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

[Kyle Mitchell]

On 2018-10-18 22:10, Smith, McCoy 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.

I'd really like to read that.  And not just because a proper
response re OSD 9 is also first on my list for this thread.

As for copyright misuse, in the language of Lasercomb, I
don't believe either my submission or SSPL purports to
"suppress any attempt by the licensee to independently
implement the idea which [the software] expresses", or to
adopt competing implementations by others.  Mongo isn't
telling cloud providers they can't provide closed-source,
rich-query, JSON-based document stores as a service.  It's
telling cloud providers they can't provide closed-source,
rich-query, JSON-based document stores as a service with
Mongo's own implementation.

The Lasercomb opinion brings patent misuse to copyright
through the common link of the constitutional language
evoking a single public policy.  But Lasercomb and PMI both
hammer on the fact that copyright license terms purported to
create essentially patent-like monopolies.  The issue was
license terms prohibiting competition against licensors _at
all_, not license terms prohibiting competition against
licensors with their own copyrightable implementations.

The Lasercomb court went out of its way to note that the
plaintiff "undoubtedly has the right to protect against
copying of the Interact code".  The "egregious" license
language that killed their claim covered conduct implicating
none of their exclusive rights as copyright holder.  They
could have cut and pasted the same noncompete into a
comarketing contract.

On a smaller detail, I'm overdue for a refresh trip back to
Nimmer, since my cash-strapped local library got its update.
But I'm not now aware of any cases explicitly linking misuse
to the scope of derivative works.  Preparation of derivative
works is part of the copyright monopoly under 106, but it's
neither the whole monopoly, nor the only exclusive right
practically implicated by use of software, alone or with
other software.

-- 
Kyle Mitchell, attorney // Oakland // (510) 712 - 0933