Fails OSD #1. [Re: OSD compliant shareware]

Wed Nov 14 00:08:33 UTC 2001

Hi Forrest,

I think it's possible to create any number of licenses that violate the
spirit of the OSD while following the letter. However, I don't think this
example is one of them. Your #4 doesn't pass OSD #1, which requires that
sale be permitted.

It's been pointed out that:

1. The OSD is not written in statutory language.
2. That it says what you _can't_ do rather than what you can and thus makes
   it easy to find loopholes, because there is an unbounded set of activities
   that it does not restrict.
3. That it was created before we had any experience interpreting it and before
   there was a DMCA at all.

It still makes a _wonderful_ manifesto, its success speaks for that. But to
apply it blindly would be foolhardy. I imagine that there is an unbounded set
of licenses that appear to be OSD-compliant yet are so pernicious in their terms
as to be outside of the spirit of the OSD.

I haven't read the decision in MAI vs Peak, but DMCA itself is up for
review and if the case really is definitive, it's questionable that it will
remain so.

	Thanks

	Bruce

On Tue, Nov 13, 2001 at 05:00:32PM -0500, Forrest J. Cavalier III wrote:
> Bruce,
> 
> In September 2001 on the license-discuss at opensource.org mailing
> list, there was a posting referencing the appeal court ruling
> of MAI vs Peak.  It is the understanding that parts of the
> ruling were overturned by the DMCA, (specifically adding
> an allowed use at 17 USC 117 (c))  But one of the opinions
> in the ruling is troublesome to the OSD.
> 
> I understand the OSD is written with the assumption that
> the use of software is protected by 17 USC 117, (one copy is at
> http://www4.law.cornell.edu/uscode/17/117.html), which
> allows the "owner of a copy" to make copies (into RAM
> for example) for the purposes of running the program.
> 
> Buried in the MAI vs Peak decision, (one copy is at
> http://www.law.cornell.edu/copyright/cases/991_F2d_511.htm)
> is the statement that a licensee is not an owner, and 17 USC
> 117 protection would not apply.  (See the footnote 5.)  
>    "5. Since MAI licensed its software, the Peak customers do not qualify
>     as "owners" of the software and are not eligible for protection under
>      117."
> 
> This means the copying of the program into RAM is governed by the terms
> of the license.
> 
> I have written what I think is an OSD compliant shareware license
> (below), and some on the license-discuss list were unable
> to use the OSD to reject the license.  (Some even said
> that maybe the OSD was supposed to permit this kind of
> shareware.)
> 
> I am writing in the hopes that you could share 
>    - insights into the creation of the OSD, (why it did not
>      explicitly protect the right to use,)
> 
>    - and how (if?) the OSD should best be amended to
>     address the issue of use, assuming 17 USC 117 is not
>     applicable permission.
> 
> Thank you.  
> 
> Forrest J. Cavalier III
> Mib Software
> ----------------------------------------------------
> 
> Open Source Shareware
> 
> The trick is to distribute the shareware as source only.
> In that case, in order to run it, it must be compiled, and
> (unless you are compiling and linking in memory), that
> creates a derivative work, a right reserved to the copyright
> owner.   Then use the GPL method of forcing a license agreement
> without signing one.
> 
> (Clause 2 and 4 are the interesting parts. Parts are heavily
> borrowed from other licenses.)
> 
> The one improvement needed is that someone could make a binary,
> pay the $20, and then users of that copy would not have to
> pay. (They accept the license only when they made a copy or
> derivative work.)  There would have to be a copyleft clauses
> too, so that the license on the binary would be preserved.
> (I left that out for easier reading.)
> 
> To head off OSD #7 objections, under this license "running" is not a
> right "attached to the program."  If you own the copy, that right is
> supplied by 17 USC 117.  If you accept the license, that right is
> supplied by paying the $20 fee.
> 
> ---------------------------------------------------------
> Copyright (c) <year> <copyright holders>
>   1. You may copy and distribute verbatim copies of the Program's
>      source code as you receive it, in any medium, provided that you
>      conspicuously and appropriately publish on each copy an
>      appropriate copyright notice and disclaimer of warranty; keep
>      intact all the notices that refer to this License and to the
>      absence of any warranty, and agree and comply with the terms of
>      this license.
> 
>      You may charge a fee for the physical act of transferring a copy,
>      and you may at your option offer warranty protection in exchange
>      for a fee.
> 
>   2. You may compile this into an executable form, or modify your
>      copy or copies of the Program or any portion of it, thus forming
>      a work based on the Program, and copy and distribute such
>      modifications or work under the terms of Section 1 above.
> 
>   3. You may not copy, modify, sublicense, or distribute the Program
>      except as expressly provided under this License.  Any attempt
>      otherwise to copy, modify, sublicense or distribute the Program
>      is void, and will automatically terminate your rights under this
>      License. However, parties who have received copies, or rights,
>      from you under this License will not have their licenses
>      terminated so long as such parties remain in full compliance.
> 
>   4. This software is licensed, not sold.  If you wish to run the
>      software after agreeing to this license, you must pay $20
>      to <copyright holder.>
> 
>   5. You are not required to accept this License, since you have not
>      signed it.  However, nothing else grants you permission to modify
>      or distribute the Program or its derivative works.  These actions
>      are prohibited by law if you do not accept this License. 
>      Therefore, by modifying or distributing the Program (or any work
>      based on the Program), you indicate your acceptance of this
>      License to do so, and all its terms and conditions for using,
>      copying, distributing or modifying the Program or works based on
>      it.
> 
> 
>     THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND,
>     EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF
>     MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
>     NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT
>     HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY,
>     WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM,
>     OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER
>     DEALINGS IN THE SOFTWARE.
> 
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3