[License-review] Submission of the European Space Agency Public Licenses (ESA-PL) for approval

Wed Dec 21 18:46:35 UTC 2016

Paragraph 7 seems to be adapted from MPL 1.1 section 3.4, which I
believe was the subject of criticism from a number of lawyers back
when that license was newer, and which I suspect has basically been
ignored by everyone else. Given that it was something of a failure or
no-op for MPL 1.1, and abandoned in MPL 2.0 (and the earlier CDDL), if
I'm remembering correctly, it is odd to see it being revived in a
modern license.

Paragraph 4.5 is arguably unreasonably burdensome for patent-holding
entities. I don't think I've seen a reporting requirement like this in
a putative open source license before.

Richard

On Wed, Dec 21, 2016 at 06:06:16PM +0000, Smith, McCoy wrote:
> Without commenting on the merits of the other provisions of this license, I'm curious about the requirements of paragraph 4.5 and 7.  Are those mandated by law in the EU or by the IPR rules of the ESA?  They seem to be a fairly powerful disincentive to use these licenses for most entities that would not be forced to use it (i.e., anyone other than the ESA).  I'm also curious as to how one measures the "knowledge" requirement that forces one to give notice and stop distribution.
> 
> -----Original Message-----
> From: License-review [mailto:license-review-bounces at opensource.org] On Behalf Of Carsten Gerlach
> Sent: Tuesday, December 20, 2016 9:48 AM
> To: license-review at opensource.org
> Subject: [License-review] Submission of the European Space Agency Public Licenses (ESA-PL) for approval
> 
> Dear OSI board members and license reviewers,
> 
> please allow me to submit on behalf of the European Space Agency (ESA) the European Space Agency Public Licenses (ESA-PL) for OSI approval.
> 
> There are three versions of the ESA-PL licenses, each with a different Copyleft scope, but otherwise identical provisions:
> - ESA-PL Strong: a strong Copyleft license, with the Copyleft scope comparable to the GPL/AGPL,
> - ESA-PL Weak: a weak Copyleft license, with the Copyleft scope comparable to the MPL,
> - ESA-PL Permissive: a non-Copyleft license.
> 
> Please find the license text attached as a plaintext copy and as a formatted PDF. Please find also attached as a PDF a supplementary "License Commentary", explaining the license clauses, the rationale behind each clause and comparisons with existing Open Source licenses.
> 
> 1. Rationale for a new license
> 
> Software development is of key importance for ESA. Through its industrial contracts and internal activities, ESA strives to maintain and increase its technical know-how and leadership regarding software development for space related applications and activities.
> 
> One of the challenges taken on board by ESA is the use and promotion of Open Source Software (OSS) in addition to software licensed in more traditional ways. Most development projects either use OSS components or are themselves already distributed under an OSS license. ESA wishes to support OSS and community-based development approaches in a way compatible with its mandate and overall legal framework.
> 
> The ESA-PL licenses are primarily intended to be used by ESA or ESA contractors for providing inhouse developments or industrial developments under ESA contracts to the general public as Open Source software. Depending on the use case and the rationale behind the publication, either a Copyleft or a Permissive license type may be appropriate.
> 
> The need for an ESA-specific Open Source license is primarily resulting from the special legal framework by which ESA is bound, in particular the ESA Convention and ESA's intellectual property (IPR) rules.  The ESA Convention requires in particular that the applicable law has to be the law of an ESA Member State and that the license includes an arbitration clause in accordance with the ESA Convention. Such provisions are not found in existing OSS licenses. The choice of law necessitates a particular wording of the license grant and the warranty and liability clauses (please see the attached license commentary for more details).
> 
> 2. Distinguish - compare to and contrast with the most similar OSI-approved license(s)
> 
> There are three versions of the ESA-PL licenses, each with a different Copyleft scope, but otherwise identical provisions:
> - ESA-PL Strong: a strong Copyleft license, with the Copyleft scope comparable to the GPL/AGPL,
> - ESA-PL Weak: a weak Copyleft license, with the Copyleft scope comparable to the MPL,
> - ESA-PL Permissive: a non-Copyleft license.
> 
> 3. Legal review: Describe any legal review the license has been through, and provide results of any legal analysis if available
> 
> The licenses were drafted by lawyers specialized in information technology and Open Source licensing law. As a result, the licenses were already drafted with the OSI Open Source definition in mind and are intended to comply with the OSI requirements. The licenses have been subject to review by ESA's legal department and licensing boards An extensive commentary, including a rationale for the license clauses and a comparison to existing OSS licenses and clauses, is attached to this submission as a "License Commentary".
> 
> 4. Proliferation category: Recommend which license proliferation category is appropriate
> 
> We would recommend the licenses to be categorized as "Special Purpose Licenses", as the licenses meet the special needs of the ESA as an non-governmental organization.
> 
> We hope that the licenses meet the criteria for OSI approval. Please let us know if there are any questions, comments or suggestions.
> 
> Best regards
> Carsten Gerlach
> --
> TCI Rechtsanwaelte Berlin
> Fasanenstr. 61, 10719 Berlin, Germany
> Tel: +49 30 2005420
> Fax: +49 30 20054211
> Registered in the partnership register at the Local Court of Berlin (Charlottenburg), PR No. 784
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