can't transform it into a gift by
just saying so.
Does the statement "The Subject Matter of the License is not completed and
may therefore contain ... additional patents of Contributors" a reference to
patents that are carved out of the grant (not acceptable, as mentioned
above)? If not, what is the meaning?
§8 Limitation of liability
Reiterating Eric's point that "Except in cases of intent and gross
negligence or causing personal injury" is unclear. Is it two things, causing
personal injury intentionally or causing personal injury through gross
negligence, or three things, an intentional tort not related to personal
injury, gross negligence not related to personal injury, and personal injury
no matter how caused, even if only by simple negligence? Can the language be
clarified?
Regarding intentional infringement, as well as that the software is
"accurate, devoid of mistakes, complete and/or usable for any purpose," are
these claims that cannot be excluded by contract under German law?
As to others' comments about the applicable law provision, there are other
approved licenses that have choice-of-law provisions, so I don't see that as
a stopper. What I see as the stopper is the ability to NOT grant a patent
license for a patent that reads on a contribution. That is a full stop for
OSI approval.
It also is not a well-drafted English-language license, as I've described
above. We have learned from experience that these licenses can have lives
that are longer than ours and a drafting error or ambiguity will last
forever. For that reason I believe it is important that new open source
licenses be written as cleanly as possible. This one, though, has a number
of flaws that I believe make it unacceptable as a new open source license.
Pam
Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com <mailto:pamela at chesteklegal.com>
www.chesteklegal.com
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On 5/30/2022 5:49 AM, Andreas Nettsträter wrote:
Dear all,
Finally, I managed to collect all input. Therefore, I’m happy to address
your concerns regarding our license.
I hope the clarifications help to understand our approach a bit more. If
there is need for more details, please reply and I’ll try to answer faster
than in the first round.
Regards
Andreas
1. Eric’s concern with regard to the limitation of liability in the license
With regard to the comment on the limitation of liability, Eric fears that
contributors will be inappropriately liable under the license. In general,
we do not see any reasonable claims against contributors since contributors
do not enter contracts with users but only allow to use the IP they created
with their contribution (they grant rights of use). At least we are not
aware of any claims against contributors to open source software.
Furthermore, the limitation of liability clause itself does not create any
liability but limits the liability in case it arises at all. Therefore, it
should be beneficial to all contributors. Since the license is drafted to
comply at least with German laws, a further limitation of liability would
not be possible once liability arose at all. E.g., the comprehensive
limitation of liability in the Apache 2.0 license would be void, if it had
to be interpreted under German (or other European laws). Since liability for
personal injury cannot be excluded under German laws on general terms and
conditions, adjustments to the close would not benefit contributors.
2. Comments No. 1 and No. 2 by McCoy Smith
McCoy’s assumption is 100% correct, there is no comprehensive European
contract law any more than there is in the USA. The adjustments made in the
license compared to the “original” Apache 2.0 license are made in accordance
with German law. We decided to use a choice of law clause in order to be
sure that the license is enforceable. As mentioned above, in the case German
laws applied wrt the Apache 2.0 license, some of the provisions would be
void and therefore not enforceable. However, it is our understanding that
there have been few court cases wrt to open source licenses and even fewer
decisions that relied on the enforceability of clauses that could/would be
void under appliable laws.
3. Comment No. 3 by McCoy Smith:
According to German law, one can only deviate from or limit liability to a
very limited extent by means of general terms and conditions. Assuming that
open source software is handed over as a gift, we fortunately no longer have
comprehensive liability for simple negligence, but "only" the liability
specified in the licence (under German laws). However, it is not possible to
further deviate from this liability in favour of the potentially liable
party.
4. Comment No. 4 by McCoy Smith:
We see three issues here.
a. There seems to be a misunderstanding wrt the last paragraph of the patent
clause. Of course, any patentee can unilaterally "revoke" his/her patent
with the consequence that it ceases to exist and therefore a right to use it
is no longer required. However, this is not a revocation of a patent once
granted in the sense that the recipient would then no longer be allowed to
use it. What we have seen in the past is that companies and public
institutions have released their patents in order to make them available to
the public, therefore, we wanted to include this statement in the license.
b. The right to use the patent should be limited to the part of the works
that existed at the time of filing a contribution. Otherwise, further
contributions from third parties could lead to a situation where a
contributor would have to grant rights to use patents which have not been
necessary at the time of the contribution. We think this is in line with the
patent clause in the Apache 2.0 license.
c. The last issue might be the most important for you. We have been asked by
some partners of the current project for which the license has been drafted
to include the possibility that they submit a list of patents they are not
willing to contribute to the work. This is reflected in the license text.
However, it is part of our workflow for the inclusion of contributions into
the project that no contributions would be accepted where a patent that
would be part of such list of patents excluded from the contribution could
be applicable.
Von: License-review <mailto:license-review-bounces at lists.opensource.org>
<license-review-bounces at lists.opensource.org> Im Auftrag von Andreas
Nettsträter
Gesendet: Montag, 16. Mai 2022 18:36
An: License submissions for OSI review
<mailto:license-review at lists.opensource.org>
<license-review at lists.opensource.org>
Betreff: Re: [License-review] For Approval: Open Logistics License
Dear all,
I'm still waiting for the final input from all partners. Corona/Covid are
still causing longer delays here.
Sorry for that. I hope that I can provide feedback until next week the
latest.
Regards
Andreas
_____
From: License-review <license-review-bounces at lists.opensource.org
<mailto:license-review-bounces at lists.opensource.org> > on behalf of Andreas
Nettsträter <andreas.nettstraeter at openlogisticsfoundation.org
<mailto:andreas.nettstraeter at openlogisticsfoundation.org> >
Sent: Sunday, April 17, 2022 5:15:36 PM
To: License submissions for OSI review <license-review at lists.opensource.org
<mailto:license-review at lists.opensource.org> >
Subject: Re: [License-review] For Approval: Open Logistics License
Dear all,
Thanks for the useful feedback.
I'll talk to the lawyers and give you more information on the decisions and
reasons for the changes. Also regarding the connection between German and
European law.
Because of Easter holidays this could take some days.
Regards
Andreas
_____
From: License-review <license-review-bounces at lists.opensource.org
<mailto:license-review-bounces at lists.opensource.org> > on behalf of Eric
Schultz <eric at wwahammy.com <mailto:eric at wwahammy.com> >
Sent: Saturday, April 16, 2022 9:12:50 PM
To: License submissions for OSI review <license-review at lists.opensource.org
<mailto:license-review at lists.opensource.org> >
Subject: Re: [License-review] For Approval: Open Logistics License
Andreas,
Thanks for submitting this!
I'm no lawyer but I'm a little uncomfortable with the wording for the
disclaimer of liability around which words the "and" and "or" apply to.
For example does it mean:
1. (intent and gross negligence) OR (causing personal injury), or
2. (intent) and (gross negligence or causing personal injury)
While we should definitely avoid any harm to our users, 1 seems like it's
creating a pretty high risk to developers. After all, in some cases it's
nearly impossible to avoid all possible injuries to all persons everywhere.
Depending on the design of the software, it may be dangerous to some subset
of users while perfectly safe to other users.
One thought I have is that, in cases of potential liability, I am under the
impression that certain punishments apply if someone intends to cause the
injury or exhibited gross negligence. So does it make sense to have an "and"
there?
My thinking is it would make more sense to rewrite the clause to mean:
(intent OR gross negligence) AND (causing personal injury). After all, if
you exhibit intent and gross negligence but don't cause any injury, as I
understand it, there would be no civil liability because there would be no
injured party. Then again, I'm not a lawyer and I'm based in the US so I'm
applying my very limited knowledge to that.
Eric
On Thu, Apr 14, 2022 at 6:37 AM Andreas Nettsträter
<andreas.nettstraeter at openlogisticsfoundation.org
<mailto:andreas.nettstraeter at openlogisticsfoundation.org> > wrote:
Dear License Review Team,
I would like to propose the Open Logistics License for an approval.
You can find the plain text copy of the license in the attachment and the
requested additional information in the following.
Rationale:
This new license is intended to represent the rights and obligations of an
established license, such as Apache v2, while respecting the differences
between US and European law. The changes were mainly done in the paragraphs
regarding warranty and liability.
Distinguish:
The Open Logistics License is based on Apache v2, but has been modified to
comply more with European law.
Legal review:
The entire process of discussing and drafting the license was accompanied by
BHO Legal, a German law firm specialized in IT law. Adjustments were made to
specifically adapt the rules on the patent license, warranty, and liability
to European law. The adjustments are intended to strengthen the acceptance
of the license by European companies and minimize (perhaps only perceived)
risks. The license was subsequently reviewed and approved by several
in-house lawyers of larger European companies. Further details and
justifications for the individual changes can be provided on request.
Proliferation category:
The decision on one specific category is quite hard. The license is
compatible with Apache2, but was adapted to some specific European rules.
The license will be used by a larger group of companies in the frame of open
source development for logistics and supply chain management, but is, of
course, not limited to this purpose. Therefore, the license can be seen as a
special purpose license.
I'm happy to deliver more information, if needed.
Regards from Germany
Andreas
--
Andreas Nettsträter
Open Logistics Foundation
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