[License-review] ESA-PL: two issues

[Richard Fontana]

As promised last week, here are two concerns I have with the ESA-PL
(reference: 

First,  section 7 says:

"If You have knowledge that exercising rights granted by this License
infringes third party's intellectual property rights, including without
limitation copyright and patent rights, You must:
(a) take reasonable steps (such as notifying appropriate mailing lists
or newsgroups) to inform ESA and those who received the Software about
the infringement; and
(b) cease infringing uses of the Software until You have been granted or
have otherwise acquired the respective rights or modified the Software
so that the Modification is non-infringing."

7a itself is questionable but there is some precedent for open source
licenses with similar provisions. 7b however is the first instance I can
recall seeing of a putative open source license attempting to police
third-party infringement. I am concerned that there could be situations
where the most appropriate thing for a licensee to do is to continue
activity that might be considered infringing and where it would be
unjustifiable for such activity to be a basis for losing the ESA-PL
license grant.  The provision also seems to assume that whether
infringement occurs or not is something that will be clear cut; in most
cases it probably won't be. 

If the response to this is 'OK but what provision of the OSD does that
violate', well, if you can lose your license on the pretext that by
exercising the open source license grants you failed to cease some form
of third-party infringement, then the open source license grant (and
therefore everything the OSD is supposed to guarantee) is sort of
meaningless. 

Second, section 4.4 says:

"4.4 The Software may include a "NOTICE" text file containing general
notices. Any Contributor can create such a NOTICE file or add notices to
it, alongside or as an addendum to the original text, provided that such
notices cannot be construed as modifying the License. If the Software
displays all or part of the notice file (e.g. in an "About" or "Release
Notes" window), Your Modifications must retain such display. However, if
the Software does not display such notice, You do not need to make it do
so."

The second part of this is is reminiscent of the widely-ignored GPLv2
2(c). The problem I see here is one that was raised by the OSI community
back in ~2007 during the badgeware crisis. What if the 'Software'
displays the notice file, but my Modifications are not susceptible to
displaying the notice (e.g. I have copied some code from the original in
a noninteractive program)? Either I can't comply with this provision or
I am forced to make my software capable of displaying the notice.  This
problem does not exist in GPLv2 (or the counterpart 'Appropriate Legal
Notices' provision of GPLv3). (I am not suggesting that ESA-PL is a
badgeware license, but that this provision raises some problems that
also existed historically in some badgeware licenses.)

Richard