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

[Nigel T]

Kyle,

Even as one of the more pro-developer/pro-business voices on this list I
find your license problematic for both users and downstream developers and
I'm not certain that the initial developer really benefits all that much
either.

Whatever the intent, the license is it strikes me as a copyright-trap for
unsuspecting users.  An end-user could end up with software under L0-R for
which they could be sued for non-compliance because they couldn't produce
the source code for that software.

You also haven't shown how this license is better for the open source
developer (as opposed to the licensing agency) using a dual licensing
business model.  For non-compliant internal use in businesses without
external distribution you aren't going to even know it happens unless you
are going to engage in software audits.  If that's your intended business
model...good luck with that but I don't think OSI needs to help you.  If
that's not your business model then dual licensing using AGPL covers the
remaining use cases.

Or they can go the freemium or free trial route and use a proprietary
license. Most corporations don't care all that much about source
availability but the usefulness of the product.  Maintaining a codebase
internally can be a huge cost sink if technology is not their main line of
business (and sometimes even if it is) with no benefit if it doesn't offer
them any competitive advantages.

Essentially you're trying to finesse your way around having an OSI approved
NC license for your company (yes, I read your site).  Presumably because
nobody is accepting your existing L0 NC license as open source and you
don't think you can make using CC-BY-NC for software fly either.

Frankly, for both downstream users and developers a NC clause is much safer
than what you propose even if what constitutes NC use is occasionally
argued.

While I'm a fan of the inclusivity of CC for all kinds of Commons business
models including NC licenses, that's not the position of the OSI and I'm
going to agree with John.

Nice try, but no cigar.

Regards,

Nigel


On Sun, Sep 24, 2017 at 1:50 PM, Kyle Mitchell <kyle at kemitchell.com> wrote:

> John,
>
> Thanks again.  I think I understand your line of reasoning much better now.
>
> You're absolutely right that copyright owners cannot control every use,
> and that copyright misuse can kill a license.  Fair use is the classic
> category of meaningful exceptions.  And you're right to point out 17 USC
> 117 as another, specific to software.  But I think you overestimate what's
> protected under that section.  I think L0-R exercises rights well within
> what copyright affords.
>
> Broadly speaking, 117 permits the "owner of a copy of a computer program"
> to make copies and adaptations of software as "essential steps" in using it
> on some computer.  "Essential" is a high bar, but as a threshold matter,
> "owner of a copy" is not the same as "licensee".
>
> The licensed-not-sold concept comes up in two relevant places under US
> law, the "first sale doctrine" and the 117 limitation.  The one to read, as
> I see it, is Vernor v. Autodesk, 621 F.3d 1102 (9th Cir. 2010):
>
>   We read [three prior opinions] to prescribe three considerations that we
> may use to determine whether a software user is a licensee, rather than an
> owner of a copy.  First, we consider whether the copyright owner specifies
> that a user is granted a license.  Second, we consider whether the
> copyright owner significantly restricts the user's ability to transfer the
> software.  Finally, we consider whether the copyright owner imposes notable
> use restrictions.[Note 11]  ...
>
>   Note 11:  Although use restrictions were not dispositive in [the three
> prior opinions], we considered them in each case.  [Citations omitted.]
>
> Applying the test to L0-R, slightly out of order for clarity:
>
> 1.  L0-R is a license.
>
> 3.  L0-R imposes a very notable use restriction, a time limit on use with
> other than published Open Source.
>
> 2.  Redistribution, source and binary, is subjected to conditions that
> ensure the use restriction applies to each recipient.
>
> At least as I read it, the law does not rigidly couple
> copy-for-distribution to copy-for-use.  It's possible to permit
> distribution---conditions 1 and 2 of L0-R---without permitting everyone to
> whom copies are distributed to use without restriction---against the terms
> of condition 3.  In other words, it's not the law that anyone who comes
> upon a copy, in circumstances either foul or fair, receives an automatic
> right to use and adapt, despite any restrictions the copyright holder might
> like impose.  When there is an outright, unrestricted sale, the copyright
> owner loses some rights to take back, sue, or impose new restrictions.  But
> not every transfer of a copy makes an outright, unrestricted sale.
>
> As for the FSF's definition of Free Software, you're absolutely right
> about freedom 0, "freedom to run the program as you wish, for any
> purpose".  But consider what that definition has to say about copyleft:
>
>   Certain kinds of rules about the manner of distributing free software
> are acceptable, when they don't conflict with the central freedoms.  For
> example, copyleft (very simply stated) is the rule that when redistributing
> the program, you cannot add restrictions to deny other people the central
> freedoms.  This rule does not conflict with the central freedoms; rather it
> protects them.
>
> L0-R sets a rule about freedom 0, imposing source and licensing
> requirements.  Those requirements protect freedoms 1 and 3, via "access to
> source code" and license requirements.  GPL and AGPL set rules about
> freedom 3, "freedom to distribute copies of your modified versions to
> others".  GPL and AGPL likewise buttress freedoms 1 and 3, also via access
> to source and license requirements.  I don't think L0-R restricts the
> "central freedoms" by setting freedom-protecting source and licensing rules
> about freedom 0, any more than the GPL restricts them by setting
> freedom-protecting source and licensing rules about freedom 3.
>
> There is an implementation difference.  FSF's definition doesn't mention
> rules about other freedoms, other than the one the GPLs chose to hook
> into.  But it leaves open, and begs, the question of whether they could
> also be Freedom-enhancing, on balance.  GPL-3.0 and AGPL-3.0 are older than
> Vernor.  Were GPL-3.0 rewritten today, perhaps the authors would still
> choose to take distribution restrictions out of the toolbox, and leave use
> restrictions behind.  But both come from the toolbox called copyright.
>
> Once the question of L0-R under OSD is resolved, I'd be very interested to
> see what FSF has to say.  But I should be careful how much I take on at
> once.
>
> Many thanks,
>
> K
>
> --
> Kyle Mitchell, attorney // Oakland // (510) 712 - 0933
> _______________________________________________
> License-review mailing list
> License-review at opensource.org
> https://lists.opensource.org/cgi-bin/mailman/listinfo/license-review
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/attachments/20170925/c092cd15/attachment.html>