[License-review] ESA-PL Strong 2.3

[Bruce Perens]

3.2.1 Compilations. In the event of the Distribution of a compilation of
Software and/or Modifications with other separate and independent works,
which are not by their nature extensions of the Software and/or the
Modifications, and which are not combined with it such as to form a larger
program, in or on a volume of a storage or distribution medium,
Distribution of the compilation does not cause this License to apply to the
other parts of the compilation.

I think this confuses two things: Aggregation of works together on a
storage medium, and creation of a compilation. Creating a compilation is a
separate work of authorship embodying some *creativity *and admitting the
possibility that the compilation can be copyrighted. Mere aggregation of
works together on a storage medium, by itself, does not embody creativity
and a separate work of authorship that can be copyrighted. The terms in
3.2.1 should apply to aggregation, and would also be sufficient to protect
compilations.

3.2.3 External Modules. You may create a Modification by combining Software
with an external module enabling supplementary functions or services and
Distribute the external module under different license terms, provided that
the external module and the Software run in separate address spaces, with
one calling the other, or each other interfacing, when they are run.

This could be used to arbitrarily circumvent the copyleft, leaving you to
argue in court about whether some function is "supplementary" or "a
service". It's not reason to disapprove of the license, it's just weaker
than license users might realize.

It also makes use of address spaces as a definition of separation, where
APIs might really make more sense and would not arbitrarily constrain the
implementation. Again, not reason for rejection, just sort of arbitrary.

3.4 Service Provision.
If You provide access to the Software and/or Modifications or make its
functionality available by any means or use it to provide services for any
individual or legal entity other than You, e.g. by provision of
software-as-a-service, You are obliged to communicate the Source Code of
the Software and/or Modifications pursuant to Sec. 3.3 to those individuals
or legal entities.

Unfortunately, this refers to 3.3, but 3.3(b) still includes the language:

3.3(b) make the Source Code of the Software and/or Modifications freely
accessible by reasonable means

*for anyone who possesses the Object Code or received the Software and/or
Modifications from You,*
But in the case of the software-as-a-service called out in 3.4, the user *did
not* receive the things mentioned in 3.3, and thus the text is confusing or
contradictory.

So, to fix this, 3.4 should read:

3.4 *Service Provision.*
If You provide access to the Software and/or Modifications or make its
functionality available by any means or use it to provide services for any
individual or legal entity other than You, e.g. by provision of
software-as-a-service, You are obliged to make the source code freely
available to those individuals or legal entities by reasonable means.

4.5 Each Contributor must identify all of its Patent Claims by providing at
a minimum the patent number and identification and contact information in a
text file included with the Distribution titled "LEGAL".

My experience is that patent holders don't know what they own, and are
loath to search their own portfolios. What happens if they *don't *specify
their patents in that file? Are they penalized with a stronger patent
grant? Do they make no patent grant at all?

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.

Same criticism as for these terms in the Permissive license:

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:

7.1 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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