[License-review] Submission of license "MAPOD4D" for approval

[Carlo Piana]

Dear submitter,

I think this license has problems right from the start.

> This license defines the rights granted by the author or by the licensee in reference to the work of authorship (hereinafter also referred to as "the application") to which it is associated, 
> in all its versions and including every element that constitutes it and which is necessary to its functionality. The Digests listed in the attached "note on the authorship of the work and 
copyright" identify the compressed file in zip format containing the work.

I can be at ease with "every element that constitutes it", but I am lost with "which is necessary to its functionality". Can't an element be a constituent one, yet not be necessary to its functionality -- singular? E.g., after removing it the software is still working, maybe with one less functionality -- say, internationalization of the interface, or connection to one particular database, or text-to-speech UX? Would it be included or not included in the license?

And again, I am under the impression are you trying to overcome the "what's a derivative" here, by redefining the copyright concept of "derivative".

Moreover, you seem to dictate the form of distribution ("zip format containing the work"), which is directly against #10, that is being technology neutral.

I can spot several other problematic points:

> "do not charge any price or cost, you are not allowed to ask for any kind of payment for the distribution or communication of the modified work in non-source form"

As other have already commented, I think this is against #6. I think this shows a misunderstanding on "free". I cannot condition my permission to use a software artifact to the payment of a sum of money or other requirement, but since nothing imposes me to distribute or provide a build (as opposed to provide the corresponding source code of a build), I can very much ask to be paid for this action, provided I don't otherwise restrict the rights in any proprietary way.

I am very confused by the litigation provision. On the one hand:

> and such litigation shall be governed by laws of that jurisdiction

is largely superfluous, as the law of proceedings is not in the hands of the parties (lex fori) if not for very very limited aspects. I believe this has not an impact on the actual law governing the license, which is then left with the general international private law.

But on the other hand, and this is the most puzzling bit:

> If the author of the original work is involved, the litigation may [be] brought only in the court of the jurisdiction where he has its domicile.


Disregarding the fixable translation artifacts, so you choose the defendant's jurisdiction, unless it's the original author. So the original author can sue me in their home jurisdiction, but I, as the author of a significant component and co-author myself of a derivative I am forced to go and litigate in a different jurisdiction? I think this is discriminatory in the sense that favors one copyright holder against the other copyright holders, and this is against #5. 

Another problematic bit is with §13 "Other rights"

> Any right not specifically expressed in this license is not granted to the licensee.

The only rights the license mentions are under Copyright (including moral rights, which are incidentally not subject to license). There is no mention of other controlled rights necessary to use of the software, such as database rights or patents. Suppose I am a patent holder of a work of mine and I license said work under this license. Can I later go after my licensees under the patent regime if they use the software to compete against me? Mind, this is not an hypothetical scenario.

And now let's come to the accompanying data for rationale, non proliferation and legal review.

I am totally unconvinced there is a special case for software promoting cultural heritage. Many in this discussion forum work exactly in this space and I believe this is the first time we hear about it. So we would need some more convincing evidence in such respect and more articulate argument too. The only quite egregious bit I read is 

> preventing the software product itself from being placed on the market as a commercial 
product.

If you mean "proprietary product", this is commonly understood as being the scope of copyleft (strong, weak, whatever) and it is totally a-specific to cultural heritage software, admitting such area of software had special needs at all. Incidentally, copyleft has no bearing on commercial exploitation, as long as the copyleft conditions are complied with.

If you mean "people are making money out of it while respecting the four freedoms", again, this would reflect a poor understanding of what "free" means in the Free Software regime. Actually, preventing people from making money out of producing and distributing derivatives can be detrimental to the success of FOSS. There are several business models that are totally suitable to Software Freedom, yet requiring subscription or paid-for services. As long as they do not detract from the rights to use, learn from, modify, make copies of original or modified versions and distribute them, this is totally fine and any restriction of making money per se is discriminatory.

Finally, I am not sure I understand your reference to Italian law in the "Legal Review" section of your submission. The scope of this question/section is to make sure -- since each submission requires effort from many people to scan, understand and comment the submitted license -- that there has been significant prior good faith effort to have the license vetted by a lawyer familiar with the underlying concepts of FOSS licensing. There is no requirement to have the license approved by any other entity but OSI.

I share the view of the learned commentators, that this license does not make the cut and I submit that it must be rejected for the above reasons.

With best regards,

Carlo Piana








----- Messaggio originale -----
> Da: "Dr.ssa Serenella Saccon" <s.saccon at progettosl.eu>
> A: "license-review at lists.opensource.org" <license-review at lists.opensource.org>
> Inviato: Venerdì, 13 gennaio 2023 10:47:31
> Oggetto: [License-review] Submission of license "MAPOD4D" for approval

> Dear Sirs,
> I am writing to submit our license MAPOD4D for approval.
> I am sending as attachments the license and the supporting data.
> 
> I look forward to your communications,
> best regards.
> 
> 
> Dr.ssa Serenella Saccon
> 
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