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

Wed Mar 19 22:43:06 UTC 2014

Hi Vladimir

Thank you for providing more context by way of replying to my
questions, in particular highlighting paragraph 1.2 wrt downstream
compatibility with other free licenses. I think we have now more than
exhausted my legal competence, and I will stand back to let others
review your proposal further.

henrik

On Wed, Mar 19, 2014 at 8:51 PM, Vladimir Slyshchenkov
<vaslys at hotmail.com> wrote:
> 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
> _______________________________________________
> 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