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

[Smith, McCoy]

Yep.

I had the same thought on LZPL a while back (although didn’t do the comprehensive case citations!): http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2017-October/003151.html
Was in the process of writing a lengthier message for the license-discuss list on OSD 9 and how copyright misuse and the reach of derivative works constrains reach to other code and that’s an inherent part of OSD 9.  Might still do that, despite the good discussion below.

BTW:  Patent misuse may also be in play here, given that the scope of the patent grant in SSPL, as I and others read it, is essentially unbounded (it goes to “everyone” and potentially reaches all patents infringed by “all programs that you use to make the Program or modified versions available” etc.).  That’s also a patent grant that if it were to hold up to patent misuse scrutiny, is one that few patent holders would ever find palatable.  Although that may be an intended feature of this license.

From: License-review [mailto:license-review-bounces at lists.opensource.org] On Behalf Of VanL
Sent: Thursday, October 18, 2018 3:02 PM
To: license-review at lists.opensource.org
Subject: Re: [License-review] Approval: Server Side Public License, Version 1 (SSPL v1)

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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