[License-review] Approval: Server Side Public License, Version 1 (SSPL v1)

[VanL]

One comment as to this license - I think it is likely to be unenforceable
under US law due to the doctrine of copyright misuse and impossibility.

The key cases for this strand of copyright misuse are Lasercomb America,
Inc. v. Reynolds
<https://scholar.google.com/scholar_case?case=14422599737568951802&hl=en&as_sdt=6&as_vis=1&oi=scholarr>,
911 F.2d 970 (4th Cir. 1990), DSC Communications Corp. v. DGI Technologies,
Inc.
<https://scholar.google.com/scholar_case?case=16267455815821808322&hl=en&as_sdt=6&as_vis=1&oi=scholarr>,
81 F.3d 597 (5th Cir. 1996), and probably Practice Management Info. Corp.
v. American Medical Assoc.
<https://caselaw.findlaw.com/us-9th-circuit/1296863.html>, 97 Daily Journal
D.A.R. 10221 (9th Cir. 1997) because it marks the adoption of copyright
misuse as a doctrine in the 9th Circuit where MongoDB is located.

Relative to the SSPL, this is the most directly problematic clause:

“Service Source Code” means the Corresponding Source for the Program or the
modified version, and the Corresponding Source for all programs that you
use to make the Program or modified version available as a service,
including, without limitation, management software, user interfaces,
application program interfaces, automation software, monitoring software,
backup software, storage software and hosting software, all such that a
user could run an instance of the service using the Service Source Code you
make available.

This clause is *designed* to sweep in and force the licensing and
disclosure of code that is not the same "work" as MongoDB. But, quoting
from *Lasercomb*:

We are of the view, however, that since copyright and patent law serve
parallel public interests, a "misuse" defense should apply to infringement
actions brought to vindicate either right.... Both patent law and copyright
law seek to increase the store of human knowledge and arts by rewarding
inventors and authors with the exclusive rights to their works for a
limited time. At the same time, the granted monopoly power does not extend
to property not covered by the patent or copyright.

Thus, we are persuaded that the rationale of Morton Salt in establishing
the misuse defense applies to copyrights. In the passage from Morton Salt
quoted above, the phraseology adapts easily to a copyright context:

The grant to the [author] of the special privilege of a [copyright] carries
out a public policy adopted by the Constitution and laws of the United
States, "to promote the Progress of Science and useful Arts, by securing
for limited Times to [Authors] ... the exclusive Right ..." to their
["original" works]. But the public policy which includes [original works]
within the granted monopoly excludes from it all that is not embraced in
the [original expression]. It equally forbids the use of the [copyright] to
secure an exclusive right or limited monopoly not granted by the
[Copyright] Office and which it is contrary to public policy to grant. (
*Lasercomb* at 976-977, internal citations omitted.)

I wrote out my thoughts in full here: See
https://www.processmechanics.com/2018/10/18/the-server-side-public-license-is-flawed/
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