[License-review] ESA Permissive PL 2.3

[Bruce Perens]

I have not personally seen it. Who was your lawyer? Would your lawyer be
able to work with us during the submission process?

Thanks

Bruce

On Tue, Jun 12, 2018, 5:46 AM <libreartist at tutanota.com> wrote:

> 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:
>
>
> 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
>
> _______________________________________________
> License-review mailing list
> License-review at lists.opensource.org
>
> http://lists.opensource.org/mailman/listinfo/license-review_lists.opensource.org
>
> _______________________________________________
> License-review mailing list
> License-review at lists.opensource.org
>
> http://lists.opensource.org/mailman/listinfo/license-review_lists.opensource.org
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/attachments/20180612/5863232b/attachment-0001.html>