Request For Approval: Iggy Wanna Licence

[Lawrence Rosen]

Brendan Scott wrote:
> OKL's intention was that redistributors should not be able to avoid the
> licence by interposing an interface layer.  Arguably, the GPL has a
> similar action in this respect.[1]   While it is the intention of OKL to
> use the licence for its kernel that should not affect whether or not the
> licence is OSD-compliant.
> [1] As evidenced by Mr Torvald's "user programs that use kernel services
> by normal system calls" clarification in the Linux kernel's COPYING files.
> See also the FSF's interpretation of "derivative work" under the GPL.

The use of copyright to control the context in which functional free
software is used is possible copyright abuse. Arguably, the FSF's
interpretation of the GPL is wrong and Mr. Torvald's statement is irrelevant
to the actual interpretation of the GPL under copyright law. It is also an
improper attempt to apply copyright to those aspects of computer software
that are *not* copyrightable. 17 USC 102(b). 

There is nothing under copyright law that would prevent anyone from
"interposing an interface layer" to make open source software function. That
can only be done by a contractual provision that is not present in any open
source license, or by a patent claim that would make such functionality a
patent infringement.

See the extensive discussion of this legal point in the archives at
open-bar.org. 

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 * cell: 707-478-8932 * fax: 707-485-1243
Skype: LawrenceRosen
Author of "Open Source Licensing: Software Freedom and 
                Intellectual Property Law" (Prentice Hall 2004)

> -----Original Message-----
> From: Brendan Scott [mailto:lists at opensourcelaw.biz]
> Sent: Monday, May 26, 2008 12:20 AM
> To: license-review at opensource.org
> Cc: bruce at perens.com
> Subject: Re: Request For Approval: Iggy Wanna Licence
> 
> Dear Mr Perens
> 
> Thank you for the comments on the Iggy Wanna Licence (IWL) you have made
> in the following two posts:
> http://www.crynwr.com/cgi-bin/ezmlm-cgi?17:mss:236:mnoaiekgfckojngkngna
> http://www.crynwr.com/cgi-bin/ezmlm-
> cgi?17:mss:237:200805:mnoaiekgfckojngkngna
> 
> In response to your query, Open Kernel Labs (OKL) is making a serious
> request for approval.
> 
> You have raised an issue in respect of paragraph 1(c)(ii).  The relevant
> wording from the SleepyCat License is:
> 
> "Redistributions in any form must be accompanied by information on how to
> obtain complete source code for the DB software and any accompanying
> software that uses the DB software."
> 
> The corresponding wording in the IWL is:
> "Redistributions in any form must be accompanied by information on how to
> obtain complete source code for:  (i) the Software; and (ii) all
> accompanying software that uses (or is intended to use) the Software
> whether directly or indirectly."
> 
> The relevant difference is between:
> (a) "any accompanying software that uses the DB software"; and
> (b) "all accompanying software that uses (or is intended to use) the
> Software whether directly or indirectly."
> 
> OKL's intention was that redistributors should not be able to avoid the
> licence by interposing an interface layer.  Arguably, the GPL has a
> similar action in this respect.[1]   While it is the intention of OKL to
> use the licence for its kernel that should not affect whether or not the
> licence is OSD-compliant.
> 
> In respect of your argument about browsers accessing a web server.  OKL
> does not believe that those browsers would be caught by the licence terms
> because the clause applies to "accompanying software" in the context of a
> redistribution.  In the example given the browsers would not be
> "accompanying software".  If they were caught, it is not clear why a
> violation of OSD#6 (No Discrimination Against Fields of Endeavor) would
> follow.
> 
> You have commented on the rights of use under copyright law.  OKL does not
> intend that the licence be tied to the copyright law of a specific
> jurisdiction (eg US).
> 
> 
> Brendan
> 
> 
> [1] As evidenced by Mr Torvald's "user programs that use kernel services
> by normal system calls" clarification in the Linux kernel's COPYING files.
> See also the FSF's interpretation of "derivative work" under the GPL.