[License-review] License-review Digest, Vol 95, Issue 7

Pamela Chestek pamela at chesteklegal.com
Tue Oct 20 03:51:07 UTC 2020


I believe this license is very flawed because it treats all supposed 
"IP" the same way. There is no clearly defined group of rights that are 
considered "IP." Even the three exclusive rights commonly assigned to 
that category (copyright, patent and trademark) have different policy 
reasons for existing and trying to treat them all the same way is, in my 
view, misguided.

Copyright and patents are somewhat similar, protecting that which is 
original and creative. Trademarks, though, are for the protection of 
commerce and fair competition. This license makes no sense for 
trademarks (which is why FOSS license almost never encompass 
trademarks). Trademark exist only because someone has exercised 
exclusivity over a word. If I adopt a trademark "Escalator" for a set of 
mechanical stairs, but I then tolerate (or license) everyone using the 
the word "escalator" for that same device, then it's not a trademark 
anymore because it doesn't denote a single source. A similar concept is 
true in trade secret rights - something is a trade secret because it's a 
secret. If everyone gets to use it then it's not a trade secret anymore.

Trademarks are used to prevent consumer deception. If one cannot stop 
misuse of their trademark, then there would be no recourse against 
someone who might be causing great harm. Suppose I have a software 
program that prevents the installation of malicious software and it is 
licensed under the Anti-IP license. Some can take that very same 
software, modify it so that it is itself malicious software, and 
distribute it with the same name. Under this license there is nothing 
the original author can do to stop that harmful behavior. That's a bad 
outcome. It's made even more confusing by your proposed term "No 
Licensable IP or Restricted work may be used to commit fraud." Is 
"likelihood of confusion" in trademark law what you mean by "fraud"? And 
how will the person relying on the license know when their use is lawful 
or unlawful? The premise of your license doesn't make sense for trademarks.

Universal treatment doesn't make any sense in many of the areas you 
identified in the license. Why should privacy rights, which protect an 
individual, be treated the same way as exclusionary rights in copyright 
and patent? Aren't the interests quite different? Isn't is generally 
considered beneficial that an individual may stop the unwanted use of 
their personal information by third parties? What is gained by forcing 
someone to give that up? Same with fair competition, isn't the ability 
to ensure fair competition beneficial to society?

For "Restricted Work," you've used the word "derivative," but that is a 
word very specific to copyright law. It's use in other areas is 
impossibly ambiguous. What is a "Restricted Work" in anti-circumvention 
rights for example, where there isn't the concept of "infringement"?

In terms of drafting, I'm not sure what you intend with "Restricted 
works may only be assigned to someone that has publicly licensed IP 
under this document." Does that mean that if I want to assign the rights 
in a Restricted work to someone who is already using the license for a 
/different/ work? Why? And what does "publicly licensed" mean in the 
Copyleft section of the license? The word "public" is very unclear.

If I own a Public Restricted work, I have to assign it away? That 
doesn't make sense. If you mean /if/ I assign it, /then/ I must assign 
it to a particular person or alternatively grant everyone rights, why is 
the assignment of Restricted works different from Public Restricted 
works? And what does it mean to "grant everyone rights to the work under 
this document"? Isn't that what the license accomplishes, whether it 
says so in this section or not? What does that sentence add?

I believe this license needs substantial drafting work before it could 
be approved. I agree with others that it needs the assistance of an 
attorney who is experienced in drafting licenses - drafting legal 
documents is a specialized skill. I am also skeptical it would ever be 
approved because I think it is a fundamental error to try to lump all 
"IP" together. I suggest withdrawing it from license-review while these 
issues are more thoroughly considered.

Pam

Pamela Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602


On 10/16/20 11:26 AM, Alex Williams wrote:
> Dear Kevin,
> I wasn't clear with my wording.  I believe the license is complete 
> subject to feedback I receive about how to improve its wording or to 
> address any issues that it might have.
> I'm happy to move this to license discussion if you or any of the 
> reviewers believe that is appropriate.  Should I do that now, or 
> should I wait for further questioning on this thread to get a better 
> assessment of which list the license is best in its current state?
>
> I also should state that I'm not a lawyer.  The intention with this 
> modification would be that if fraud is committed the license would 
> stay fully intact... but the owner's reserve the right to sue for IP 
> infringement for the limited area of areas associated with the fraud.
>
> For example, identity theft defrauds a bank rather than the owner of 
> the identity.  Some people argue identity is a form of IP.  So, in 
> this case the "No fraud" clause would clarify that the owners are not 
> waiving their right to recourse in damages caused by identity theft.
>
> Would this intention be permissible within OSIs definition of open 
> source?  If so, do you believe I should add clarifying language such as:
> Fraudulent use does not terminate your license.  However, no legal 
> remedies for IP infringement are waived for fraudulent use.
>
> -Alex
>
> On Fri, Oct 16, 2020 at 10:00 AM 
> <license-review-request at lists.opensource.org 
> <mailto:license-review-request at lists.opensource.org>> wrote:
>
>     Send License-review mailing list submissions to
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>     When replying, please edit your Subject line so it is more specific
>     than "Re: Contents of License-review digest..."
>
>
>     Today's Topics:
>
>        1. Re: Anti-IP License (McCoy Smith)
>        2. Re: license review request (Simon Phipps)
>        3. Re: License-review Digest, Vol 95, Issue 6 (Alex Williams)
>        4. Re: License-review Digest, Vol 95, Issue 6 (Kevin P. Fleming)
>
>
>     ----------------------------------------------------------------------
>
>     Message: 1
>     Date: Fri, 16 Oct 2020 07:04:13 -0700
>     From: "McCoy Smith" <mccoy at lexpan.law>
>     To: "'License submissions for OSI review'"
>             <license-review at lists.opensource.org
>     <mailto:license-review at lists.opensource.org>>
>     Subject: Re: [License-review] Anti-IP License
>     Message-ID: <064601d6a3c5$3a973080$afc59180$@lexpan.law>
>     Content-Type: text/plain;       charset="us-ascii"
>
>     This is an interesting concept, but poorly executed. Kevin points
>     out one
>     problem. Another is that it doesn't anywhere discuss source code
>     (which
>     would seem to violate OSD 2).
>     I'd say this is one that really needs a lawyer's involvement, to
>     ensure its
>     terms meet the goals of the author and also satisfy the OSD.
>     FWIW, I'm not sure how this would be found "unconscionable" at
>     least under
>     USA law; it appears to be something like an attempt to do a
>     copyleft public
>     domain dedication, which AFAIK, isn't unconscionable.
>
>     > -----Original Message-----
>     > From: License-review
>     <license-review-bounces at lists.opensource.org
>     <mailto:license-review-bounces at lists.opensource.org>> On
>     > Behalf Of Kevin P. Fleming
>     > Sent: Friday, October 16, 2020 6:29 AM
>     > To: License submissions for OSI review
>     <license-review at lists.opensource.org
>     <mailto:license-review at lists.opensource.org>>
>     > Subject: Re: [License-review] Anti-IP License
>     >
>     > On Fri, Oct 16, 2020 at 8:18 AM Alex Williams
>     <implementnap at gmail.com <mailto:implementnap at gmail.com>>
>     > wrote:
>     >
>     > > No Fraud
>     > >
>     > > No Licensable IP or Restricted work may be used to commit
>     fraud. If you
>     are
>     > found guilty of committing fraud using any of the Licensable IP or a
>     Restricted
>     > work in a court of law, then your license ends immediately.
>     >
>     > This is a restriction on use, and thus generally considered to be
>     incompatible
>     > with the OSD. If this was to have any chance at approval at all, the
>     license
>     > termination would need to apply to only the limited usage of the
>     covered
>     > works which were involved in the fraudulent activity. If the
>     licensee also
>     uses
>     > the covered works in other activities, which have not been
>     determined to
>     be
>     > fraudulent, then those licenses would have to stay in force. My
>     opinion of
>     > course, IANAL, yadda yadda.
>     >
>     > _______________________________________________
>     > 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-
>     <http://lists.opensource.org/mailman/listinfo/license->
>     > review_lists.opensource.org <http://review_lists.opensource.org>
>
>
>
>
>     ------------------------------
>
>     Message: 2
>     Date: Fri, 16 Oct 2020 15:08:09 +0100
>     From: Simon Phipps <simon at webmink.com <mailto:simon at webmink.com>>
>     To: mccoy at lexpan.law,  License submissions for OSI review
>             <license-review at lists.opensource.org
>     <mailto:license-review at lists.opensource.org>>
>     Subject: Re: [License-review] license review request
>     Message-ID:
>            
>     <CAA4ffp_gmiN81MbjknO-jp54+s7yiJ2o55cwXW+QCjQKPyOFhg at mail.gmail.com
>     <mailto:CAA4ffp_gmiN81MbjknO-jp54%2Bs7yiJ2o55cwXW%2BQCjQKPyOFhg at mail.gmail.com>>
>     Content-Type: text/plain; charset="utf-8"
>
>     I agree. This is a submission that would have been better caught in
>     moderation and rejected with an explanation of the misunderstanding.
>
>     S.
>
>     On Fri, Oct 16, 2020 at 2:53 PM McCoy Smith <mccoy at lexpan.law> wrote:
>
>     > This appears to be nothing more than 2-clause BSD:
>     > https://opensource.org/licenses/BSD-2-Clause
>     <https://opensource.org/licenses/BSD-2-Clause>
>     >
>     >
>     >
>     > It?s not clear why you are looking for approval for an
>     already-approved
>     > license.
>     >
>     >
>     >
>     > [Also, you didn?t seem to provide the information required for a
>     license
>     > submission: https://opensource.org/approval
>     <https://opensource.org/approval>, in particular, whether this
>     > received legal review and distinguishing it from OSI approved
>     licenses,
>     > particularly BSD 2-clause]
>     >
>     >
>     >
>     > *From:* License-review
>     <license-review-bounces at lists.opensource.org
>     <mailto:license-review-bounces at lists.opensource.org>> *On
>     > Behalf Of *Seung-Eon Roh
>     > *Sent:* Friday, October 9, 2020 1:16 PM
>     > *To:* license-review at lists.opensource.org
>     <mailto:license-review at lists.opensource.org>
>     > *Subject:* [License-review] license review request
>     >
>     >
>     >
>     > Dear,
>     >
>     >
>     >
>     > I?m writing to request an approval of open source license for a
>     matlab
>     > code for neuroscience data analysis.
>     >
>     >
>     >
>     > *Submission type*: Approval
>     >
>     >
>     >
>     > *License name*: Calcium signal processing for neuroscience
>     >
>     >
>     >
>     > *License*:
>     >
>     > Copyright (c) 2020, Seung-Eon Roh
>     >
>     > All rights reserved.
>     >
>     >
>     >
>     > Redistribution and use in source and binary forms, with or without
>     > modification, are permitted provided that the following
>     conditions are met:
>     >
>     >
>     >
>     >     * Redistributions of source code must retain the above copyright
>     >
>     >       notice, this list of conditions and the following disclaimer.
>     >
>     >     * Redistributions in binary form must reproduce the above
>     copyright
>     >
>     >       notice, this list of conditions and the following
>     disclaimer in
>     >
>     >       the documentation and/or other materials provided with the
>     > distribution
>     >
>     >
>     >
>     > THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND
>     CONTRIBUTORS "AS
>     > IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT
>     LIMITED TO,
>     > THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
>     PARTICULAR
>     > PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR
>     > CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
>     SPECIAL,
>     > EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO,
>     > PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA,
>     OR PROFITS;
>     > OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF
>     LIABILITY,
>     > WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING
>     NEGLIGENCE OR
>     > OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE,
>     EVEN IF
>     > ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
>     >
>     >
>     >
>     > *The link to public link for the code*:
>     >
>     > https://github.com/NeuRoh1/Calcium_signal_processing
>     <https://github.com/NeuRoh1/Calcium_signal_processing>
>     >
>     >
>     >
>     > I?m enclosing a Matlab code which will be licensed for.
>     >
>     >
>     >
>     >
>     >
>     > --
>     >
>     > This licensing is intended to support the supplement
>     documentation of
>     > matlab code for an article publication in eLife Journal. Please
>     let me know
>     > if the request is in a good shape.
>     >
>     >
>     >
>     > Thanks,
>     >
>     >
>     >
>     > Seung-Eon Roh
>     >
>     > Post-doc researcher
>     >
>     > Department of Neuroscience
>     >
>     > Johns Hopkins University
>     >
>     > Baltimore, MD
>     > _______________________________________________
>     >
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>     ------------------------------
>
>     Message: 3
>     Date: Fri, 16 Oct 2020 09:47:35 -0500
>     From: Alex Williams <implementnap at gmail.com
>     <mailto:implementnap at gmail.com>>
>     To: license-review at lists.opensource.org
>     <mailto:license-review at lists.opensource.org>
>     Subject: Re: [License-review] License-review Digest, Vol 95, Issue 6
>     Message-ID:
>            
>     <CA+ujgfOhjZQPEcuvsO1sbfCHzk68ZhYZt9R=GwrtdMRmWRv2Sw at mail.gmail.com
>     <mailto:GwrtdMRmWRv2Sw at mail.gmail.com>>
>     Content-Type: text/plain; charset="utf-8"
>
>     Dear Kevin:
>     I thought about your comment on the fraud section. I don't think
>     we need
>     license termination for that section. What if the section merely read:
>     No Licensable IP or Restricted work may be used to commit fraud
>
>     Would that change address your concern regarding "No
>     Discrimination against
>     fields of endeavor"?
>
>     Also, thank you for taking the time to review the license. If we can
>     perfect it and get it approved, I plan to use it in my company and
>     encourage others to do so as well. Overall, I think the license
>     has reached
>     a stable point in terms of intent. However, I suspect there are
>     sections
>     where the wording can be improved. So, I'm happy to work with any
>     constructive feedback you might have. In reference to one comment, I
>     received recently here is one question I have: Here are my current
>     questions:
>     Is there any substantial difference between:
>       a) "Licensable IP" means all IP the owners of the included work
>     can or
>     will be able to license.
>       b) "Licensable IP" means all IP the owners of the included work
>     can or
>     will be able to license that would otherwise infringe that owner's IP
>     rights.
>
>     If so, which definition is better?
>
>     -Alex
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>     ------------------------------
>
>     Message: 4
>     Date: Fri, 16 Oct 2020 10:59:23 -0400
>     From: "Kevin P. Fleming" <kevin+osi at km6g.us
>     <mailto:kevin%2Bosi at km6g.us>>
>     To: License submissions for OSI review
>             <license-review at lists.opensource.org
>     <mailto:license-review at lists.opensource.org>>
>     Subject: Re: [License-review] License-review Digest, Vol 95, Issue 6
>     Message-ID:
>            
>     <CAE+UdorG=FKOCFbwEQq+ADJKoY47sFfSqRQu06Tr_-AJ-kMPcQ at mail.gmail.com
>     <mailto:FKOCFbwEQq%2BADJKoY47sFfSqRQu06Tr_-AJ-kMPcQ at mail.gmail.com>>
>     Content-Type: text/plain; charset="UTF-8"
>
>     If you're still drafting the license, this should be moved to
>     license-discuss, not on license-review. Submission for approval should
>     be for a license that you consider to be complete, and that you revise
>     based on feedback during the review process.
>
>     Regarding the 'field of endeavor' restriction, I'm not a lawyer, but I
>     don't see how your suggested change would make any difference. If you
>     tell the licensee that the covered works cannot be used to commit
>     fraud, then that implies that the license is
>     vacated/nullified/terminated in that situation.
>
>     On Fri, Oct 16, 2020 at 10:48 AM Alex Williams
>     <implementnap at gmail.com <mailto:implementnap at gmail.com>> wrote:
>     >
>     > Dear Kevin:
>     > I thought about your comment on the fraud section. I don't think
>     we need license termination for that section. What if the section
>     merely read:
>     > No Licensable IP or Restricted work may be used to commit fraud
>     >
>     > Would that change address your concern regarding "No
>     Discrimination against fields of endeavor"?
>     >
>     > Also, thank you for taking the time to review the license. If we
>     can perfect it and get it approved, I plan to use it in my company
>     and encourage others to do so as well. Overall, I think the
>     license has reached a stable point in terms of intent. However, I
>     suspect there are sections where the wording can be improved. So,
>     I'm happy to work with any constructive feedback you might have.
>     In reference to one comment, I received recently here is one
>     question I have: Here are my current questions:
>     > Is there any substantial difference between:
>     >   a) "Licensable IP" means all IP the owners of the included
>     work can or will be able to license.
>     >   b) "Licensable IP" means all IP the owners of the included
>     work can or will be able to license that would otherwise infringe
>     that owner's IP rights.
>     >
>     > If so, which definition is better?
>     >
>     > -Alex
>     > _______________________________________________
>     > 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
>     <http://lists.opensource.org/mailman/listinfo/license-review_lists.opensource.org>
>
>
>
>     ------------------------------
>
>     Subject: Digest Footer
>
>     _______________________________________________
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>     ------------------------------
>
>     End of License-review Digest, Vol 95, Issue 7
>     *********************************************
>
>
> _______________________________________________
> 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 email address.
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