[License-review] License-review Digest, Vol 97, Issue 8

Eric Schultz eric at wwahammy.com
Fri Dec 11 17:06:54 UTC 2020


Wayne,

I would like to ask again. What is your goal of submitting your license
here? What do you hope to achieve?

I will reiterate again. There is zero chance this license will be approved
by the OSI in anything like its current state

Eric

On Fri, Dec 11, 2020 at 10:02 AM Wayne Thornton <wayne at viratrace.us> wrote:

> In response to the issues raised by Mr. McCoy, see the issue and our
> response below (indicated by >>)
>
> 1.4: definition of ?Deploy? includes internal only use. This violates
> Freedom Zero, which I believe is, and have argued before is, inherently,
> part of the OSD. Given this question has come up more than once recently,
> might it be time for OSI to clarify this point?
>
> >> We do not see how including internal only use in the definition of
> "deploy" violates Freedom Zero. Specifically, Section 2.2 grants the right
> of a developer to distribute and deploy the software however they wish, in
> whatever medium they choose, so long as they make the source code publicly
> available for 24 months or the entire period the software is deployed,
> whichever is longer [Section 2.2(b)]. Considering that Freedom Zero is "the
> freedom to run [a] program as you wish, for any purpose" and our definition
> of "deploy" does not place any restriction on where, when, or how a
> developer can deploy the software, any argument vis-a-vis Freedom Zero
> would be moot. It would be inappropriate at this time for OSI to make a
> determination regarding Freedom Zero being part of the OSD, especially
> since such determination would be narrowly relying on how Freedom Zero is
> being applied in terms of the proposed license and directly relating
> ViraTrace and the proposed license to any subsequent determination thus
> making it appear as though ViraTrace and the proposed license were the
> catalyst for such determination; rather it would be more appropriate for a
> second discussion to be opened specifically regarding this topic, where
> such discussion covers the multitude of instances where this question has
> come up and no single license would be able to be identified as the
> catalyst for whatever determination results.
>
>
> 1.10+12.1c: Violates OSD 5 and/or 6 by allowing termination based on legal
> review by ViraTrace legal department, even if licensee?s legal department
> has reviewed and reached a different legal conclusion. This is one of the
> somewhat common ?you must comply with the law? license restrictions which
> are both unnecessary, and discriminatory.
>
> >> OSD 5 (No Discrimination Against Persons or Groups) does not apply
> here. At no time does our proposed license prevent anyone from initially
> participating and contributing to the open source project. Anyone who
> wishes is free to download and utilize the source code we have developed in
> their projects. Similarly, OSD 6 (No Discrimination Against Fields of
> Endeavour) does not apply here. At no point in our proposed license to we
> state that certain industries or endeavors are prohibited from using our
> software.
>
> Section 12.1(c) is the mechanism by which termination can occur following
> Technical and Legal Compliance Review. As part of this process, ViraTrace
> and associated legal counsel, provide a written notice to developers
> stating why and how we believe the Modifications do not meet the standards
> of Applicable Law. Following this notice, the developer has 7 calendar days
> to rectify the perceived issues or the license will terminate. Nothing in
> that section precludes a developer from engaging in legal discussions with
> ViraTrace's or other legal counsel prior to, and during development of
> their software, nor does it preclude such discussions from occurring once a
> notice under Section 12.1(c) has been received.
>
> It should also be noted that nothing in the termination clause of the
> proposed license restricts a terminated developer from later downloading a
> new copy of the Covered Code and utilizing it for other projects.
>
> In and of themselves, open-source software licenses are voluntary and
> require express agreement prior to usage of covered software. If a
> developer does not wish to be subject to conditions within the proposed
> license, they have the freedom to look elsewhere and to utilize other
> frameworks and software not covered by the proposed license.
>
> 1.11: Mandatory requirement to disable downstream users seems to
> discriminate against downstream users, by terminating their rights, even if
> they haven?t engaged in behavior that otherwise allows termination.
>
> >> Section 1.11 simply defines the term "Disabling Update". Section 12.2
> covers the effects of termination of license under conditions specified in
> Section 12.1 and implementation of a Disabling Update. Downstream users'
> rights are protected by use of Disabling Updates in the event of a license
> termination in that it provides for their health, safety, privacy, etc. by
> ensuring that bad software is taken off the market. Nothing precludes a
> downstream user from restoring a backup copy of such software and utilizing
> it, nor is the terminated developer precluded from providing a message
> stating as such in any Disabling Update.
>
> 3: Grants different patent licenses to ViraTrace than to others. 3b seems
> to be a fairly narrow additional grant to ViraTrace, but such asymmetric
> patent license obligations are generally disfavored and/or violate OSD 5 or
> 6.
>
> >> Although Section 3(b) contains a narrow additional grant to ViraTrace
> in that such grant is made irrevocable, this section actually severely
> limits the ability of ViraTrace to utilize the software in that ViraTrace
> may only take advantage of the grants for purposes of Technical and Legal
> Compliance Review. See 13.3 below.
>
> 9.1: Allows ViraTrace to unlaterally ?suspend? license rights in case
> where it believes there is claim of infringement, but other authors don?t
> have that right (nor do users have the right to rely upon advice of their
> own counsel). Violates OSD 5 or 6.
>
> >> This may be a valid point, albeit misconstrued. ViraTrace intends this
> section to protect the integrity of the software covered by the proposed
> license and the rights of developers to utilize the software without fear
> of legal reprisal from any potential copyright claimant. Section (a)
> provides that in the event of a copyright claim, ViraTrace must attempt to
> procure the necessary legal rights for developers under the proposed
> license and make any temporary source code modifications necessary to
> ensure that the code is no longer infringing any copyright during this
> attempt. Section (b) allows ViraTrace to suspend license rights in the
> event of a legitimate legal challenge. Additionally, this section permits
> developers to attempt to obtain legal rights to use the software outside of
> efforts made by ViraTrace.
>
> ViraTrace is the maintainer of the Covered Code and believes it is legally
> responsible for ensuring that Covered Code and Modifications are free from
> copyright claims and legal violations. As such, we are not opposed to
> modifying this section slightly to read as follows: [CHANGES IN BRACKETS]
>
> 9.1 Infringement. If any portion of, or functionality implemented by, the
> Original Code becomes the subject of a claim of infringement, ViraTrace
> must[, at its option]: (a) attempt to procure the rights necessary for
> ViraTrace and You to continue using the Affected Original Code, and in the
> interim modify the Affected Original Code so that it is no longer
> infringing; or (b) [IN THE EVENT OF A VALID COURT ORDER REQUIRING VIRATRACE
> TO DO SO,] suspend Your rights to use, reproduce, modify, sublicense and
> distribute the Affected Original Code until a final determination of the
> claim is made by a court or governmental agency of competent jurisdiction
> and ViraTrace lifts the suspension as set forth below. Such suspension of
> rights will be effective immediately upon ViraTrace’s posting of a notice
> [AND COPY OF A VALID COURT ORDER] to such effect on the Git repository that
> is used for implementation of this License. Upon such final determination
> being made, if ViraTrace is legally able, without the payment of a fee or
> royalty, to resume use, reproduction, modification, sublicensing and
> distribution of the Affected Original Code, ViraTrace shall lift the
> suspension of rights to the Affected Original code by posting a notice to
> such effect on the Git repository that is used for implementation of this
> License. If ViraTrace suspends your rights to Affected Original Code,
> nothing in this License shall be construed to restrict You, at Your option
> and subject to applicable law, from replacing the Affected Original code
> with non-infringing code or independently negotiating for necessary rights
> from such third party.
>
> 13.3: Discriminates *against* ViraTrace, as it doesn?t allow them to
> develop competing products to those made by licensees via Modifications. I
> tend to think OSD 5 and 6 doesn?t allow you to discriminate against
> yourself, even if no one else is harmed.
>
> >> This is an issue which SHOULD be discussed in a separate thread and
> warrants a determination by OSI as to legality so that guidance can be
> issued. However, ViraTrace believes that given the voluntary nature of
> open-source licenses, it has the right to expressly discriminate against
> itself when that discrimination protects the intellectual property rights
> of licensees from abuse by licensor.
>
> Basically, this one seems to be contra OSD in many of its aims, so I?m not
> sure it?s really designed to be eventually OSI-approvable.
>
> Regards,
>
> Wayne M. Thornton, B.S., CPDT
> Co-Founder & Project Manager
> VIRATRACE©
> 720-766-0254 – Direct
>
> https://www.viratrace.o <https://www.viratrace.org/>rg
>
> Be sure to join our Microsoft Teams
> <https://teams.microsoft.com/join/lw83179ktnqf> channel for updates and
> to contribute!
>
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> addressed. It may contain privileged, confidential information which is
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> copying this information. If you have received this communication in error,
> please notify us immediately by e-mail. Thank you.
>
>
>
> ---- On Thu, 10 Dec 2020 19:56:16 -0700 *
> <license-review-request at lists.opensource.org
> <license-review-request at lists.opensource.org>>* wrote ----
>
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> Today's Topics:
>
> 1. Re: Approval Request - ViraTrace Public Source License 1.0
> (McCoy Smith)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Thu, 10 Dec 2020 18:55:30 -0800
> From: "McCoy Smith" <mccoy at lexpan.law>
> To: "'License submissions for OSI review'"
>     <license-review at lists.opensource.org>
> Subject: Re: [License-review] Approval Request - ViraTrace Public
>     Source License 1.0
> Message-ID: <08c401d6cf69$168578d0$43906a70$@lexpan.law>
> Content-Type: text/plain; charset="utf-8"
>
> Apologies for sending a .doc; I know some of you disfavor that format.
> Here?s an .odt.
>
> [FWIW, the compare feature of Word works a lot better than for
> LibreOffice, so I tend to be forced to use it for that sort of function]
>
>
>
> From: McCoy Smith <mccoy at lexpan.law>
> Sent: Thursday, December 10, 2020 6:31 PM
> To: 'License submissions for OSI review' <
> license-review at lists.opensource.org>
> Subject: RE: [License-review] Approval Request - ViraTrace Public Source
> License 1.0
>
>
>
> I?ve again did a compare between APSLv2.0 and this version of the
> submitted license.
>
> Good news: It?s substanstively different than APSLv2.0
>
> Bad news: It violates OSD in a couple of different ways:
>
>
>
> 1.4: definition of ?Deploy? includes internal only use. This violates
> Freedom Zero, which I believe is, and have argued before is, inherently,
> part of the OSD. Given this question has come up more than once recently,
> might it be time for OSI to clarify this point?
>
>
>
> 1.10+12.1c: Violates OSD 5 and/or 6 by allowing termination based on legal
> review by ViraTrace legal department, even if licensee?s legal department
> has reviewed and reached a different legal conclusion. This is one of the
> somewhat common ?you must comply with the law? license restrictions which
> are both unnecessary, and discriminatory.
>
>
>
> 1.11: Mandatory requirement to disable downstream users seems to
> discriminate against downstream users, by terminating their rights, even if
> they haven?t engaged in behavior that otherwise allows termination.
>
>
>
> 3: Grants different patent licenses to ViraTrace than to others. 3b seems
> to be a fairly narrow additional grant to ViraTrace, but such asymmetric
> patent license obligations are generally disfavored and/or violate OSD 5 or
> 6.
>
>
>
> 9.1: Allows ViraTrace to unlaterally ?suspend? license rights in case
> where it believes there is claim of infringement, but other authors don?t
> have that right (nor do users have the right to rely upon advice of their
> own counsel). Violates OSD 5 or 6.
>
>
>
> 13.3: Discriminates *against* ViraTrace, as it doesn?t allow them to
> develop competing products to those made by licensees via Modifications. I
> tend to think OSD 5 and 6 doesn?t allow you to discriminate against
> yourself, even if no one else is harmed.
>
>
>
> Basically, this one seems to be contra OSD in many of its aims, so I?m not
> sure it?s really designed to be eventually OSI-approvable.
>
> Also note: at one point there is reference to a ?ViraTrace Restrictive
> Public Source License version 1.0?. Is that some other license, or this
> license? These sorts of things make me think the lack of any legal review
> of this license ought to be corrected before next submission.
>
>
>
> From: License-review <license-review-bounces at lists.opensource.org <mailto:
> license-review-bounces at lists.opensource.org> > On Behalf Of Eric Schultz
> Sent: Thursday, December 10, 2020 4:09 PM
> To: License submissions for OSI review <
> license-review at lists.opensource.org <mailto:
> license-review at lists.opensource.org> >
> Subject: Re: [License-review] Approval Request - ViraTrace Public Source
> License 1.0
>
>
>
> Wayne,
>
>
>
> If the license can be terminated based on a way in which the recipient
> uses the software, there I literally zero chance the license will be
> approved here. It definitely violates the OSD and the Free Software
> Definition.
>
>
>
> Could you quickly summarize why you want your license approved as open
> source? That would be useful context.
>
>
>
> Eric
>
>
>
> On Thu, Dec 10, 2020, 2:31 PM Wayne Thornton <wayne at viratrace.us <mailto:
> wayne at viratrace.us> > wrote:
>
> ViraTrace hereby withdraws the primary text of the VPSL 1.0 as proposed
> and submits the following amendment for consideration:
>
>
>
> License Name: ViraTrace Public Source License 1.0.1
>
>
>
> Rationale: Our company is in the business of creating frameworks and
> software products which facilitate automated contact tracing initiatives
> across the globe. These frameworks and products must be GDPR- and
> HIPPA-compliant and have been designed to be such, with strict, ongoing
> legal review processes undertaken to ensure this. The frameworks and
> products that we create are designed to be utilized by governmental
> agencies and private corporations in the creation of applications and
> platforms which aid in the fight against COVID-19 and future pandemic
> scenarios. In order for this to be of benefit, the frameworks and software
> we develop must be open source, so that the governmental agencies and
> private corporations can be free to utilize them. Unfortunately, due to the
> legal compliance issues vis-a-vis GDPR and HIPPA, a level of control
> regarding development must be maintained. It is our position that the GNU
> and other OSI-approved licenses do not provide this level of control.
> [FOREGOING IS SAME AS PREVIOUSLY DISCUSSED, AMENDMENT ADDRESSING ONGOING
> DISCUSSION FOLLOWS] We have considered the various licenses available and
> although some of them seem to be relevant, the need for specific conditions
> permitting the level of control necessary to administer the frameworks and
> products we develop precludes these licenses from consideration. As an
> example, the CAL (Cryptographic Autonomy License) has been proposed by Josh
> Berkus as one such license. This license provides no mechanism for recall
> of rights and covered frameworks and software in the event of a breach of
> license and more seriously, has a provision (4.2.1) which mandates the
> sharing of user data and is wholly incompatible with GDPR and HIPPA.
> Additionally, the CAL is targeted towards holochain and distributed
> processing networks. This is not the purpose of our frameworks and products
> and thus the CAL cannot be applied.
>
>
>
> Distinguish: This license is similar in context to the APSL (v. 1.0) The
> APSL as currently approved is considered both an OSI and FSF license.
> Developers are free to utilize and modify the code without sharing the
> changes they create. This is wholly incompatible with the compliance issues
> previously discussed. Because of these issues, ViraTrace MUST have the
> ability to strictly control the usage and modifications made to the
> software code, and to undertake actions to revoke usage permissions for
> those governmental agencies and private corporations who make changes that
> substantially undermine the legal compliance. Such actions necessarily
> include the ability to obtain legal injunctions which force the removal of
> a product utilizing the modified and offending frameworks from the market
> so long as they use ViraTrace intellectual property. [FOREGOING IS SAME AS
> PREVIOUSLY DISCUSSED, AMENDMENT ADDRESSING ONGOING DISCUSSION FOLLOWS] In
> drafting the VPSL 1.0.1, we have made significant modifications and changes
> to the APSL (v 1.0) that both impose the limitations we require for
> adequate control of our frameworks and products, but also grant
> contributors and developers additional rights and imposes restrictions on
> ViraTrace itself.
>
>
>
> Specifically:
>
>
>
> (1) In Section 1, we added several definitions, including "Technical and
> Legal Compliance Review", "Disabling Update" and "Publicly Available".
>
>
>
> (2) In Section 2.2(b) we amended to require that Covered Code and
> Modifications (as defined in the license) be made publicly available for 24
> months or for as long as the Covered Code is in use, whichever is longer.
> This facilitates transparency and permits the public to review the source
> for any potential legal challenges under applicable laws.
>
>
>
> (3) Section 3(a) refers to reciprocol grants and sublicenses of
> Modifications to Covered Code by contributors and developers to third
> parties under the proposed license. ViraTrace is specifically excluded from
> these grants and sublicenses.
>
>
>
> (4) Section 3(b) grants ViraTrace an irrevocable license to utilize
> Modifications by others strictly for purposes of Technical and Legal
> Compliance Review and enforcement of the Termination and Severability
> provisions of the license. ViraTrace is NOT permitted to merge code and
> utilize Modifications in subsequent releases.
>
>
>
> (5) Section 9.1 has been significantly modified to require that in the
> event of a patent infringement claim being brought by a third party
> regarding the subject frameworks and products, ViraTrace must undertake one
> of two actions: ViraTrace must take every step necessary to properly
> license the infringing code, and during this process must modify the
> existing code to remove the infringement, OR if it is determined that a
> proper legal defense to infringement exists, must suspend the license until
> the proper outcome of any legal actions and then immediately and
> unconditionally restore the rights granted under the license.
>
>
>
> (6) Section 12.1(c) provides the necessary mechanism for license
> termination in the event code is deemed after review to have failed
> Technical and Legal Compliance Review.
>
>
>
> (7) Section 12.2 adds a provision to require that any developer terminated
> under Section 12.1 of the license must issue a "Disabling Update" as
> defined in the license. This is to prevent code which fails Technical and
> Legal Compliance Review from being further propagated and is designed to
> protect end users of such code from health, safety, data and privacy
> breaches caused by the offending code.
>
>
>
> (8) Section 13.3 relates to Independent Development. It specifically
> permits ViraTrace to create frameworks, products and software which may
> directly compete with Modifications and products created contributors who
> utilize Covered Code. A significant limitation is placed on ViraTrace,
> however in that ViraTrace is expressly prohibited from utilizing direct
> knowledge of Modifications in the design and subsequent development of
> competing frameworks, products and software. This means that although
> ViraTrace receives and reviews Modifications from contributors and
> developers under the license, it cannot use that knowledge to design a
> competing product. Anything developed must be free from conflict of
> interest. This ties directly back to Section 3(a).
>
>
>
> (9) Section 13.6 changes the venue for jurisdiction to the District of
> Colorado.
>
>
>
> LEGAL REVIEW: None. As this license is modeled on previously drafted
> licenses, the bulk of the license has already undergone legal review and
> any further challenges are addressed in Section 13.5
>
>
>
> PROLIFERATION CATEGORY: Although considered a "vanity" license, this type
> of license could be considered a "Special purpose" license due to the
> stated legal compliance needs and provisions.
>
>
>
> THE TEXT OF THE PROPOSED LICENSE IS ATTACHED IN PLAIN-TEXT FORMAT AND IS
> ALSO COPIED AND PASTED BELOW:
>
>
>
> VIRATRACE PUBLIC SOURCE LICENSE
>
> Version 1.0.1 - December 10, 2020
>
>
>
> Please read this License carefully before downloading this software.
>
> By downloading and using this software, you are agreeing to be bound by
> the terms of this License. If you do not or cannot agree to the terms of
> this License, please do not download or use the software.
>
>
>
> 1. General; Definitions: This License applies to any program or other work
> which ViraTrace, LLC (?ViraTrace?) publicly announces as subject to this
> ViraTrace Public Source License and contains a notice placed by ViraTrace
> identifying such program or work as ?Original Code? and stating that it is
> subject to the terms of the ViraTrace Restrictive Public Source License
> version 1.0 (or subsequent version thereof), as it may be revised from time
> to time by ViraTrace(?License?). As used in this License:
>
>
>
> 1.1 ?Affected Original Code? means only those specific portions of
> Original Code that allegedly infringe upon any party?s intellectual
> property rights or are otherwise the subject of a claim of infringement or
> other legal process.
>
>
>
> 1.2 ?Applicable Patent Rights? means: (a) in the case where ViraTrace
>
> Is the grantor of rights, (i) claims of patents that are now or hereafter
> acquired, owned or assigned to ViraTrace and (ii) that cover subject matter
> contained in the Original Code, but only to the extent necessary to use,
> reproduce and/or distribute the Original Code without infringement; and (b)
> in the case where You are the grantor of rights, (i) claims of patents that
> are now or hereafter acquired, owned by or assigned to You and (ii) that
> cover subject matter in Your Modifications, taken alone or in combination
> with Original Code.
>
>
>
> 1.3 ?Covered Code? means the Original Code, Modifications, the combination
> of Original Code and any Modifications, and/or any respective portions
> thereof.
>
>
>
> 1.4 ?Deploy? means to use, sublicense or distribute Covered Code, and
> includes without limitation, any and all internal use or distribution of
> Covered Code within your business or organization, specifically including
> research and development (R&D) use, as well as direct or indirect
> sublicensing or distribution of Covered Code by You to any third party in
> any form or manner.
>
>
>
> 1.5 ?Larger Work? means a work which combines Covered Code or portions
> thereof with code not governed by the terms of this License.
>
>
>
> 1.6 ?Modifications? mean any addition to, deletion from, and/or change to,
> the substance and/or structure of Covered Code. When code is released as a
> series of files, a Modification is: (a) any addition to or deletion from
> the contents of a file containing Covered Code; and/or (b) any new file or
> other representation of computer program statements that contains any part
> of the Covered Code.
>
>
>
> 1.7 ?Original Code? means (a) the Source Code of a program or other work
> as originally made available by ViraTrace under this License, including
> Source Code of any updates or upgrades to such programs or works made
> available by ViraTrace under this License, and that has been expressly
> identified by ViraTrace as such in the header file(s) of such work; and (b)
> the object code compiled from such Source Code and originally made
> available by ViraTrace under this License.
>
>
>
> 1.8 ?Source Code? means the human or optical character recognition (OCR)
> readable form of a program or other work that is suitable for making
> modifications to it, including all modules it contains, plus any associated
> interface definition files, scripts used to control compilation and
> installation of an executable (object code).
>
>
>
> 1.9 ?You? or ?Your? means an individual or a legal entity exercising
> rights under this License. For legal entities, ?You? or ?Your? includes any
> entity which controls, is controlled by, or is under common control with,
> You, where ?control? means (a) the power, direct or indirect, to cause the
> direction or management of such entity, whether by contract or otherwise,
> or (b) ownership of thirty-three percent (33%) or more of the outstanding
> shares or beneficial ownership of such entity.
>
>
>
> 1.10 ?Technical and Legal Compliance Review? means any process by which
> Covered Code submitted by You to determine if Your Modifications cause the
> Covered Code to fall out of compliance with Applicable Laws is undertaken
> by ViraTrace and/or its subsidiaries. For purposes of this definition,
> Applicable Laws shall mean any law which is intended to provide a legal
> framework for compliance with health, safety, personal privacy or other
> such concerns. Applicable Laws shall include, but not be limited to, the
> Health Information Portability and Privacy Act (HIPPA) and the General Data
> Protection Regulation (GDPR).
>
>
>
> 1.11 ?Disabling Update? means a mandatory software update to any
> application or software product which has utilized Covered Code, and that
> has specifically been designed to prevent further usage of such application
> or software product and the Covered Code within.
>
>
>
> 1.12 ?Publicly Available? means any Covered Code or Your Modifications to
> Covered Code which are available to anyone outside of Your organization or
> entity upon request, either thru electronic or other distribution means,
> regardless of whether those means are controlled by a third party.
>
>
>
> 2. Permitted Uses; Conditions & Restrictions. Subject to the terms and
> conditions of this License, ViraTrace hereby grants You, effective on the
> date You accept this License and download or utilize any portion of the
> Original Code, a world-wide, royalty-free, non-exclusive license, to the
> extent of ViraTrace?s Applicable Patent Rights and copyrights covering the
> Original Code, to do the following:
>
>
>
> 2.1 You may use, copy, modify and distribute Original Code, with or
> without Modifications, solely for Your internal research and development
> (R&D), provided that You must in each instance:
>
>
>
> (a) retain and reproduce in all copies of Original Code the copyright and
> other proprietary notices and disclaimers of ViraTrace as they appear in
> the Original Code, and keep intact all notices in the Original Code that
> refer to this License;
>
>
>
> (b) include a copy of this License with every copy of Source Code of
> Covered Code and documentation You distribute, and You may not offer or
> impose any terms on such Source Code that alter or restrict this License or
> the recipients? rights hereunder, except as permitted under Section 6; and
>
>
>
> (c) completely and accurately document all Modifications that you have
> made and the date of each such Modification, designate the version of the
> Original Code You used, prominently include a file carrying such
> information with the Modifications, and duplicate the notice in Exhibit A
> in each file of the Source Code of all such Modifications.
>
>
>
> 2.2 You may Deploy Covered Code, provided that You must in each instance:
>
>
>
> (a) satisfy all the conditions of Section 2.1 with respect to the Source
> Code of the Covered Code;
>
>
>
> (b) make all Your Deployed Modifications publicly available in Source Code
> form via electronic distribution (e.g. download from a Git repository)
> under the terms of this License and subject to the License grants set forth
> in Section 3 below, and any additional terms You may choose to offer under
> Section 6. You must continue to make the Source Code of Your Deployed
> Modifications available for as long as you Deploy the Covered Code or
> twenty-four (24) months from the date of initial Deployment, whichever is
> longer;
>
>
>
> (c) if You Deploy Covered Code containing Modifications made by You,
> inform ViraTrace of such Modifications by submitting the documentation
> required by Section 2.1(c) and a copy of Covered Code via electronic mail
> to management at viratrace.us <mailto:management at viratrace.us> , if
> available; and
>
>
>
> (d) if You Deploy Covered Code in object code, executable form only,
> include a prominent notice, in the code itself as well as in related
> documentation, stating that Source Code of the Covered Code is available
> under the terms of this License with information on how and where to obtain
> such Source Code.
>
>
>
> 3. Your Grants. In consideration of, and as a condition to, the licenses
> granted to You under this License:
>
>
>
> (a) You hereby grant to all third parties (exclusive of ViraTrace and/or
> its subsidiaries) a non-exclusive, royalty-free license, under Your
> Applicable Patent Rights and other intellectual property rights owned or
> controlled by You, to use, reproduce, modify, distribute and Deploy Your
> Modifications of the same scope and extent as ViraTrace?s licenses under
> Sections 2.1 and 2.2; and
>
>
>
> (b) You hereby grant to ViraTrace and its subsidiaries a non- exclusive,
> worldwide, royalty-free, perpetual and irrevocable license, under Your
> Applicable Patent Rights and other intellectual property rights owned or
> controlled by You, to use, reproduce, execute, compile, display, perform,
> modify or have modified (for ViraTrace and/or its subsidiaries), and
> distribute Your Modifications, in any form, through multiple tiers of
> distribution solely for purposes of Technical and Legal Compliance Review,
> and enforcement of the Termination and Severability clauses of this
> License.
>
>
>
> 4. Larger Works. You may create a Larger Work by combining Covered Code
> with other code not governed by the terms of this License and distribute
> the Larger Work as a single product. In each such instance, You must make
> sure the requirements of this License are fulfilled for the Covered Code or
> any portion thereof.
>
>
>
> 5. Limitations on Patent License. Except as expressly stated in Section 2,
> no other patent rights, express or implied, are granted by ViraTrace
> herein. Modifications and/or Larger Works may require additional patent
> licenses from ViraTrace which ViraTrace may grant in its sole discretion.
>
>
>
> 6. Additional Terms. You may choose to offer, and to charge a fee for,
> warranty, support, indemnity or liability obligations and/or other rights
> consistent with the scope of the license granted herein (?Additional
> Terms?) to one or more recipients of Covered Code. However, You may do so
> only on Your own behalf and as Your sole responsibility, and not on behalf
> of ViraTrace. You must obtain the recipient?s express agreement that any
> such Additional Terms are offered by You alone, and You hereby agree to
> indemnify, defend and hold ViraTrace harmless for any liability incurred by
> or claims asserted against ViraTrace by reason of any such Additional
> Terms.
>
>
>
> 7. Versions of the License. ViraTrace may publish revised and/or new
> versions of this License from time to time. Each version will be given a
> distinguishing version number. Once Original Code has been published under
> a particular version of this License, You may continue to use it under the
> terms of that version. You may also choose to use such Original Code under
> the terms of any subsequent version of this License published by ViraTrace.
> No one other than ViraTrace has the right to modify the terms applicable to
> Covered Code created under this License.
>
>
>
> 8. NO WARRANTY OR SUPPORT. The Original Code may contain in whole or in
> part pre-release, untested, or not fully tested works. The Original Code
> may contain errors that could cause failures or loss of data, and may be
> incomplete or contain inaccuracies. You expressly acknowledge and agree
> that use of the Original Code, or any portion thereof, is at Your sole and
> entire risk. THE ORIGINAL CODE IS PROVIDED ?AS IS? AND WITHOUT WARRANTY,
> UPGRADES OR SUPPORT OF ANY KIND AND VIRATRACE AND VIRATRACE?S LICENSOR(S)
> (FOR THE PURPOSES OF SECTIONS 8 AND 9, VIRATRACE AND VIRATRACE?S
> LICENSOR(S) ARE COLLECTIVELY REFERRED TO AS ?VIRATRACE?) EXPRESSLY DISCLAIM
> ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
> LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR
> SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND
> NONINFRINGEMENT OF THIRD PARTY RIGHTS. VIRATRACE DOES NOT WARRANT THAT THE
> FUNCTIONS CONTAINED IN THE ORIGINAL CODE WILL MEET YOUR REQUIREMENTS, OR
> THAT THE OPERATION OF THE ORIGINAL CODE WILL BE UNINTERRUPTED OR
> ERROR-FREE, OR THAT DEFECTS IN THE ORIGINAL CODE WILL BE CORRECTED. NO ORAL
> OR WRITTEN INFORMATION OR ADVICE GIVEN BY VIRATRACE OR A VIRATRACE
> AUTHORIZED REPRESENTATIVE SHALL CREATE WARRANTY OR IN ANY WAY INCREASE THE
> SCOPE OF THIS WARRANTY. You acknowledge that the Original Code is not
> intended for use in the operation of nuclear facilities, aircraft
> navigation, or air traffic control machines in which case the failure of
> the Original Code could lead to death, personal injury, or severe physical
> or environmental damage.
>
>
>
> 9. Liability.
>
>
>
> 9.1 Infringement. If any portion of, or functionality implemented by, the
> Original Code becomes the subject of a claim of infringement, ViraTrace
> must, at its option: (a) attempt to procure the rights necessary for
> ViraTrace and You to continue using the Affected Original Code, and in the
> interim modify the Affected Original Code so that it is no longer
> infringing; or (b) suspend Your rights to use, reproduce, modify,
> sublicense and distribute the Affected Original Code until a final
> determination of the claim is made by a court or governmental agency of
> competent jurisdiction and ViraTrace lifts the suspension as set forth
> below. Such suspension of rights will be effective immediately upon
> ViraTrace?s posting of a notice to such effect on the Git repository that
> is used for implementation of this License. Upon such final determination
> being made, if ViraTrace is legally able, without the payment of a fee or
> royalty, to resume use, reproduction, modification, sublicensing and
> distribution of the Affected Original Code, ViraTrace shall lift the
> suspension of rights to the Affected Original code by posting a notice to
> such effect on the Git repository that is used for implementation of this
> License. If ViraTrace suspends your rights to Affected Original Code,
> nothing in this License shall be construed to restrict You, at Your option
> and subject to applicable law, from replacing the Affected Original code
> with non-infringing code or independently negotiating for necessary rights
> from such third party.
>
>
>
> 9.2 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL VIRATRACE BE
> LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES
> ARISING OUT OF OR RELATING TO THIS LICENSE OR YOUR USE OR INABILITY TO USE
> THE ORIGINAL CODE, OR ANY PORTION THEREOF, WHETHER UNDER A THEORY OF
> CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY OR
> OTHERWISE, EVEN IF VIRATRACE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
> DAMAGES AND AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY
> REMEDY. In no event shall ViraTrace?s total liability to You for all
> damages and attorney?s fees under this License exceed the amount of fifty
> United States dollars ($50.00).
>
>
>
> 10. Trademarks. This License does not grant any rights to use the
> trademarks or trade names ?ViraTrace?, ViraTrace, LLC?, ?ViraTrace BLE? or
> any other trademarks or trade name belonging to ViraTrace (collectively
> ?ViraTrace Marks?) and no ViraTrace Marks may be used to endorse or promote
> products derived from the Original Code other than as permitted and in
> strict compliance at all times with ViraTrace?s third party trademark usage
> guidelines which may be obtained by sending an electronic mail request to
> management at viratrace.us <mailto:management at viratrace.us> .
>
>
>
> 11. Ownership. ViraTrace retains all rights, title and interest in and to
> the Original Code and any Modifications made by or on behalf of ViraTrace
> (?ViraTrace Modifications?), and such ViraTrace Modifications will not be
> automatically subject to this License. ViraTrace may, at its sole
> discretion, choose to license such ViraTrace Modifications under this
> License, or on different terms from those contained in this License or may
> choose not to license them at all. ViraTrace?s development, use,
> reproduction, modification, sublicensing and distribution of Covered Code
> will not be subject to this License.
>
>
>
> 12. Termination.
>
>
>
> 12.1 This License and the rights granted hereunder will terminate:
>
>
>
> (a) automatically without notice from ViraTrace if you fail to comply with
> any term(s) of this License and fail to cure such breach within 30 calendar
> days of becoming aware of such breach;
>
>
>
> (b) immediately in the event of the circumstances described in Section
> 13.5(b);
>
>
>
> (c) automatically without notice from ViraTrace if the results of a
> Technical and Legal Compliance Review undertaken by ViraTrace and/or its
> subsidiaries pursuant to Section 3(b) determine that Your Modifications to
> Covered Code are out of Technical and Legal Compliance with Applicable Laws
> as defined in Section 1.10 and You fail to pass a secondary Technical and
> Legal Compliance Review within 7 calendar days of becoming aware of such
> results; or
>
>
>
> (d) automatically without notice from ViraTrace if You, at any time during
> the term of this License, commence and action for patent infringement
> against ViraTrace and/or its subsidiaries.
>
>
>
> 12.2 Effect of Termination. Upon termination, You agree to immediately and
> without delay stop any further use, reproduction, modification,
> sublicensing and distribution of the Covered Code and to destroy all copies
> of the Covered Code that are in your possession or control. In the event
> Your use of the Covered Code was in the development and creation of a free
> or paid Publicly Available application or software product, you agree to
> immediately and without delay remove such application or software product
> from any and all applicable distribution platforms and to stop any further
> use via release of a mandatory Disabling Update as defined in Section 1.11.
> All sublicenses to the Covered Code which have been properly granted prior
> to termination shall survive any termination of this License. Provisions
> which, by their nature, should remain in effect beyond the termination of
> this License shall survive, including but not limited to Sections
> 3,5,8,9,10,11,12.2 and 13. Neither party will be liable to the other for
> compensation, indemnity or damages of any sort solely as a result of
> terminating this License in accordance with its terms, and termination of
> this License will be without prejudice to any other right or remedy of
> either party.
>
>
>
> 13. Miscellaneous.
>
>
>
> 13.1 Government End Users. The Covered Code is a ?commercial item? as
> defined in FAR 2.101. Government software and technical data rights in the
> Covered Code include only those rights customarily provide to the public as
> defined in this License. This customary commercial license in technical
> data and software is provided in accordance with FAR 12.211 (Technical
> Data) and 12.212 (Computer Software) and, for Department of Defense
> purchases, DFAR 252.277-7015 (Technical data ? Commercial Items) and
> 227.7202-3 (Rights in Commercial Computer Software or Computer Software
> Documentation). Accordingly, all U.S. Government End Users acquire Covered
> Code with only those rights set forth herein.
>
>
>
> 13.2 Relationship of Parties. This License shall not be construed as
> creating an agency, partnership, joint venture or any other form of legal
> association between You and ViraTrace, and You will not represent to the
> contrary, whether expressly, by implication, appearance or otherwise.
>
>
>
> 13.3 Independent Development. Nothing in this License will impair
> ViraTrace?s right to acquire, license, develop, have others develop for it,
> market and/or distribute technology or products that perform the same or
> similar function as, or otherwise compete with, Modifications, Larger
> Works, technology or products that You may develop, produce, market or
> distribute; except that ViraTrace and/or its subsidiaries may not utilize
> knowledge of your Modifications obtained under the terms of this License to
> design, develop, have others develop for it, market and/or distribute
> technology or products that that perform the same or similar function as,
> or otherwise compete with, Modifications, Larger Works, technology or
> products that You may develop, produce, market or distribute.
>
>
>
> 13.4 Waiver; Construction. Failure by ViraTrace to immediately enforce any
> provision of this License will not be deemed a waiver of future enforcement
> of that or any other provision. Any law or regulation which provides that
> the language of a contract shall be construed agains the drafter will not
> apply to this License.
>
>
>
> 13.5 Severability. (a) If for any reason a court of competent jurisdiction
> finds any provision of this License, or portion thereof, to be
> unenforceable, that provision of the License will be enforced to the
> maximum extent permissible so as to effect the economic benefits and intent
> of the parties, and the remainder of this License will continue in full
> force and effect. (b) Notwithstanding the foregoing, if applicable law
> prohibits or restricts You from fully and/or specifically complying with
> Section 2 and/or 3 or to issue a Disabling Update as defined in Section
> 1.11 and required by Section 12.2 or prevents the enforceability of those
> Sections, this License will immediately terminate and You must immediately
> discontinue any use of the Covered Code and destroy all copies of it that
> are in Your possession or control.
>
>
>
> 13.6 Dispute Resolution. Any litigation or other dispute resolution
> between You and ViraTrace relating to this License shall take place in the
> District of Colorado, and You and ViraTrace hereby consent to the personal
> jurisdiction of, and venue in, the state and federal courts within that
> District with respect to this License. The application of the United
> Nations Convention on Contracts for the International Sale of Goods is
> expressly excluded.
>
>
>
> 13.7 Entire Agreement; Governing Law. This License constitutes the entire
> agreement between the parties with respect to the subject matter hereof.
> This License shall be governed by the laws of the United States and the
> State of Colorado, except that body of Colorado law concerning conflicts of
> law.
>
> Where You are located in the province of Quebec, Canada, the following
> clause applies: The parties hereby confirm that they have requested this
> License and all related documents be drafted English. Les parties ont exige
> que le present contrat et tous les documents connezes soient rediges en
> angles.
>
>
>
> EXHIBIT A.
>
>
>
> "Portions Copyright (c) 1999-2007 ViraTrace LLC. All Rights Reserved.
>
>
>
> This file contains Original Code and/or Modifications of Original Code as
> defined in and that are subject to the ViraTrace Public Source License
> Version 1.0 (the 'License'). You may not use this file except in compliance
> with the License. Please obtain a copy of the License at
> https://github.com/ViraTrace/License and read it before using this file.
>
>
>
> The Original Code and all software distributed under the License are
> distributed on an 'AS IS' basis, WITHOUT WARRANTY OF ANY KIND, EITHER
> EXPRESS OR IMPLIED, AND ViraTrace HEREBY DISCLAIMS ALL SUCH WARRANTIES,
> INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS
> FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT. Please see
> the License for the specific language governing rights and limitations
> under the License."
>
>
>
> Regards,
>
>
>
> Wayne M. Thornton, B.S., CPDT
> Co-Founder & Project Manager
> VIRATRACE?
> 720-766-0254 ? Direct
>
> <https://www.viratrace.org/> https://www.viratrace.org
>
>
> Be sure to join our <https://teams.microsoft.com/join/lw83179ktnqf>
> Microsoft Teams channel for updates and to contribute!
>
> This message is intended only for the individual or entity to which it is
> addressed. It may contain privileged, confidential information which is
> exempt from disclosure under applicable laws. If you are not the intended
> recipient, please note that you are strictly prohibited from disseminating
> or distributing this information (other than to the intended recipient) or
> copying this information. If you have received this communication in error,
> please notify us immediately by e-mail. Thank you.
>
>
>
>
>
>
>
> ---- On Thu, 10 Dec 2020 11:36:28 -0700 Josh Berkus <josh at berkus.org
> <mailto:josh at berkus.org> > wrote ----
>
>
>
> On 12/9/20 6:53 PM, Wayne Thornton wrote:
> > First, regarding rationale: Our company is in the business of creating
> > frameworks and software products which facilitate automated contact
> > tracing initiatives across the globe. These frameworks and products must
> > be GDPR- and HIPPA-compliant and have been designed to be such, with
> > strict, ongoing legal review processes undertaken to ensure this. The
> > frameworks and products that we create are designed to be utilized by
> > governmental agencies and private corporations in the creation of
> > applications and platforms which aid in the fight against COVID-19 and
> > future pandemic scenarios. In order for this to be of benefit, the
> > frameworks and software we develop must be open source, so that the
> > governmental agencies and private corporations can be free to utilize
> > them. Unfortunately, due to the legal compliance issues vis-a-vis GDPR
> > and HIPPA, a level of control regarding development must be maintained.
> > It is our position that the GNU and other OSI-approved licenses do not
> > provide this level of control.
>
> I'm curious: did you consider, and reject, the CAL for this purpose? If
> you did, why was the CAL inadequate?
>
> I'm asking because the purpose you give above is exactly the sort of
> thing for which we passed the CAL (at least, it was my motivation).
>
>
> --
> Josh Berkus
>
>
>
>
>
> _______________________________________________
> The opinions expressed in this email are those of the sender and not
> necessarily those of the Open Source Initiative. Communication from the
> Open Source Initiative will be sent from an opensource.org <
> http://opensource.org> email address.
>
> License-review mailing list
> License-review at lists.opensource.org <mailto:
> License-review at lists.opensource.org>
>
> http://lists.opensource.org/mailman/listinfo/license-review_lists.opensource.org
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> *********************************************
>
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>
> _______________________________________________
> The opinions expressed in this email are those of the sender and not
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-- 
Eric Schultz, Developer and FOSS Advocate
wwahammy.com
eric at wwahammy.com
@wwahammy
Pronouns: He/his/him
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