[License-review] For Approval: Rewrite of License Zero Reciprocal Public License

Smith, McCoy mccoy.smith at intel.com
Mon Nov 6 22:49:57 UTC 2017

Some comments below.  Richard and Bruce have raised other philosophical issues already, many of which I share so won't repeat; to the extent that I think there are other philosophical question, I've detailed them below.

>>**This software comes as is, without any warranty at all.
  As far as the law allows, those giving this license will
  not be liable for any damages related to this software or
  this license, for any kind of legal claim.**

Do you believe this to be sufficiently "conspicuous" to satisfy the requirements of, inter alia, UCC & UCITA?  Do you think this language is sufficient to properly disclaim the UCC & UCITA warranties of merchantability and for a particular purpose?  If not, is there a reason why (i.e., you don't think UCC or UCITA would apply here, or you just don't care about those two statutory provisions -- one widely adopted in the US, one not)?  There's a reason why fairly specific language, and the SHOUTING ALL CAPS, has become ubiquitous in open source disclaimers, and I'm curious if you believe that is unnecessary.

>>You may do everything with this software that would
  otherwise infringe copyright in this software, or any patent
  anyone giving this license has or obtains that would have
  read on this software just after any of their contributions,
  on these conditions:

Is there are reason why the statement about copyright is not limited to "anyone giving this license" but it is about patents?  Also, is there are reason for copyrights you use "infringe" but for patents you use "read on"?  The inconsistencies in language could result in inconsistent interpretations of the licenses granted.  Also, is "contribution" intended to encompass the original author's work, or just subsequent modifications?  Many licenses make it clear (via a definition) that both are included, but I wonder if you think such a definition is unnecessary because it would be understood and interpreted in that way.

>>2. You may not make any legal claim against anyone accusing
     this software, or any derivative work based on it, of
     infringing any patent that would read on this software
     alone, without modification or extension.

Is the subject of the verb "accusing" "You," or "anyone"?  The way this is written, it appears it is the latter (and makes the clause nonsensical:  "You can't sue for personal injury or defamation anyone who has made an accusation of patent infringement against this software"!).  I'd suggest more careful grammar.
Also, what is the difference between a "modification" and an "extension"?  "Modification" is one act that falls within the definition of a derivative work in 17 USC 101.   Extension does not.  I'd suggest you define the latter term if it is intended to describe something different.  If it is meant to mean the same thing, then you should use the correct 17 USC based terminology.

>>3. If you modify or extend this software, you must release
     source code for your modification or extension.

Same comment as above with regard to "extension" vs. modification.  

>>4. If you include this software in a larger piece of
     software, you must release any source code for that
     larger piece of software that has not yet been released.

Is "include" the meaning in everyday English (inter alia, "to take in or comprise as a part of a whole or group"), or in everyday computer programming?  If the latter, you should make that clear.  If the former, I think you have a potential OSD 9 problem, since this would dictate the licensing of software merely on the same medium.
Note that if you mean English "include" but also want to limit this requirement to non-distributed software (to get around the interesting anomaly in OSD 9 that it recites/possibly requires distribution), doesn't this suggest a rather odd OSD 9 avoidance loophole?  I.e., OSD 9 does not allow you to have a license that requires as a condition of distribution that software on the same medium be open source.  But surely that condition also applies in the circumstance for software on the same medium that is not distributed -- else one could avoid the requirement to disclose source by distributing the code.  This is one reason why I believe Richard's observation that Freedom Zero is inherently part of the OSD -- because if it is not, it results in rather bizarre results like allowing for licenses that require source disclosure for internal use, but which preclude that requirement for external use.
>>5. If you run this software to analyze, modify, or generate
     software, you must release source code for that software.

I will echo Bruce's comments on this part.  "Analyze" and "generate" are verbs, outside of the rights articulated in 17 USC (and also not entirely clear on their own) which in most instances would not require an exercise of the copyright rights of the "this" software (other than the Freedom Zero right to use/run).  I believe this to be a violation of OSD 9 (if not by its actual wording -- since it recites distribution -- then its logical implication, as outlined above).  "Modify" may require use of the "this" software (to the extent that modification results in creation of a derivative work of the "this" software;  in the instance when it is not, then it reverts back to the same problem (for example, a simple LZPL text editor used to write a piece of software but which does not import any of its own code into the created software -- this imposes conditions upon the created software as the result of doing nothing more than exercising the Freedom Zero right to privately run the licensed software.
Also, as a matter of drafting, you probably want to make clear the difference between the "this software" (i.e., that software licensed under LZPL) and the "other" software (i.e., that software upon which you are attempting to impose LZPL terms upon as a result of exercising the functions articulated in this provision).

>>To release source code, you must license it to the public
  under either these terms or terms approved by the Open
  Source Initiative, and promptly publish it, in the preferred
  form for making modifications, to a freely accessible
  distribution system widely used for similarly licensed
  source code.

"Terms or terms approved by the Open Source initiative" is a bit unclear -- this could mean a license which has gone through the license approval process within OSI, or the "terms" of the OSD.

>>Any unknowing failure to meet condition 3, 4, or 5 is
  excused if you release source code as required within 30
  days of becoming aware of the failure.

You might want to clarify that the "release [of] source code" articulated here are under the conditions above.


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