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

Wed Jun 9 19:11:01 UTC 2021

Forwarding to license-review. I asked a question specifically about the 
interpretation of a sentence in a license that is pending review. I 
would like the opportunity for others to provide input if they like and 
a number of people on this list don't read license-discuss.

McCoy asked Larry to discuss his OWN license on license-discuss. I agree 
with that. But this question was about the 3D Slicer License, not 
Larry's license.

Pam

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

-------- Forwarded Message --------
Subject: 	Re: [License-discuss] [License-review] request for review of 
the 3D Slicer License
Date: 	Wed, 9 Jun 2021 08:40:45 -0700
From: 	Lawrence Rosen <lrosen at rosenlaw.com>
Reply-To: 	lrosen at rosenlaw.com, license-discuss at lists.opensource.org
To: 	license-discuss at lists.opensource.org

[Returning this to license-discuss@]

Pam, you are misreading my response. If the word “agree” turns this 
license into a bilateral license, even then the provision is enforceable 
and the license is contrary to the OSD, just as a “you agree not to 
export contrary to US law” provision is unfortunate with the OSD but 
nevertheless enforceable in the US. Whether a court will call it a 
“condition on the copyright grant” is something that lawyers like you 
will argue about incessantly to no avail until the judge speaks. (Do you 
remember the nonsense about the Artistic license and its “conditions” 
where the court had to search hard to find some condition not explicitly 
called a condition it could enforce?)

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.

I said no such thing. There are issues more important, such as the 
unfortunate formation of a bilateral contract.  But if you forced me to 
take a position in a brief to the court (depending on who my client 
might be!), I would argue that an “agreement” by the licensee is an 
enforceable condition precedent (“don’t violate or the license won’t 
take effect”) or condition subsequent (“don’t violate or the license 
terminates”) simply because the licensee agreed to it. Does it matter 
**when** the condition is breached?

There are various reasons I have largely ignored license submissions on 
this site in recent years. One, I am largely retired from the actual 
practice of law. Second, I am frustrated at the continuous efforts by 
software vendors to find yet another way to say the same thing about the 
use of their software so that licensees and you can quibble forever 
about it. Third, I see nothing important in the 3D Slicer License that 
would make me worry about using that software as open source **in 
conformity with US law**. And finally, many years ago I wrote several 
licenses whose words are continually ignored by the “experts” on this 
list as if they don’t matter to anyone because there is some subtle and 
unique “condition” that I perhaps forgot at the time.

It is all a waste of energy and a continuing puzzle imposed on the use 
of open source software probably because people on this list find such 
arguments fun. But I don’t.

For what it may be worth, I will repeat what I said below: “License 
drafting is not a job for the amateur.” I’m sure you feel the same way 
about trademarks!

/Larry

*From:* License-review <license-review-bounces at lists.opensource.org> *On 
Behalf Of *Pamela Chestek
*Sent:* Wednesday, June 9, 2021 6:31 AM
*To:* License submissions for OSI review 
<license-review at lists.opensource.org>
*Subject:* Re: [License-review] request for review of the 3D Slicer License

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 <mailto:pamela at chesteklegal.com>
www.chesteklegal.com <http://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>
    <mailto: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
    <mailto: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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