[License-review] Request for Legacy Approval of PHP License 3.01

McCoy Smith mccoy at lexpan.law
Thu Mar 5 18:17:04 UTC 2020

>>From: License-review <license-review-bounces at lists.opensource.org> On Behalf Of Pamela Chestek
>>Sent: Thursday, March 5, 2020 9:41 AM
>>To: license-review at lists.opensource.org
>>Subject: Re: [License-review] Request for Legacy Approval of PHP License 3.01



>>On 3/5/2020 12:06 PM, VanL wrote:


>>My first instinct is to point out that registration is not required to have an enforceable mark. PHP is pretty well-known in its space, and so I wouldn't be surprised if this provision were fully enforceable under common law trademark provisions, and, if needed, the PHP project could get a registration pretty quickly as the senior user.


Yes, this is indeed true.  But note the restriction is not limited to their mark, common law or otherwise.  It attempts to preclude a much broader scope of designation of origin than that, and put limits on how those designations may be articulated.  And it’s a limitation on the scope of the copyright grant, meaning they could conceivably make a claim for copyright infringement for using a naming convention to which they may not be entitled to enforce under trademark law.  I’m specifically referring to the part of the license restriction that says “nor may "PHP" appear in their name, without prior written permission from group at php.net <mailto:group at php.net> .” I’m wondering if the companies that spun off from the Hewlett-Packard Company (“HP”) might have problems with the breadth of this restriction.


  >>"6. Redistributions of any form whatsoever must retain the following acknowledgment: "This product includes PHP software, freely available from <http://www.php.net/software/>"."

>>Agree wholeheartedly with Van. I read this as not allowing a trademark use but allowing a nominative use, which is how I read the Apache license too. 


Sec 6 to me is badge-ware-ish, although what the dividing line is between badgeware and acceptable author acknowledgements is perhaps a bit murky.  Perhaps because it does not require the location or manner of the display of that message (cf., BSD 4-clause), it falls on the non-badgeware side of the divide.

>>I don't know that there is no software out there using 3.0. If they is, why would they suddenly become "not open source" simply because there is a later version of the license? 


Deprecation does not mean “not open source.” It just means “this is an older version of a license, of which a newer, or more preferable, version exists on the list.”  The actual categories that OSI uses for deprecated licenses are “Superseded licenses” and “Licenses that have been voluntarily retired”  At a minimum, I think PHP 3.0 ought to go in the “Superseded” category if PHP 3.01 is approved.


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