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<div class="moz-cite-prefix">Wendy, all,<br>
<br>
A few belated comments, as the early decision on the previous
version would probably estop objections to approval on
pre-existing terms. Because of the public and general teaching
that our discussion creates to the benefit of all drafters, I will
anyhow make two them for the records.<br>
<br>
# Lack of a full liability disclaimer (common to many licenses)<br>
<br>
One thing that has always puzzled me is that the liability
disclaimer is **only to the benefit of the copyright holder(s)**.
That means that if I merely host the software to the benefit of
others, or make insubstantial (copyright-wise) changes, or just
plug a component in my non-derivative project, thus **not being
copyright holder, but liable** for the very use of the permissions
of the license, I will not be protected by the liability
disclaimer.<br>
<br>
I understand that many of the licensing conditions only belong to
the copyright holders, but with specific regard to liability
(hence not a direct copyright issue), why these licenses let
non-copyright-holders out in the cold, unprotected? Why not just
using the elegant wording of the GPL v3 as a reference: "<span
style="color: rgb(0, 0, 0); font-family: FreeSans; font-size:
16px; font-style: normal; font-variant-ligatures: normal;
font-variant-caps: normal; font-weight: normal; letter-spacing:
normal; orphans: 2; text-align: left; text-indent: 0px;
text-transform: none; white-space: normal; widows: 2;
word-spacing: 0px; -webkit-text-stroke-width: 0px;
background-color: rgb(255, 255, 255); text-decoration-style:
initial; text-decoration-color: initial; display: inline
!important; float: none;"><span style="color: rgb(0, 0, 0);
font-family: FreeSans; font-size: 16px; font-style: normal;
font-variant-ligatures: normal; font-variant-caps: normal;
font-weight: normal; letter-spacing: normal; orphans: 2;
text-align: left; text-indent: 0px; text-transform: none;
white-space: normal; widows: 2; word-spacing: 0px;
-webkit-text-stroke-width: 0px; background-color: rgb(255,
255, 255); text-decoration-style: initial;
text-decoration-color: initial; display: inline !important;
float: none;">ANY COPYRIGHT HOLDER, </span>OR ANY OTHER PARTY
WHO MODIFIES AND/OR CONVEYS THE PROGRAM AS PERMITTED ABOVE"? <br>
<br>
This discussion has arguably no impact on OSD compliance (or has
it?), the non-copyright-holder may add their own distribution
terms, I reckon. But those distribution terms **would not be
based on copyright law**; rather they will be on contractual or
quasi-contractual grounds, therefore in a much less solid
terrain, if not in the sand. I would like to see this point
addressed by all submitters, if their license want to create
commons and an ecosystem. <br>
</span><br>
# Implied possible ambiguity as to patents<br>
<br>
On a different but related topic.<br>
<br>
This license reads an evident copyright-only license: wide use of
copyright only concepts and wording; lack of any even vague
reference to patents or other rights impinging (h/t Andrew Katz)
on the software are a red herring. Is there any *arrière pensée*
that the patents (if any) that may read on an unmodified version
of the software are intentionally not licensed by the copyright
holders and therefore if someone wanted to use, distribute, copy,
modify etc. the software, she should seek a separate license?<br>
<br>
I am aware of the IPR policy of W3C in this domain, and that this
would be an infrequent (but not impossible!) case in the context;
I am also aware that the suggested proliferation category is "non
reusable". Yet, leaving such possibility open is something that in
a modern FOSS license creates potential problems and eventually
non-openness. Besides, despite the clear ‒ and maybe elsewhere
clearly spelled out ‒ intentions of the drafters, a license might
be interpreted beyond the intentions of the drafter and sometimes
also not against her interests; in many laws there is a *contra
proferentem* rule, but that may be recessive or non applicable,
and anyway being based on contractual law, *the rule itself* would
largely vary, never mind *its concrete application*. So if leaving
patents out of the license was not the intention of the drafters,
this could very well be the legal consequence of applying the
proposed license.<br>
<br>
In a nutshell: what is the attitude of the license WRT the
(hypothetical) patents held by a copyright holder reading on the
licensed work?<br>
<br>
And why ‒ if the ambiguity was spotted ‒ was it not more clearly
avoided one way or the other? <br>
<br>
At least up to the limited approach to the problem that the APL
takes (contributors' patent license), patents should be expressly
taken care by a FOSS license. See the CC0 discussion, and, in
similar terms, see the discussion we had WRT the MXM license. The
fact that BSD and MIT, and all academic licenses are historical
cornerstones of FOSS licensing is not a reason to perpetuate an
use which was state-of-the art back then, but it is by an large
not any more.<br>
<br>
Cheers<br>
<br>
Carlo<br>
<br>
<br>
On 09/08/2017 19:35, Wendy Seltzer wrote:<br>
</div>
<blockquote type="cite"
cite="mid:821e3959-9143-f033-3d82-b8ff06bd129f@w3.org">
<pre wrap="">Hi,
This is a submission of the W3C Software and Document License (2015) for
Approval, per the process described at <a class="moz-txt-link-freetext" href="https://opensource.org/approval">https://opensource.org/approval</a> .
I am counsel to the World Wide Web Consortium (W3C).
The license can be found at:
<a class="moz-txt-link-freetext" href="https://www.w3.org/Consortium/Legal/2015/copyright-software-and-document">https://www.w3.org/Consortium/Legal/2015/copyright-software-and-document</a>
A text copy of the license is attached.
Rationale: This 2015 revision updates the earlier version of a W3C
Software License currently listed by OSI:
<a class="moz-txt-link-freetext" href="https://opensource.org/licenses/W3C">https://opensource.org/licenses/W3C</a>
The 2015 version makes clear that the license is applicable to both
software and text, by changing the name and substituting "work" for
instances of "software and its documentation." It moves "notice of
changes or modifications to the files" to the copyright notice, to make
clear that the license is compatible with other liberal licenses.
Distinguish: This license is substantively equivalent to the previous
version of the W3C Software License. We should replace the previous
version with this 2015 version.
Legal review: W3C counsel discussed with the W3C Patents and Standards
Interest Group; Advisory Committee; and membership. We believe it to be
substantively equivalent to the earlier license.
Proliferation category: Replacing an existing Non-reusable license.
W3C updated the license to reduce proliferation by making it clearly
possible to publish both software and specifications under the same
free/open license. The license is used by W3C groups and their
contributors for software such as test suites and reference
implementations, as well as for some documentation and specifications.
I'm making this request now because a W3C participant brought to my
attention that projects would find it easier to use and distribute
W3C-licensed software if our current license were OSI-listed.
Please let me know if you have any questions.
Thanks,
--Wendy
</pre>
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