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

[Bruce Perens]

I think we will need a read from OSI's lawyer on the issue of copyright
misuse, unless the current draft is withdrawn for revision quite soon.
Wondering why this wasn't a consideration for whoever wrote the license, I
haven't heard any identification of that person yet, nor that they are
participating in this discussion. That's why I pointedly poked Simon on
whether he was representing MongoDB, as I haven't heard from anyone who is.

    Thanks

    Bruce

On Thu, Oct 18, 2018 at 3:12 PM Smith, McCoy <mccoy.smith at intel.com> wrote:

> 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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-- 
Bruce Perens K6BP - CEO, Legal Engineering
Standards committee chair, license review committee member, co-founder,
Open Source Initiative
President, Open Research Institute; Board Member, Fashion Freedom
Initiative.
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