[License-review] Sublicensing

Fri Sep 12 16:45:52 UTC 2014

Jim Wright wrote:

> And if you're a fan of strong copyleft, 
> this might not be a preferred outcome.

I am and remain a fan of copyleft. But I'm not a fan of overreach. If
"strong copyleft" implies that someone else can change the license I impose
on my works, then I'm not a fan of that.

Nearly 20 years ago I had a conversation with RMS about this. We both
understood that commercial companies frequently impose onerous conditions on
the environments in which their software can be used. As Eben reminds us,
even Nimmer approves the legality of such practices. It is possible to write
copyright licenses that allow use of works only by those agile folks who can
stand on their heads and whistle Dixie while running Java code under Linux.
But that ain't FOSS! And even RMS understood that if he wrote a version of
GPL that reached that far, he'd have no licensees.

Further to the point of this thread: Sublicensing exists. It is explicit in
some FOSS licenses, disallowed in others. Neither of us will affect that
reality. But you're the one proposing a new license, so I think the real
question for you is: Why do you want me to allow you (a distributor) to
sublicense my work given that I've already directly granted you (and
everyone downstream) all 17 U.S.C. 106 rights? Remember, as Pam Chestek
noted, I'd be giving up privity for this, so you should make a better case
than "I want it."

/Larry

Lawrence Rosen

Rosenlaw & Einschlag ( <http://www.rosenlaw.com/> www.rosenlaw.com) 

3001 King Ranch Rd., Ukiah, CA 95482

Cell: 707-478-8932 

LinkedIn:  <http://lnkd.in/D9CWhD> http://lnkd.in/D9CWhD 

From: Jim Wright [mailto:jim.wright at oracle.com] 
Sent: Friday, September 12, 2014 8:49 AM
To: lrosen at rosenlaw.com; License submissions for OSI review
Subject: Re: [License-review] Sublicensing

I'm not sure why the fact that *some* FOSS licenses are always directly from
the original copyright holder (because that is clearly stated in the license
terms) necessarily dictates that this is the case for *all* FOSS licenses.
MIT, by example, expressly states that sublicensing is permitted
(sublicensing being defined as a new license issued by a licensee rather
than the original copyright holder).  Others are silent on the issue and
commonly interpreted to permit it.

While a downstream recipient may be unable to avoid the conditions of the
license if that's how it's drafted, the existence of conditions or
pass-through terms in a license does not mean that permitted sublicenses
must otherwise duplicate the entire set of terms and rights of the original
license.  (In a commercial licensing context, sublicenses of more limited
sets of rights are often expressly contemplated, this is commonplace and I
don't think the point is controversial
)

So if it's the case that sublicensing is permitted at least in some cases,
why is that a good thing rather than a bad thing?  Well, it seems to me to
be what allows the mechanics of copyleft license compatibility to work at a
fundamental level - if I cannot sublicense a copy of an MIT licensed header
file to a subsequent recipient under the GPLv2, I don't know how I can
include that header file in a GPLv2 licensed c file and then distribute the
compiled object file and corresponding source, because the recipient of the
combined module needs to get "each and every part" under the GPLv2.  If you
can't sublicense, strong copyleft becomes materially more difficult to
navigate, at least on some execution platforms. 

I understand the perspective that as long as you're distributing the source
and notices to everything, few will complain, but that doesn't mean no one
will - and beyond that, if we foster an environment where copyleft
requirements are not subject to strict compliance as long as all the source
is released, maybe that's ok, but it seems to me this may cultivate a
culture which weakens the strength of how copyleft licenses are interpreted
and implemented generally, which will bleed over into commercial use as well
to the extent it hasn't already.   And if you're a fan of strong copyleft,
this might not be a preferred outcome.

 Best,

  J

On Sep 11, 2014, at 8:49 AM, Lawrence Rosen <lrosen at rosenlaw.com
<mailto:lrosen at rosenlaw.com> > wrote:

Hi Pam,

You raise a good point. Why would we encourage sublicensing then, if there
is no privity by which to enforce the covenants in the FOSS license?

FOSS licenses are direct from the copyright owner to the ultimate licensee.
For example, GPLv3 § 10 expressly avoids sublicensing: "Each time you convey
a covered work, the recipient automatically receives a license from the
original licensors, to run, modify and propagate that work, subject to this
License." [Emphasis added.]

That give the licensor all the privity he needs to enforce his license
against each and every licensee. No intermediary commercial distributor can
then interfere with the freedoms or the obligations (conditions or
covenants) associated with that license.

IOW, sublicensing hurts. It doesn't help anyone except an intermediary
distributor who can distribute commercial software with hidden FOSS
components.

/Larry

-----Original Message-----
From: Pamela Chestek [mailto:pamela@ <http://chesteklegal.com/>
chesteklegal.com] 
Sent: Thursday, September 11, 2014 6:22 AM
To:  <mailto:license-review at opensource.org> license-review at opensource.org
Subject: Re: [License-review] Sublicensing

Changing subject line ...

On 9/9/2014 5:04 PM, Lawrence Rosen wrote:

> Once we agree on those basic principles, then it is fair to ask

> whether "sublicensing" actually provides anything different or whether

> it is an ancient commercial licensing word that was thrown into the

> MIT and other licenses among the 17 USC 106 "copyright rights"

> actually being licensed for no important purpose.

I believe the difference will be whether the downstream recipient is obliged
to satisfy the covenants of the license versus the conditions.

One can only sublicense the rights one has, so if the original grant has
conditions on the grant, then the sublicensee will also be obliged to
satisfy the same conditions. However, to the extent the license has
covenants, those are a creature of contract only, and since there is no
privity between the original licensor and sublicensee, the sublicensee
wouldn't be obliged to satisfy the covenants.

Pam

Pamela S. Chestek, Esq.

Chestek Legal

PO Box 2492

Raleigh, NC 27602

919-800-8033

 <mailto:pamela at chesteklegal.com> pamela at chesteklegal.com

 <http://www.chesteklegal.com/> www.chesteklegal.com

PGP key 246A430A

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