[License-review] For approval - Russian Permissive Free Software Licence

Vladimir Slyshchenkov vaslys at hotmail.com
Wed Mar 19 18:51:55 UTC 2014


Hi Henrik, 

First, thank you very much for your e-mail and your attention to this issue.
I am a lawyer, not a programmer, and I am fascinated by FOSS approaches from
legal perspective. My understanding is that FOSS licenses have brought a new
legal mechanism which help to overcome certain negative trends of
traditional copyright. FOSS seemingly provides a more adequate and fair
solution for the world in which information and access to information
becomes more and more important. Hence, FOSS approaches deserve to be
implemented and supported, and appropriate license documents are not
insignificant for this purpose. It is my pleasure to work with OSI License
Review at evaluation of this new license. 

Please, find below my responses to your questions (for easy reading the
questions are repeated):

1.  With this in mind, the first question would be, how could international
users consume and reuse code under the RPFSL? - 

As you have noted the license (the RSL) is permissive, it hence allows the
international uses to freely use the code and license the code or the
modifications further under any other license (section 1.2). 

On a separate note, it is possible to apply in Russia the GPL or other
popular licenses, and they are actually applied, but from practical
perspective it is sometimes problematic. The below outlines of my
understanding of the current background might show in better detail the
legal position of the popular licenses and the rationale behind the new
license: 

(i) at present the Russian legal environment is specific, the legal and
commercial practice is too often overburden with formalities and hostile to
new devices and approaches; 
(ii) the popular licenses are written in English and contain some rules
which are not very well known to the Russian public or require very accurate
and delicate legal interpretation to make them understandable or applicable
in light of Russian laws; 
(iii) from the above follows that practical application of the popular
licenses (to concrete programs) either require substantial efforts and
resources (for translation into Russian, explanation and interpretation,
etc.) or such application occurs without actual understanding by the parties
of the terms and conditions; 
(iv) these difficulties of practical implementation of the popular licenses
create obstacles for smooth implementation and establishment of FOSS
principles in Russia; 
(v) the new license is drafted in Russian and under Russian laws
specifically with the purpose to provide unquestionable  legal instrument
mostly for Russian developers and users who for some reasons cautiously view
popular licenses either because they do not fully understand them or because
they expect practical problems with their application; 
(vi) the new license can be viewed as a 'localization' of FOSS principles
and approaches; as such the RSL shall assist to better knowledge of legal
issues of FOSS among Russian public, in my submission this shall eventually
facilitate using in Russia also the popular foreign FOSS licenses. 

2. (a) My question here is, who do you expect to be primarily using the
RPFSL? 

In my estimation  at present the big local FOSS manufactures mostly focus on
special needs of public customers (the state or the municipalities) or
comparatively large orders from commercial companies. These are the
customers for whom good licensing documents are important. If the original
license to the code used by the Russian FOSS manufacturer does not have a
copyleft provision, the manufacturer can on case-by-case basis license its
FOSS product to such customer under the RSL. 

But more importantly the new license can be helpful to individual developers
in Russia who wish to make their products popular and wide-known. If in each
particular case the original license to the received code permits the other
downstream license, such individual developer might turn to the RSL because
it is written in Russian, it is comparatively simple and adjusted to local
laws and terminology. In my view such individual developers can become
primary users of the new license, provided the license is generally accepted
by the community. 

(b) Would the adoption of this license primarily cause more FOSS software to
be released that wouldn't be released without this license? 

My presentation in April 2013 on the annual Russian Open Source Summit was
dedicated to the prospects of the Russian FOSS license. In their summary of
the issues discussed at the conference the organizing committee referred to
the Russian ROSS license emphasizing that absence of such license is a
"problem" and without solution of the problem "deployment of FOSS will be
only fragmentary" (in Russian:
http://www.pcweek.ru/foss/conference/ross2013/). My response to this
question is hence positive. 

(c) Or would it cause regular Russian FOSS developers to use this license
instead of more popular FOSS licenses (thus increasing unwanted license
proliferation)?

It might be that some Russian developers start using the new license when
distributing their programs. However, given the license is only permissive,
such use of the license instead of popular FOSS licenses shall not create a
closed community. Moreover, in these specific circumstances the advantages
from using the RSL are expected to outweigh negative implications of the
proliferation. 

3. Is the RPFSL similarly compatible with some internationally used and
popular FOSS licenses? 

The license permits downstream re-licensing under any license, including any
other free license. This is expressly determined by section 1.2. Hence, the
RSL does not prohibit re-release of the code received under the RSL under
any other FOSS license, permissive or copyleft. 

4. Finally, your last clause seem to designate as the competent court of law
1) a court operating within the laws of Russian Federation, 2) at the place
of residence of the defendant. Assuming I'm the defendant in a dispute, and
live in Finland, how would this clause be interpreted?

Section 7.5 makes the license subject to Russian laws. This is a choice of
law clause which determines laws of which country shall regulate
relationship of the parties. In absence of such express clause in
cross-border contracts and transactions a choice of law is regulated by
special legislative rules of the respective country (so-called 'conflict of
laws rules'). In other words, in absence of the express choice of law clause
the court will decide (based upon the local conflict of laws rules) laws of
which country shall be applied. And such applicable laws will not always be
the laws of the country in which the given court is situated. For example,
in cross-border licenses the applicable laws might become the laws of the
country of the licensee even if the court is situated in the country of the
licensor. 

Choice of law is different from choice of competent court. For example, if
you are a defendant, under section 7.5. the competent court will be a court
in Finland in your place of residence. However, this court will apply
Russian law when resolving the dispute. The court will certainly apply
Russian substantive, not procedural, laws. In other words, the court will
have to interpret and apply the provisions of the Russian Civil Code on form
of licenses, offer and acceptance, rights and obligations of the licensee
and the licensor  or other provisions (which Russian provisions will be
interpreted and applied depends on the subject-matter of the dispute). But
court procedures (hearing process, appeal, cassation, etc.) will be governed
only by the Finnish legislation. For details you might wish to look through
http://en.wikipedia.org/wiki/Choice_of_law  

Such difference between the applicable law and competent court is not
welcome, but it sometimes happens in cross-border transactions. There is a
logic in determining the defendant's court as the competent court, the same
approach, for example, has been taken by MPL 2.0 (section 8). With respect
to the Russian applicable law, as the RSL has been drafted specifically
under Russian law and for Russian developers, it seemed feasible to make the
license subject to the Russian law irrespective of the country of residence
of the parties. With respect to other FOSS licenses, a choice of law clause
is present, for example, in EPLv1.0, under which a difference between the
applicable law and competent court is also possible (at least as I read it:
as EPLv1.0 determines the US law as the applicable law but does not
expressly determine the competent court, in principle court of any country
can establish its competence over the dispute brought before this court). 

Thank you. Please, let me know if you have any questions. 

Vladimir. 

-----Original Message-----
From: license-review-bounces at opensource.org
[mailto:license-review-bounces at opensource.org] On Behalf Of Henrik Ingo
Sent: Tuesday, March 18, 2014 12:49 AM
To: License submissions for OSI review
Subject: Re: [License-review] For approval - Russian Permissive Free
Software Licence

Hi Vladimir

Without focusing on the actual text of the proposed license, I'd like to
inquire further into the need for this license to exist.

It seems that with the exception of two licenses coming out of the EU, it is
rather rare to develop licenses for a specific jurisdiction. In fact many
would argue, and in my observation this includes FSF as the author of the
GPL family of licenses, that they specifically want their licenses to be
applied globally and reject adding a choice of law clause. With this in
mind, the first question would be, how could international users consume and
reuse code under the RPFSL?
 - Maybe because it is a permissive license this is not a problem, but it
would still be good to have a discussion ensuring those of us not experts in
Russian copyright law, that the license in fact does facilitate that.

In the case of the EU authored license EUPL, it seems it is primarily
intended to be used by the EU administration or possible nation state
administrations. In this light it could be argued it is of net-benefit to
the FOSS community, as it hopefully causes more open source software to be
released. Otoh it does not make the license proliferation situation worse,
since other parties are not actively encouraged to use it. My question here
is, who do you expect to be primarily using the RPFSL? Would the adoption of
this license primarily cause more FOSS software to be released that wouldn't
be released without this license? Or would it cause regular Russian FOSS
developers to use this license instead of more popular FOSS licenses (thus
increasing unwanted license proliferation)?

And most importantly, the EUPL is designed to explicitly make it "downstream
compatible" with other popular FOSS licenses, such as GPLv2. Hence someone
developing (for example) GPLv2 software can safely copy EUPL code and just
use it as if it were GPLv2 and ignore the fact he might not fully understand
the EUPL license itself, nor copyright law in EU states. (At least that's
how I always understood the motivation behind EUPL, others will correct me
if this is totally
wrong.) Is the RPFSL similarly compatible with some internationally used and
popular FOSS licenses? (In your case you could probably target Apache or
some similar permissive license?)

Finally, your last clause seem to designate as the competent court of law 1)
a court operating within the laws of Russian Federation, 2) at the place of
residence of the defendant. Assuming I'm the defendant in a dispute, and
live in Finland, how would this clause be interpreted?

henrik, finland



On Sun, Mar 16, 2014 at 1:03 PM, Vladimir Slyshchenkov <vaslys at hotmail.com>
wrote:
> Hi,
>
>
>
> This is to formally submit for OSI License Review a new FOSS license, 
> Russian Permissive Free Software Licence (RSL). A plain text copy of 
> the license in Russian and English is attached. There is explanation 
> on application of the license before the terms and conditions, this 
> explanation is not part of the license text.
>
>
>
> The license was drafted by me upon my own initiative, the drafting 
> process and the drafts of the license were open for discussion by the 
> FOSS community in Russia. The public discussion forums (in Russian):
> http://www.siberium.ru/web/community/blog and 
> http://www.pcweek.ru/foss/forum/forum32/topic7576/. My presentation 
> (in
> Russian) on legal issues of FOSS and the prospects of a Russian FOSS 
> license made at Russian Open Source Summit (April 2013):
> http://www.pcweek.ru/foss/conference/ross2013/slyshhenkov.pdf .
>
>
>
> Supporting data:
>
>
>
> 1.      Rationale: The license represents a legal document specifically
> drafted under Russian law in order to facilitate distribution of free 
> and open software mostly in the Russian legal environment. It is 
> submitted that compared to various popular licenses drafted under US 
> law (or under laws of other countries) the RSL could be easier 
> accepted and applied by Russian developers and software users. The 
> license shall contribute to smooth implementation of principles of 
> FOSS into specific legal system and legal practice in Russia. Such 
> effective implementation could be better achieved by way of a license 
> which contains legal terminology, legal devices and approaches 
> generally known to the Russian public. The RSL is hence made 
> bilingual, in Russian and English. The license aims not to replace 
> other FOSS licenses (this is often practically or legally impossible) 
> but to provide a clearer legal framework and additional  opportunities for
development of FOSS in Russia.
>
> 2.      Distinguish: The RSL is a permissive, not copyleft, license. The
> license provides for free redistribution and access to the source 
> code, and allows modifications and derivative works (sections 1.1, 1.2 
> and 2.3). But the license does not request the program remains free 
> and open when re-distributed.
>
> 3.      Legal review: There was no legal review or analysis of this
license
> made by third parties.
>
> 4.      Proliferation category:  Special purpose licenses.
>
>
>
> Thanks in advance for your evaluation and feedback, comments or 
> amendments to the license.
>
>
>
> Vladimir.
>
>
> _______________________________________________
> License-review mailing list
> License-review at opensource.org
> http://projects.opensource.org/cgi-bin/mailman/listinfo/license-review
>



--
henrik.ingo at avoinelama.fi
+358-40-5697354        skype: henrik.ingo            irc: hingo
www.openlife.cc

My LinkedIn profile: http://fi.linkedin.com/pub/henrik-ingo/3/232/8a7
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