[License-review] request for review of the 3D Slicer License

Wed Jun 9 13:31:20 UTC 2021

Larry,

You've misunderstood my question. No one questioned that the term is 
enforceable or that the licensee has agreed to it. The question was 
whether the phrase in the 3D license is a condition on the copyright 
grant or not. If it is a condition, then the copyright license 
terminates on a licensee's failure to act lawfully, which, as you agree, 
is a violation of OSD 6. You seem to take the view that it's not a 
condition. I was asking you to parse the language in the 3D Slicer 
license to explain how you reached that legal conclusion.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com

On 6/8/2021 9:02 PM, Lawrence Rosen wrote:
>
> Hi Pam, I’m moving this to license-discuss at .
>
> If you believe that the language in the 3D Slicer license doesn't 
> terminate the license I'd be interested in hearing how you parse the 
> sentence. For your reference, the sentence is: "You further agree to 
> use, reproduce, make derivative works of, display and distribute the 
> Software in compliance with all applicable governmental laws, 
> regulations and orders, including without limitation those relating to 
> export and import control."
>
> As I tried to make clear in my own licenses, I don’t believe it is 
> appropriate to require a licensee “to agree” to anything in “a 
> unilateral contract”. Perhaps that is too subtle for this list, but I 
> believe there is legal authority for that difference from “a bilateral 
> contract” in which both parties accept obligations. I was very careful 
> in my drafting.
>
> This is a legal distinction from “a condition” that must be met by 
> every licensee. Please review the legal distinction between 
> “unilateral” and “bilateral” contracts. (Google is helpful here!)
>
> So since the 3D Slicer license requires an agreement from the 
> licensee, that turns this into a bilateral contract. I agree with 
> others on this list, including you, that requiring a licensee to agree 
> to honor the law goes beyond the open source definition. On the other 
> hand (since every lawyer has two hands!) a failure to obey the law can 
> result in legal penalties, not from the licensor but from the 
> government. I do not believe it is inappropriate for OSI, and 
> individual licenses, to remind licensees about that. It doesn’t hurt 
> to do so. As McCoy suggests, it is probably surplusage.
>
> We tackled this problem at OSI years ago in the context of export 
> restrictions in US law. Several drafters attempted to insert an 
> “export” provision in their licenses, which OSI rejected. But a 
> licensee’s rights to certain software may be withdrawn by the 
> government if they attempt to export in contravention to that law.
>
> As for what Thai law mandates or prohibits, I say nothing.
>
> License drafting is not a job for the amateur.
>
> /Larry
>
> *From:* License-review <license-review-bounces at lists.opensource.org> 
> *On Behalf Of *Pamela Chestek
> *Sent:* Tuesday, June 8, 2021 4:22 PM
> *To:* license-review at lists.opensource.org
> *Subject:* Re: [License-review] request for review of the 3D Slicer 
> License
>
> Larry,
>
> As others have pointed out, there's a difference between my duty to 
> comply with laws, in which case compliance with those laws may mean I 
> am not at liberty to exercise the license granted to me, and whether 
> or not the license to me terminates because I failed in a duty not to 
> break the law. It is the latter situation that is a violation of OSD6 
> and the objection to the license under review.
>
> If you believe that the language in the 3D Slicer license doesn't 
> terminate the license I'd be interested in hearing how you parse the 
> sentence. For your reference, the sentence is: "You further agree to 
> use, reproduce, make derivative works of, display and distribute the 
> Software in compliance with all applicable governmental laws, 
> regulations and orders, including without limitation those relating to 
> export and import control."
>
> Pam
>
> Pamela S. Chestek
> Chestek Legal
> PO Box 2492
> Raleigh, NC 27602
> 919-800-8033
> pamela at chesteklegal.com <mailto:pamela at chesteklegal.com>
> www.chesteklegal.com <http://www.chesteklegal.com>
>
>
> On 6/8/2021 4:49 PM, Lawrence Rosen wrote:
>
>     Simon, I’ve never been to Thailand nor reviewed its software laws.
>     But in the US, if you distribute open source software that
>     violates the export law of the US, you could go to jail. “Open
>     source” is irrelevant. Copyright law is irrelevant. /Larry
>
>     Lawrence Rosen
>
>     707-478-8932
>
>     3001 King Ranch Rd., Ukiah, CA 95482
>
>     lrosen at rosenlaw.com <mailto:lrosen at rosenlaw.com>
>
>     LinkedIn: Lawrence Rosen
>
>     *From:* Simon Phipps <simon at webmink.com> <mailto:simon at webmink.com>
>     *Sent:* Tuesday, June 8, 2021 12:04 PM
>     *To:* Lawrence Rosen <lrosen at rosenlaw.com>
>     <mailto:lrosen at rosenlaw.com>; License submissions for OSI review
>     <license-review at lists.opensource.org>
>     <mailto:license-review at lists.opensource.org>
>     *Subject:* Re: [License-review] request for review of the 3D
>     Slicer License
>
>     On Tue, Jun 8, 2021 at 6:46 PM Lawrence Rosen <lrosen at rosenlaw.com
>     <mailto:lrosen at rosenlaw.com>> wrote:
>
>         Here is AFL 3.0, section 15:
>
>         15) *Right to Use.* You may use the Original Work in all ways
>         not otherwise restricted or conditioned by this License or by
>         law, and Licensor promises not to interfere with or be
>         responsible for such uses by You.
>
>     Please help me understand this. If I were in Thailand and used AFL
>     3.0 licensed software to publish a call for a republic, would I be
>     in breach of the author's copyright as well as in breach of their
>     /lese majeste/ laws?
>
>     S.
>
>
>
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