[License-review] License-review Digest, Vol 60, Issue 6

Christian Solmecke solmecke at wbs-law.de
Sat Sep 23 05:46:45 UTC 2017


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Mit freundlichen Grüßen

Christian Solmecke

-------------------------------
Christian Solmecke, LL.M.
Rechtsanwalt

WILDE BEUGER SOLMECKE
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Am 23.09.2017 um 03:33 schrieb "license-review-request at opensource.org<mailto:license-review-request at opensource.org>" <license-review-request at opensource.org<mailto:license-review-request at opensource.org>>:

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Today's Topics:

  1. Re: For Approval: License Zero Reciprocal Public License
     (Richard Fontana)
  2. Re: For Approval: License Zero Reciprocal Public License
     (Josh berkus)
  3. Re: For Approval: License Zero Reciprocal Public License
     (Kyle Mitchell)
  4. Re: For Approval: License Zero Reciprocal Public License
     (Kyle Mitchell)
  5. Re: For Approval: License Zero Reciprocal Public License
     (Josh berkus)
  6. Re: For Approval: License Zero Reciprocal Public License
     (Kyle Mitchell)


----------------------------------------------------------------------

Message: 1
Date: Fri, 22 Sep 2017 20:30:17 -0400
From: Richard Fontana <fontana at sharpeleven.org<mailto:fontana at sharpeleven.org>>
To: license-review at opensource.org<mailto:license-review at opensource.org>
Subject: Re: [License-review] For Approval: License Zero Reciprocal
       Public License
Message-ID:
       <1506126617.1315966.1115452640.69727340 at webmail.messagingengine.com<mailto:1506126617.1315966.1115452640.69727340 at webmail.messagingengine.com>>
Content-Type: text/plain; charset="utf-8"

Kyle, yes please re-send or paste the relevant content from the prior
message.

Thanks!

Richard


On Fri, Sep 22, 2017, at 08:22 PM, Kyle Mitchell wrote:
Richard,

Thanks for your message.  Sounds like somebody's
server ate my e-mail.

Would you like me to resend my prior message, or
perhaps paste its content into a reply?  I have
the proper answers to the intro, rationale,
distinctiveness, review, and proliferation
questions ready to go.

Best,

K

--
Kyle Mitchell, attorney // Oakland // (510) 712 - 0933
_______________________________________________
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------------------------------

Message: 2
Date: Fri, 22 Sep 2017 17:37:22 -0700
From: Josh berkus <josh at postgresql.org<mailto:josh at postgresql.org>>
To: License submissions for OSI review
       <license-review at opensource.org<mailto:license-review at opensource.org>>, Kyle Mitchell <kyle at kemitchell.com<mailto:kyle at kemitchell.com>>
Subject: Re: [License-review] For Approval: License Zero Reciprocal
       Public License
Message-ID: <852a278a-e1f7-c749-8ec9-d856084131de at postgresql.org<mailto:852a278a-e1f7-c749-8ec9-d856084131de at postgresql.org>>
Content-Type: text/plain; charset=utf-8

On 09/22/2017 05:09 PM, Kyle Mitchell wrote:
3.  Uses in the execution or development of any computer program, the
   entire source code of which is not published and publicly licensed
   under licenses approved by the Open Source Initiative, must be
   limited to a period of <Grace Period> consecutive calendar days. This
   condition is waived if licenses permitting those uses cease to be
   available via the following agent, or a successor named in a
   subsequent release, for <Waiver Period> consecutive calendar days:

       <Agent Information>

This is a fascinating clause, and I would like to hear the reasoning
behind it, both legal and usage.

--Josh Berkus


------------------------------

Message: 3
Date: Fri, 22 Sep 2017 17:52:17 -0700
From: Kyle Mitchell <kyle at kemitchell.com<mailto:kyle at kemitchell.com>>
To: License submissions for OSI review <license-review at opensource.org<mailto:license-review at opensource.org>>
Subject: Re: [License-review] For Approval: License Zero Reciprocal
       Public License
Message-ID: <20170923005217.GB9012 at dev.kemitchell.com<mailto:20170923005217.GB9012 at dev.kemitchell.com>>
Content-Type: text/plain; charset=utf-8

A quick bit of procedural history:  My
original message to license-review didn't get
delivered, for whatever reason.  A follow-up did.
This reply reproduces my initial responses to the
new-license questionnaire, along with with the
most recent text of the proposed license.

Submission:

I am submitting the License Zero Reciprocal Public
License (L0-R) for approval as an Open Source
license on behalf of Artless Devices LLC.  Artless
Devices LLC is a California business entity, and I
am its sole member and manager. The company
operates licensezero.com<http://licensezero.com>, a software
dual-licensing and relicensing agency.


Rationale:

L0-R aims to implement a clear and
stronger-than-strong variant of copyleft,
minimizing community-side legal pondering and
maximizing dual-licensing opportunity.


Distinguish:

1. L0-R is based on BSD-2-Clause.  L0-R adds
  metadata to the copyright notice, a notice of
  source code availability, obligations to retain
  the new notice, and a new, third, copyleft
  condition.

2. L0-R sits with the stronger copyleft licenses,
  such as GPL and AGPL.  L0-R's trigger for
  copyleft breaks sooner, on "execution" or
  "development" of software with the licensed work,
  rather than distribution or provision over a
  network.  L0-R's copyleft obligations are both
  stronger and weaker.  Subject software must be
  published as source code, but can be licensed
  under any combination of OSI-approved terms.

3. L0-R stands distinct from all Open Source
  licenses of which I'm aware in three lesser
  respects.  First, it directs licensees to an
  agent for sale of alternative licenses.
  Second, it sets up automatic waiver of its
  copyleft condition in the event alternative
  licenses cease to be available.  Third,
  copyleft obligations kick in only after a
  grace period of some calendar days.

3. L0-R grew out of a prior license, the License
  Zero Noncommercial Public License (L0-NC), also
  based on BSD-2-Clause:

  https://licensezero.com/licenses/noncommercial/diff

  L0-NC is clearly _not_ Open Source, though it
  reverts more directly back to an unmodified
  BSD-2-Clause by effect of its automatic waiver.


Legal Review:

I am a licensing lawyer, I took the first drafts,
and I made the first revisions.  I've been
fortunate to receive very generous private
feedback from fellow attorneys, but I will stand
behind this proposal alone.


Proliferation Category:

Other (with a follow-on question)

L0-R is not yet in wide current use, evidencing a well
known chicken-and-egg problem ... and a nice
structural brake on needless proliferation.  I
believe L0-R does enough that's new and useful to
warrant review.  I believe it would proliferate
new ideas.

I would also be interested in the correct process
for, and results of, reviewing L0-R terms assuming
automatic waiver of condition 3, by its own terms.
I suspect those terms would be classed "Redundant",
especially of BSD-2-Clause, despite the added
source-availability notice.


Plain Text:

The plain text of the license follows.  This text
is _not_ final, and I look forward to feedback.
Text set <like this> denotes a placeholder.  I'm
by no means wedded to that convention.


License Zero Reciprocal Public License <Version>

Copyright <Name>
         <Jurisdiction> (ISO 3166-2)

         Ed25519: <Public Key>

Source code is available at:
<Repository>

Redistribution and use in source and binary forms, with or without
modification, are permitted provided that the following conditions
are met:

1.  Redistributions of source code must retain the above copyright
   and source availability notices, this list of conditions and the
   following disclaimer.

2.  Redistributions in binary form must reproduce the above copyright
   and source availability notices, this list of conditions and the
   following disclaimer in the documentation and/or other materials
   provided with the distribution.

3.  Uses in the execution or development of any computer program, the
   entire source code of which is not published and publicly licensed
   under licenses approved by the Open Source Initiative, must be
   limited to a period of <Grace Period> consecutive calendar days. This
   condition is waived if licenses permitting those uses cease to be
   available via the following agent, or a successor named in a
   subsequent release, for <Waiver Period> consecutive calendar days:

       <Agent Information>

THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS
"AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT
HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE,
DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT
(INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE
OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.


Sincerest thanks to all for time and input.

Best,

K

--
Kyle Mitchell, attorney // Oakland // (510) 712 - 0933


------------------------------

Message: 4
Date: Fri, 22 Sep 2017 18:19:09 -0700
From: Kyle Mitchell <kyle at kemitchell.com<mailto:kyle at kemitchell.com>>
To: Josh berkus <josh at postgresql.org<mailto:josh at postgresql.org>>
Cc: License submissions for OSI review <license-review at opensource.org<mailto:license-review at opensource.org>>
Subject: Re: [License-review] For Approval: License Zero Reciprocal
       Public License
Message-ID: <20170923011909.GC9012 at dev.kemitchell.com<mailto:20170923011909.GC9012 at dev.kemitchell.com>>
Content-Type: text/plain; charset=utf-8

Josh,

Thanks for your time, and your interest.

I've just responded to the thread with a copy of
my responses to the standard new-license
questionnaire.  I hope some of your answers are
there, at least on a general level.

But since condition 3 is exactly where I suspect
all the action will be, a few notes more, deeper
in the weeds of implementation:

Condition 3 aims to implement a kind of copyleft
condition.  It shares the approach of prior
implementations in focusing on source code
availability and licensing terms.  It's highly
self-contained, sounding in the point Larry Rosen
made with OSL-versus-AFL.

Compared to the GPL and even AGPL, the "trigger"
for copyleft fires more easily.  Rather than focus
on distribution and modification, the language
hooks into use: "execution" and "development" of
software.  This encompasses provision over a
network---via "execution"---as under AGPL.  It
goes further, extending the share-alike aspects of
the condition to changes made for internal use,
for example.

Once you've triggered the condition, the
requirements are both more and less exacting than
what we see in current mainstream copyleft
licenses.

On the access-to-source front, L0-R requires
_publication_ of source, not just provision to
users.  That burden's substantially mitigated by
the availability of free source distribution
online.  Many GPL licensees satisfy source
provision by "access ... from a network server at
no charge" today, anyway.  Cheaper than media!

On the license-alike front, L0-R requires less
than current copyleft licenses, which prescribe
the same terms, perhaps with a relicensing or
express cross-compatibility "out" for specific,
sister licenses, like (A)GPL-3.0 section 13.  L0-R
permits any combination of OSI-approved terms for
implicated programs.

If there's any place where I would most appreciate
feedback, it's on how this approach plays out
where we see license compatibility issues now.  My
hope is that it substantially reduces developer
compat head scratching, perhaps at the price of an
opportunity for skulduggery in licensees' choice
of an obscure or otherwise unfortunate
OSI-approved license to achieve compliance.  I
have my own little "test suite" of hypotheticals
to run through on it, but it's hard to get these
rights, and I can't pretend my suite's complete.

All of this is mitigated by a "grace period" of a
set number of calendar days.  Licensees can make
otherwise noncompliant uses of the L0-R software
for that period.

The last sentence implements an automatic waiver
of the copyleft condition in the event the
licensor stops offering alternative licenses that
_do_ permit uses executing and developing non-OSI,
source-not-available software.  In other words, if
the licensor stops dual licensing the code for a
set period, condition 3 writes itself out of the
license, substantially undoing the "patch" to
BSD-2-Clause.  The only remaining difference is an
obligation to reproduce the notice of where source
code is available.

Best,

K

--
Kyle Mitchell, attorney // Oakland // (510) 712 - 0933


------------------------------

Message: 5
Date: Fri, 22 Sep 2017 18:24:14 -0700
From: Josh berkus <josh at postgresql.org<mailto:josh at postgresql.org>>
To: Kyle Mitchell <kyle at kemitchell.com<mailto:kyle at kemitchell.com>>
Cc: License submissions for OSI review <license-review at opensource.org<mailto:license-review at opensource.org>>
Subject: Re: [License-review] For Approval: License Zero Reciprocal
       Public License
Message-ID: <dc507b22-57f0-e04c-cb64-bbff0a62fe78 at postgresql.org<mailto:dc507b22-57f0-e04c-cb64-bbff0a62fe78 at postgresql.org>>
Content-Type: text/plain; charset=utf-8

On 09/22/2017 06:19 PM, Kyle Mitchell wrote:
The last sentence implements an automatic waiver
of the copyleft condition in the event the
licensor stops offering alternative licenses that
_do_ permit uses executing and developing non-OSI,
source-not-available software.  In other words, if
the licensor stops dual licensing the code for a
set period, condition 3 writes itself out of the
license, substantially undoing the "patch" to
BSD-2-Clause.  The only remaining difference is an
obligation to reproduce the notice of where source
code is available.

I'll let the lawyers comment on whether the clause actually does what
you describe.  I'll say, as a software developer, that the wording there
is entirely baffling and I have no idea whatsoever what it requires of me.

Your explanation also doesn't explain the role of the "Agent".

--Josh


------------------------------

Message: 6
Date: Fri, 22 Sep 2017 18:33:03 -0700
From: Kyle Mitchell <kyle at kemitchell.com<mailto:kyle at kemitchell.com>>
To: Josh berkus <josh at postgresql.org<mailto:josh at postgresql.org>>
Cc: License submissions for OSI review <license-review at opensource.org<mailto:license-review at opensource.org>>
Subject: Re: [License-review] For Approval: License Zero Reciprocal
       Public License
Message-ID: <20170923013303.GD9012 at dev.kemitchell.com<mailto:20170923013303.GD9012 at dev.kemitchell.com>>
Content-Type: text/plain; charset=utf-8

Josh,

Thanks again.

I don't mean to baffle.  Ideally, the license
terms would explain themselves.  But that's in
great tension with keeping things short, BSD
style.  I'll end up explaining what this condition
does, one way or another.  So I appreciate your
feedback on the challenge I have ahead of me.

The role of the agent under L0-R is to vend
licenses that allow what the public license
prohibits.  A company dual licensing software may
publish source under the terms of GPL or AGPL, but
offer licenses without copyleft requirements for a
fee.  If the company delegates the job of vending
those licenses to another, that "other" acts as
the company's "agent".

--
Kyle Mitchell, attorney // Oakland // (510) 712 - 0933


------------------------------

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