[License-review] ESA-PL: two issues

[Josh berkus]

On 04/06/2017 07:16 AM, Richard Fontana wrote:
> 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. 

Also, in many cases, it won't be possible to cease the infringing use of
the software without ceasing use of the software entirely.  And 7b
doesn't make any distinction between upstream infringement and
downstream infringement, which are really different cases.

I personally see 7b as a violation of the OSD, although it would take
some argument about which specific clause it violates (I'm thinking 1, 6
or 9).

--Josh Berkus