[License-review] ESA Permissive PL 2.3

[Bruce Perens]

Sorry, I didn't participate in the first review, and am taking this
opportunity to comment upon things that may have already been opened to
comment some months ago. I've not read the previous discussion.

I'll review each license under a separate subject heading.

*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 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:

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:
___________________________________________*
(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.
(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.

Thus, I suggest this language:

If You have knowledge that exercising rights granted by this License *may
infringe a *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 *potential infringement.*

7.2 You acknowledge that continuing to use the Software knowing that such
use *may infringe* third party
rights (e.g. after receiving a third party notification of infringement) *may
*expose you to the risk of
being considered as intentionally infringing third party rights. In such
event You *should seek legal counsel regarding whether to* acquire the
respective rights or modify the Software so that the Modification is
non-infringing.
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