[License-review] For Approval: Open Logistics License

Pamela Chestek pamela.chestek at opensource.org
Wed Jul 6 12:10:03 UTC 2022


Hi Andreas,

Our preference would be to withdraw the license and then resubmit it 
after it has been amended. The reason for this is that it gets very 
confusing to review a license that keeps changing, since you're not sure 
whether you're looking at the correct version or not.

I would also encourage use of the license-discuss list (signup on this 
<https://opensource.org/lists> page) to iterate on the license before 
formally submitting it. That's a place intended for this kind of work, 
the back-and-forth in getting the wording as perfect as possible. Then, 
once the language is finalized, submit it again to the license-review 
list for approval.

Pam

Pamela Chestek
Chair, License Committee
Open Source Initiative

On 7/6/2022 4:18 AM, Andreas Nettsträter wrote:
>
> Hi Pam,
>
> thanks for the detailed commenting. This helps a lot.
>
> The license exists only in English, so we are talking about the 
> correct document. We’ve realized that we should check again the 
> grammar and words, especially with regards to formal terms and 
> different meaning in US and Europe.
>
> In general, we don’t see bigger problems or conflicts with most of 
> your points. We already discussed possible changes and adoptions 
> addressing your comments.
>
> What would be the best way to go on and also to make it easier for you 
> to follow the changes? Should we update the complete license text and 
> resubmit it or should we come up with inline answers to your e-mail?
>
> We need to have some discussions with our partners regarding the main 
> blocker (patents opt-out). I fully understand your considerations and 
> it was also not my preferred option.
>
> Regards
>
> Andreas
>
> *Von:* License-review <license-review-bounces at lists.opensource.org> 
> *Im Auftrag von *Pamela Chestek
> *Gesendet:* Dienstag, 5. Juli 2022 00:32
> *An:* license-review at lists.opensource.org
> *Betreff:* Re: [License-review] For Approval: Open Logistics License
>
> (In my personal capacity)
>
> Hi Andreas,
>
> Is English the language of the agreement? I want to make sure we're 
> reviewing the actual agreement itself, not your translation of it. If 
> the license is in German, we will need to have the German version and 
> a certified translation for review.
>
> Here are my concerns about this license:
>
> _Definition for "Subject Matter of the License" _
> This is confusingly defined. It states that it means "the copyrighted 
> works of the software components ..." and continues "as well as the 
> other components protected under copyright, design and/or patent law 
> which are made available under this license ... as well as the 
> application and user documentation."
>
> First, with respect to the first use of the word "copyrighted," that 
> suggests the license is going to be limited to just the copyrightable 
> content, not, for example, any patentable content. The Apache 
> license's parallel provision, which is the definition for the "Work," 
> is somewhat similarly flawed because it uses the term of art 
> "authorship," which one can read as limiting the license to only 
> copyright content. That's something we cannot change in the Apache 
> license, but I would suggest removing the "copyrighted" limitation 
> from this license to make sure it isn't construed as limited to only 
> content that is copyrightable.
>
> The same definition then refers to "as well as the other components 
> protected under copyright, design and/or patent law which are made 
> available under this license in accordance with a copyright notice 
> inserted into or attached to the work ...." This clause seems 
> unnecessary. If a third-party included component states that it is 
> under the Open Logistics License, then there is no need to also 
> mention it in the license for the larger work. It will only cause 
> problems in license interpretation.
>
> This phrase also likely goes beyond what may be the original scope of 
> the license for the "other component." The text says the Open 
> Logistics License applies to "the other components protected under 
> copyright, design and/or patent law ... */as well as the application 
> and user documentation/*." This says that the Open Logistics License 
> will apply to the "application and user documentation" of third party 
> components, which would appear to be regardless of what the licenses 
> actually are for the application and documentation as assigned by the 
> owner of the third party component. This is a copyleft - I assume it 
> wasn't intended, but that's what it says.
>
> If the intent was that the Open Logistics License applies to 
> "application and user documentation" for the originally licensed code, 
> not for the "other components," the sentence needs to be restructured. 
> At the moment it states fairly clearly (under US English grammar 
> rules) that the "application and user documentation" is referring to 
> the "other components," not the larger work being licensed.
>
> Also, if the intention is that the Open Logistics License applies, not 
> only to the code, but to the "application and user documentation," 
> this isn't necessarily a problem but I question whether it is a wise 
> choice to require that text works, like documentation, be under the 
> same license as the software code. It also seems to be a bit of a trap 
> for the unwary; I expect that most people believe that the software 
> code and its documentation can be separately licensed and won't 
> realize that the code license is also dictating the documentation license.
>
> Finally, what is the "application" and how does it differ from the 
> work being licensed?
> _
> Definition for "Source Code"_
> It is defined as "in the programming language." I'm not sure why this 
> was changed from the common and well-understood concept of that source 
> code is the preferred form for making modifications. I am just wary of 
> new definitions when there is a well-understood and perfectly 
> serviceable definition. It is an opportunity to create ambiguity about 
> the meaning and intent for the term. What problem were you trying to 
> solve with this new definition?
>
> _Definition of "Object Code"_
> What does the word "interim" do? Shouldn't the final manifestation of 
> the code that will run on the computer also be considered "object code"?
>
> _§2 Granting of usage rights
> _Why is the grant so detailed? Why is it not simply a grant of all the 
> rights of the copyright owner, similar to what you have done for the 
> patent grant? What grant have you made that isn't also a grant of one 
> of the exclusive rights of the copyright owner? My concern about such 
> a detailed grant, rather than one that simply reiterates all the 
> exclusive rights of the copyright owner, is that there will be 
> unintentional loopholes. I see from your website that you intend to 
> ensure that the rights as described in the Supplementary Terms of 
> Contract for the Procurement of IT Services are clearly granted, but 
> perhaps it would be better to grant all copyright rights (e.g., 
> reproduce, distribute, exhibit, make available, etc.) and then add 
> "including, but not limited to," the rights you have enumerated.
>
> _§3 Grant of a patent license_
> The grant of the copyright license is "for the terms of the 
> copyrights" but the term of the patent grant is not stated. I don't 
> think it's necessary to state a term since the grant is perpetual, but 
> having two clauses that say something different invites challengers to 
> find some distinction between the two. It would also be easier to 
> understand the license if the terms of the patent license grant 
> (non-exclusive, perpetual, etc.) was parallel to the grant in the 
> copyright license. It would then be clear that the scope of both 
> grants is meant to be the same.
>
> "Under no circumstances will anything in this Section 3 be construed 
> as granting, by implication, estoppel or otherwise, a license to any 
> patent for which the respective Contributors have not granted patent 
> rights when they submitted their respective Contributions." What is 
> this sentence designed to do? The grant clause defines the grant 
> (patents that read on the contribution or the whole work at the time 
> of contribution). It's not necessary to say that there is no grant of 
> what is not granted.
>
> As to the patent license termination, it does not appear to be limited 
> to proceedings for infringement only of patents that were licensed, 
> but any patent infringement lawsuit at all brought by a licensee. 
> (This might also be McCoy's point.) Also, as I read it, not only is 
> the patent license terminated, but the entire license is terminated: 
> "all patent licenses which have been granted to You under this License 
> for the Subject Matter of the License */as well as this License in 
> itself/* [that is, the Open Logistics License as a whole] shall be 
> deemed terminated ..." Was that the intent? I know that termination 
> provisions vary and I'm not sure what the current view is on the 
> appropriateness of terminating the copyright license too, but there 
> are OSI-approved licenses that terminate the copyright grant too.
>
> I don't understand this sentence: "the Contributors are entitled to 
> decide in their own discretion to abandon respectively maintain any 
> patent designated by patent number upon delivery of the Subject Matter 
> of the License." It is the words "to abandon respectively maintain any 
> patent ... upon delivery of the Subject Matter of the License" that 
> are very unclear. What does "abandon respectively maintain any patent" 
> mean? It is saying both abandon and maintain without any conjunction.
>
> You state "We have been asked by some partners of the current project 
> for which the license has been drafted to include the possibility that 
> they submit a list of patents they are not willing to contribute to 
> the work. This is reflected in the license text. However, it is part 
> of our workflow for the inclusion of contributions into the project 
> that no contributions would be accepted where a patent that would be 
> part of such list of patents excluded from the contribution could be 
> applicable." If above sentence is where you are stating that a 
> patentee may withhold a patent license to its contribution, it will 
> block the license from being approved. A license that allows someone 
> to withhold patents from licensing is inconsistent with the OSD and 
> cannot be approved. It doesn't matter that your project doesn't accept 
> patent-encumbered software, in order for a license to be approved by 
> the OSI it must be acceptable for all users in all circumstances.
>
> If instead this sentence is meant to advise that a patentee can 
> "release their patents in order to make them available to the public" 
> as you mention below, which I understand to mean abandoning patent 
> rights, I don't think it's necessary to say that expressly in the 
> license. No one using the software will insist that a patentee 
> maintain a patent.
>
> _§7 Limited warranty
> _"This License is granted free of charge and thus constitutes a gift. 
> Accordingly, any warranty is excluded." Is that the undeniable 
> conclusion under German law or is this statement enforceable as a 
> matter of contract? That wouldn't necessarily be the case under US 
> law. In the US a license grant isn't necessarily a gift and one can't 
> transform it into a gift by just saying so.
>
> Does the statement "The Subject Matter of the License is not completed 
> and may therefore contain ... additional patents of Contributors" a 
> reference to patents that are carved out of the grant (not acceptable, 
> as mentioned above)? If not, what is the meaning?
>
> _§8 Limitation of liability_
> Reiterating Eric's point that "Except in cases of intent and gross 
> negligence or causing personal injury" is unclear. Is it two things, 
> causing personal injury intentionally or causing personal injury 
> through gross negligence, or three things, an intentional tort not 
> related to personal injury, gross negligence not related to personal 
> injury, and personal injury no matter how caused, even if only by 
> simple negligence? Can the language be clarified?
>
> Regarding intentional infringement, as well as that the software is 
> "accurate, devoid of mistakes, complete and/or usable for any 
> purpose," are these claims that cannot be excluded by contract under 
> German law?
>
> As to others' comments about the applicable law provision, there are 
> other approved licenses that have choice-of-law provisions, so I don't 
> see that as a stopper. What I see as the stopper is the ability to NOT 
> grant a patent license for a patent that reads on a contribution. That 
> is a full stop for OSI approval.
>
> It also is not a well-drafted English-language license, as I've 
> described above. We have learned from experience that these licenses 
> can have lives that are longer than ours and a drafting error or 
> ambiguity will last forever. For that reason I believe it is important 
> that new open source licenses be written as cleanly as possible. This 
> one, though, has a number of flaws that I believe make it unacceptable 
> as a new open source license.
>
> Pam
>
> Pamela S. Chestek
> Chestek Legal
> PO Box 2492
> Raleigh, NC 27602
> 919-800-8033
> pamela at chesteklegal.com
> www.chesteklegal.com 
> <https://deu01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.chesteklegal.com%2F&data=05%7C01%7Candreas.nettstraeter%40openlogisticsfoundation.org%7Cb2351ae257394d74e19208da5e0d216d%7Cb346d634acfb42c7bd44f1557ee89b1b%7C1%7C0%7C637925707753675801%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C2000%7C%7C%7C&sdata=yH87s1esavahZ1c0%2FFVF%2BwbZHgRBYeGLx4nijyJIDSw%3D&reserved=0>
>
>
>
> On 5/30/2022 5:49 AM, Andreas Nettsträter wrote:
>
>     Dear all,
>
>     Finally, I managed to collect all input. Therefore, I’m happy to
>     address your concerns regarding our license.
>
>     I hope the clarifications help to understand our approach a bit
>     more. If there is need for more details, please reply and I’ll try
>     to answer faster than in the first round.
>
>     Regards
>
>     Andreas
>
>     _1. Eric’s concern with regard to the limitation of liability in
>     the license_
>
>     With regard to the comment on the limitation of liability, Eric
>     fears that contributors will be inappropriately liable under the
>     license. In general, we do not see any reasonable claims against
>     contributors since contributors do not enter contracts with users
>     but only allow to use the IP they created with their contribution
>     (they grant rights of use). At least we are not aware of any
>     claims against contributors to open source software. Furthermore,
>     the limitation of liability clause itself does not create any
>     liability but limits the liability in case it arises at all.
>     Therefore, it should be beneficial to all contributors. Since the
>     license is drafted to comply at least with German laws, a further
>     limitation of liability would not be possible once liability arose
>     at all. E.g., the comprehensive limitation of liability in the
>     Apache 2.0 license would be void, if it had to be interpreted
>     under German (or other European laws). Since liability for
>     personal injury cannot be excluded under German laws on general
>     terms and conditions, adjustments to the close would not benefit
>     contributors.
>
>     _2. Comments No. 1 and No. 2 by McCoy Smith_
>
>     McCoy’s assumption is 100% correct, there is no comprehensive
>     European contract law any more than there is in the USA. The
>     adjustments made in the license compared to the “original” Apache
>     2.0 license are made in accordance with German law. We decided to
>     use a choice of law clause in order to be sure that the license is
>     enforceable. As mentioned above, in the case German laws applied
>     wrt the Apache 2.0 license, some of the provisions would be void
>     and therefore not enforceable. However, it is our understanding
>     that there have been few court cases wrt to open source licenses
>     and even fewer decisions that relied on the enforceability of
>     clauses that could/would be void under appliable laws.
>
>     _3. Comment No. 3 by McCoy Smith: _
>
>     According to German law, one can only deviate from or limit
>     liability to a very limited extent by means of general terms and
>     conditions. Assuming that open source software is handed over as a
>     gift, we fortunately no longer have comprehensive liability for
>     simple negligence, but "only" the liability specified in the
>     licence (under German laws). However, it is not possible to
>     further deviate from this liability in favour of the potentially
>     liable party.
>
>     _4. Comment No. 4 by McCoy Smith: _
>
>     We see three issues here.
>
>     a. There seems to be a misunderstanding wrt the last paragraph of
>     the patent clause. Of course, any patentee can unilaterally
>     "revoke" his/her patent with the consequence that it ceases to
>     exist and therefore a right to use it is no longer required.
>     However, this is not a revocation of a patent once granted in the
>     sense that the recipient would then no longer be allowed to use
>     it. What we have seen in the past is that companies and public
>     institutions have released their patents in order to make them
>     available to the public, therefore, we wanted to include this
>     statement in the license.
>
>     b. The right to use the patent should be limited to the part of
>     the works that existed at the time of filing a contribution.
>     Otherwise, further contributions from third parties could lead to
>     a situation where a contributor would have to grant rights to use
>     patents which have not been necessary at the time of the
>     contribution. We think this is in line with the patent clause in
>     the Apache 2.0 license.
>
>     c. The last issue might be the most important for you. We have
>     been asked by some partners of the current project for which the
>     license has been drafted to include the possibility that they
>     submit a list of patents they are not willing to contribute to the
>     work. This is reflected in the license text. However, it is part
>     of our workflow for the inclusion of contributions into the
>     project that no contributions would be accepted where a patent
>     that would be part of such list of patents excluded from the
>     contribution could be applicable.
>
>     *Von:* License-review
>     <license-review-bounces at lists.opensource.org>
>     <mailto:license-review-bounces at lists.opensource.org> *Im Auftrag
>     von *Andreas Nettsträter
>     *Gesendet:* Montag, 16. Mai 2022 18:36
>     *An:* License submissions for OSI review
>     <license-review at lists.opensource.org>
>     <mailto:license-review at lists.opensource.org>
>     *Betreff:* Re: [License-review] For Approval: Open Logistics License
>
>     Dear all,
>
>     I'm still waiting for the final input from all partners.
>     Corona/Covid are still causing longer delays here.
>
>     Sorry for that. I hope that I can provide feedback until next week
>     the latest.
>
>     Regards
>
>     Andreas
>
>     ------------------------------------------------------------------------
>
>     *From:*License-review
>     <license-review-bounces at lists.opensource.org> on behalf of Andreas
>     Nettsträter <andreas.nettstraeter at openlogisticsfoundation.org>
>     *Sent:* Sunday, April 17, 2022 5:15:36 PM
>     *To:* License submissions for OSI review
>     <license-review at lists.opensource.org>
>     *Subject:* Re: [License-review] For Approval: Open Logistics License
>
>     Dear all,
>
>     Thanks for the useful feedback.
>
>     I'll talk to the lawyers and give you more information on the
>     decisions and reasons for the changes. Also regarding the
>     connection between German and European law.
>
>     Because of Easter holidays this could take some days.
>
>     Regards
>
>     Andreas
>
>     ------------------------------------------------------------------------
>
>     *From:*License-review
>     <license-review-bounces at lists.opensource.org> on behalf of Eric
>     Schultz <eric at wwahammy.com>
>     *Sent:* Saturday, April 16, 2022 9:12:50 PM
>     *To:* License submissions for OSI review
>     <license-review at lists.opensource.org>
>     *Subject:* Re: [License-review] For Approval: Open Logistics License
>
>     Andreas,
>
>     Thanks for submitting this!
>
>     I'm no lawyer but I'm a little uncomfortable with the wording for
>     the disclaimer of liability around which words the "and" and "or"
>     apply to.
>
>     For example does it mean:
>
>     1. (intent and gross negligence) OR (causing personal injury), or
>
>     2. (intent) and (gross negligence or causing personal injury)
>
>     While we should definitely avoid any harm to our users, 1 seems
>     like it's creating a pretty high risk to developers. After all, in
>     some cases it's nearly impossible to avoid all possible injuries
>     to all persons everywhere. Depending on the design of the
>     software, it may be dangerous to some subset of users while
>     perfectly safe to other users.
>
>     One thought I have is that, in cases of potential liability, I am
>     under the impression that certain punishments apply if someone
>     intends to cause the injury or exhibited gross negligence. So does
>     it make sense to have an "and" there?
>
>     My thinking is it would make more sense to rewrite the clause to
>     mean:  (intent OR gross negligence) AND (causing personal injury).
>     After all, if you exhibit intent and gross negligence but don't
>     cause any injury, as I understand it, there would be no civil
>     liability because there would be no injured party. Then again, I'm
>     not a lawyer and I'm based in the US so I'm applying my very
>     limited knowledge to that.
>
>     Eric
>
>     On Thu, Apr 14, 2022 at 6:37 AM Andreas Nettsträter
>     <andreas.nettstraeter at openlogisticsfoundation.org> wrote:
>
>         Dear License Review Team,
>
>         I would like to propose the Open Logistics License for an
>         approval.
>
>         You can find the plain text copy of the license in the
>         attachment and the requested additional information in the
>         following.
>
>         Rationale:
>         This new license is intended to represent the rights and
>         obligations of an established license, such as Apache v2,
>         while respecting the differences between US and European law.
>         The changes were mainly done in the paragraphs regarding
>         warranty and liability.
>
>         Distinguish:
>         The Open Logistics License is based on Apache v2, but has been
>         modified to comply more with European law.
>
>         Legal review:
>         The entire process of discussing and drafting the license was
>         accompanied by BHO Legal, a German law firm specialized in IT
>         law. Adjustments were made to specifically adapt the rules on
>         the patent license, warranty, and liability to European law.
>         The adjustments are intended to strengthen the acceptance of
>         the license by European companies and minimize (perhaps only
>         perceived) risks. The license was subsequently reviewed and
>         approved by several in-house lawyers of larger European
>         companies. Further details and justifications for the
>         individual changes can be provided on request.
>
>         Proliferation category:
>         The decision on one specific category is quite hard. The
>         license is compatible with Apache2, but was adapted to some
>         specific European rules. The license will be used by a larger
>         group of companies in the frame of open source development for
>         logistics and supply chain management, but is, of course, not
>         limited to this purpose. Therefore, the license can be seen as
>         a special purpose license.
>
>         I'm happy to deliver more information, if needed.
>
>         Regards from Germany
>         Andreas
>
>         --
>         Andreas Nettsträter
>         Open Logistics Foundation
>
>         _______________________________________________
>         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
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>         email address.
>
>         License-review mailing list
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>
>
>
>     -- 
>
>     Eric Schultz, Developer and FOSS Advocate
>
>     wwahammy.com
>     <https://deu01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwwahammy.com%2F&data=05%7C01%7Candreas.nettstraeter%40openlogisticsfoundation.org%7Cb2351ae257394d74e19208da5e0d216d%7Cb346d634acfb42c7bd44f1557ee89b1b%7C1%7C0%7C637925707753832092%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C2000%7C%7C%7C&sdata=hB00T6wvukUO%2F8ZilvtjA9ATA4yAyDesvvFGvkTX6pM%3D&reserved=0>
>
>     eric at wwahammy.com
>
>     @wwahammy
>
>     Pronouns: He/his/him
>
>
>
>     _______________________________________________
>
>     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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