[License-review] ESA Permissive PL 2.3

Tue Jun 12 12:45:37 UTC 2018

Hi,
you could have mistaken me for some other petitioner.
I have submitted a license for your approval, in the name of "Open Creation License".

I am willing to submit once again, if my submission is an error.

With regards,
Libre Artist.

6. May 2018 09:45 by cgerlach at tcilaw.de <mailto:cgerlach at tcilaw.de>:

> Bruce,
>
> please excuse the delayed response. I'm answering to your comments in
> separate e-mails.
>
>> *ESA Permissive PL 2.3*
>> 3.1 _No Copyleft._
>> You may Distribute the Software and/or Modifications, as Source Code or
>> Object Code, under any
>> license terms, provided that
>> (a) notice is given of the use of the Software and the applicability of
>> this License to the
>> Software; and
>> (b) You make best efforts to ensure that further Distribution of the
>> Software and/or
>> Modifications (including further Modifications) is subject to the
>> obligations set forth in
>> this Sec. 3.1 (a) and (b).
>>
>> The title "No Copyleft" is confusing and incorrect, since the terms of
>> that section actually /do /permit distribution under a copyleft license,
>> and they still apply even if the downstream licensor uses a non-copyleft
>> license. 
>
> The intention is to clarify that the license itself does not include a
> copyleft clause (as "no copyleft" is generally understood).
> Redistribution under a copyleft license is feasible, as the software can
> be redistributed "under any license terms". I would not have thought of
> the title as confusing in that regard.
>
>> The actual effect of the terms is to guarantee that whatever
>> license is used, the ESA Permissive PL 2.3 license is still available as
>> an /alternative license/, and the downstream licensor has to make a
>> notice to that effect.
>>
>> And thus, I'd suggest that you state the actual text of the notice the
>> poor un-counseled Open Source developer has to make in that case. Here's
>> my suggested rewrite:
>
> This would indeed be helpful, but to achieve this, we would prefer to
> suggest a notice text in the license FAQ.
>
>> 3.1 _Continued Availability of This License._
>> You may Distribute the Software and/or Modifications, as Source Code or
>> Object Code, under any
>> license terms, provided that
>> (a) you convey this notice with the software:
>> /This software contains a portion licensed under the ESA Permissive PL
>> 2.3. For that portion, the ESA Permissive PL 2.3 terms are available as
>> an alternative to any other license applied to this software. The
>> portion was downloaded from, or is available at:
>> ___________________________________________
>
>
> "Contains a portion licensed under the ESA Permissive PL" might suggests
> that two licenses apply simultaneously to the software. That could
> prohibit a combination of ESA-PL Permissive licensed code with e.g. GPL
> licensed code. I would therefore suggest the notice:
> "This software contains a portion of XXX, Copyright © 2018 YYY. XXX is
> originally licensed under the ESA-PL Permissive  license."
>
>> (b) you add to the notice the online location where you downloaded the
>> Software, or the location where it is currently available in Source Code
>> form as separate software entirely under this license. This may be an
>> online location or a subdirectory within your own software distribution.
>
> We will suggest in the FAQ to add a pointer to the online location in
> the notice as a matter of best practice, but would rather avoid such an
> additional obligation in the license. Compliance with the license terms
> should be as simple as possible. In most cases, the copyright notice
> along with the name of the original component and author(s) should be
> sufficient to find the original distribution (e.g. via search engines).
>
>> (c) You make best efforts to ensure that further Distribution of the
>> Software and/or
>> Modifications (including further Modifications) is subject to the
>> obligations set forth in
>> this Sec. 3.1 (a), (b), and (c).
>>
>> 7.1 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 take
>> reasonable steps (such as notifying appropriate mailing lists or
>> newsgroups) to inform ESA and
>> those who received the Software about the infringement.
>>
>> 7.2 You acknowledge that continuing to use the Software knowing that
>> such use infringes third party
>> rights (e.g. after receiving a third party notification of infringement)
>> *would *expose you to the risk of
>> being considered as intentionally infringing third party rights. In such
>> event You *should *acquire the
>> respective rights or modify the Software so that the Modification is
>> non-infringing.
>>
>> The problem here is that neither ESA nor the licensee is the court.
>> Neither party can determine that the software under this license
>> reliably /does /infringe upon any third party's intellectual property
>> rights, /unless a court has already ruled to that effect. /Nor is any
>> third-party notification actually proof of infringement unless there is
>> an existing ruling. I could thus make a case that 7.1 and 7.2 apply
>> /only after /a court ruling. Which is rather late for the sort of
>> notification you're asking for. I'm sure counsel wants to know earlier
>> than that.
>
> "Knowledge" means positive knowledge of an infringement, for example if
> the user is subject to infringement claims himself, has or gets positive
> knowledge of infringement claims against a third party or if the user's
> own intellectual property rights are being infringed. You could indeed
> argue that a court ruling is required for positive "knowledge", unless
> your own IPR is being infringed. However, a notification obligation of
> any "potential infringement" would in our opinion put an unreasonable
> compliance burden on the users/licensees, since any potential case must
> be reported, regardless of the likelihood.
> It shall only be clear that any user has to react immediately to a
> reported infringement claim so that the infringement is stopped in due time.
>
> Kind regards, Carsten
>
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