[License-discuss] Request for Comment: Software and Development License, version 3.0

[Bruce Perens]

Hi Alec,

You don't mention if you are a lawyer, or if you have used one.

It is kindest to the developers to give them a license that is the product
of a legal professional, because of the greater probability that it will
perform as expected when a judge interprets it, rather than letting the
developer down by surprising them with how it _doesn't_ do that. We have
real experience, for example Larry Wall's first Artistic license was
interpreted as a dedication to the public domain by a judge. That said,
I've seen lawyers who were fully licensed, but IMO poorly trained or simply
without aptitude, make terrible mistakes. Having a *good *one is better
than just having one.

Is the benefit of your license greater to developers than the cost? The
cost is the potential combinatorial problem of combining this license with
others in the OSI collection of around 100 (I haven't counted lately), *and
*the cost of understanding yet another license. For this reason I would
generally ask people not to contribute a new one unless it's really
revolutionary.

Software and Development License version 3.0 (SADLv3)
>

As mentioned by others, you aren't licensing development.

> !!! THIS IS A DRAFT. DO NOT USE THIS LICENSE UNTIL A FINAL VERSION IS
> APPROVED AND RELEASED !!!
>

Good caution.


> Copyright (C) <Year>, <Copyright holder name(s)>
> All rights reserved.
>

Although "All Rights Reserved" was necessary once, all rights are now
reserved automatically the moment pen is set to paper, without a need to
say anything. In the US this was effective March 1, 1989, as part of the
Berne Convention Implementation Act. The 210 or so signatories each
ratified this aspect of the Bern Convention on Copyright at various times,
but it is done.

The Software and Development License was created to fill what
> was perceived as a void in open-source licenses. The GPL licenses, while
> great, can and have caused unnecessary incompatibilities with other open-
> source licenses. On the other end, the BSD licenses, while widely
> compatible, are very permissive and do not have some of the protections
> provided in other licenses. The SADL aims to be widely compatible while
> still maintaining some protections.
>

Good sentiment, but perhaps a bit too much optimism here if you think your
version *isn't *going to cause incompatibilities too, just different ones.


> Works covered by this license are referred to as the "Work". The binary
> (machine-readable format) and source (human-readable format) forms are
> covered under this license.
>

This is unnecessarily restrictive. Better language would be "All forms of
the work are restricted by these terms, including binary (machine-readable)
and source code (human-readable)  forms. This is a bit of a contrived
example, but perhaps there could be an auditory rendition of the source
code.

Documentation and other types of files such
> as images can be licensed under these terms and are considered part of
> the Work in those cases.
>

You are self-contradictory here, as your previous sentence can be read
as *excluding
*images and documentation.

For the purposes of this license, source files for interpreted languages
> (such as BASH, Python, Perl, etc.) are considered both binary and source
> formats, since a source file constitutes both a machine-readable and
> human-readable format in the case of interpreted languages.
>

Well, binary forms seem to be important here, and in the subsequent
language, but this is again unnecessarily restrictive because it doesn't
take into account future development. Suppose, for example, that your code
is used to train a neural network, and within the network it does not exist
in any recognizable binary or source-code form, but the network is still
capable of spitting out portions of it on request?

### B. Conditional grant of permissions
>
> 1. Redistribution, use, and modification of the Work is permitted when the
> conditions listed in this license are met.
>
> 2. If any of the conditions of this license are not met, all permissions
> granted in this license are automatically terminated until all conditions
> of this license are met in full. When compliance is fully restored,
> then all permissions are automatically restored.
>

You are leaving open the question here of whether violations during a
period of infringement can be enforced once the infringement is cured. I
doubt this is what you want for the developer's sake, if any of them
actually try to enforce their license in a court. The only purpose of the
license is to be parsed by a judge in enforcement. Of course if you don't
want that to ever happen, you can use a dedication to the public domain.
Thus, we should carefully craft our licenses to be executed as we wish by a
judge.


> 3. The copyright holder(s) grant a non-exclusive,
> royalty-free patent license for the covered Work, if any part
> of the work is covered by a patent.
>

Qualcom operated - probably still does - a subsidiary exclusively for the
purpose of circumventing this sort of provision. It licenses copyrighted
works and doesn't own any of their patents. Good licenses thus have
additional language about ownership and control of patents.

4. The Work is provided by the copyright holder(s) and contributor(s)
> without any warranty, either express or implied.
>

This term may cause severance of the license without additional language to
the effect of "to the extend allowable by law". And this brings up that you
don't mention severance, and what the effect of it should be.


> ### C. Retention of copyright notices, conditions, and disclaimers
>
> 1. Redistributions of source code must retain the copyright notice,
> a list of all conditions in this license, and all disclaimers present
> in this license.
>

A list of all conditions and disclaimers in the license is not the license
text. "This license text" would be a better choice.


> 1. Distributors of modified binaries must also make the modified source
> code used to produce them available.
>

This brings up the RHEL circumvention. RHEL requires of its customers that
they refrain from redistributing the source code for some changes that they
receive, or they will be banned from being customers any longer. This
circumvention is presently applied to 1/3 of all paid-for Linux systems, by
IBM. This is Billions of dollars. It's a big enough deal that new licenses
should consider, and explicitly prohibit, such circumventions. The Neo4J
case decided unfavorably about the GPL terms (a requirement for no added
language) being effective, and this will go to appeal. You should be
acquainted with case law like this when you design a license, or use a
professional who is.

2. If user(s) have interactive access to a modified binary via a computer
> network, the source code used to produce those binaries must be made
> available to the user(s), either for free (no-cost) on a network server,
> or a reasonable fee may be charged for the conveyance of a copy on physical
> media.
>

This is an attempt to apply a public performance right to software as the
AGPL tries. Copyright law so far only defines public performance for a very
limited set of performances, and not for software, so none of the licenses
actually attempt to restrict a possible public-performance right directly,
and instead have roundabout ways to do it. I think what you are looking for
is something like "If any representation of the work is performed, run, or
executed for a person, that person shall be granted a copy of the source
code upon request", but a lawyer might do better than me with that bit.

The physical medium and fee is obsolete and used as an excuse to not put
stuff online, for which no fee should be necessary.

3. If a combined work is distributed as permitted in Section F, Clause 2,
> and the license governing the other work(s) combined with the Work
> requires disclosure or availability of the source code as a condition of
> distribution, then that requirement shall also apply to the Work.
>

Under the terms of the other license? If that's what you mean, say so.


> 1. The copyright holder(s) may, at their discretion, permit the use
>

Use is a specific right in copyright. Don't use it this way :-) What you
are trying to say is that the copyright holder may permit the licensee to
apply a later version of the license to this work, only if the copyright
holder explicitly grants that permission as part of their copyright
statement.


> 2. Permission is granted to distribute the Work when combined via linking
> with other works, provided that the other work's license permits
> modification
> and redistribution of source and binary forms.
>

And what if I combine the work through RPC? Exact same effect without
technically linking. This sort of term is unnecessarily restrictive of the
technology used to combine two works, and thus self-defeating. If you
really want the effect, it has to be something about combination of the
work in execution, and I'd want to sit down with a lawyer for a few days to
formulate that and keep it within the OSD.

3. Permission is granted to use the work as a data input or data source for
> machine learning, commonly referred to as "AI", "Artificial Intelligence",
> "LLM"/"Large Language Model", and/or other algorithmic methodologies that
> utilize significant amounts of data from multiple sources and a set of
> user-specified instructions and/or constraints to provide (presumably)
> intelligent
> and tailored output, provided that the output of such reproduces the
> copyright
> notice and this list of conditions.
>

Well, sort of clever but it doesn't actually say that the copyright notice
and conditions shall actually *apply* to the resulting output.

Because the output of the Work during normal use and execution is not
> considered
> to be a part of the Work, this license does not restrict the use of the
> output
> obtained from the Work.
>

This language doesn't really seem sufficient to achieve the desired effect.
For example, there is the condition that similar terms in various FSF
licenses attempt to restrict, in which the program is commanded to output
its own source code.


>
> ### F. Restrictions, requirements, and additional grant of permissions
>
> 1. When the Work is distributed to other user(s), whether directly or
> indirectly,
> the user(s) automatically receive a license from the copyright holder(s)
> and
> contributor(s). Termination of an individual or entity's license under
> Section B,
> Clause 2 does not affect any other user(s) license to use the Work, even
> if the
> user(s) received the Work from the entity or individual(s) that have had
> their
> license terminated.
>
> 2. Copyright holder(s) and distributors may not impose additional
> terms or requirements that restrict or remove any permissions or
> conditions of this
> license. Should additional terms or requirements be imposed, they may be
> disregarded
> as null and void.
>

I remain convinced that people got the phrase "null and void" from the
language on cereal box coupons, this being the legal language they were
most likely to read while young. My comments above about extra terms apply
here. Since this is fundamental to the Neo4J case, this is a place where a
professional who is following relevant cases should determine the language.


> However, the full terms and conditions of this license remain
> in effect.
>
> 3. Additional permissions may be granted by the copyright holder(s). These
> additional
> permissions are exceptions to one or more conditions of this license.
>

So, I've pointed out the issues to make a point about the concerns that
face license drafters who want to do the best job for the developers who
will use the license. However, I don't really see any merit in continuing
with this license text, it doesn't make a positive contribution to the
community that is as great as the cost of having yet another license, at
the moment, and it's difficult to see how it could be modified to make one.

    Thanks

    Bruce
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