Right to Use

John Cowan jcowan at reutershealth.com
Tue Oct 29 22:51:30 UTC 2002

Lawrence E. Rosen scripsit:

> But so what?  How does that bite?  Merely being a distributor makes no
> difference.  You only incur the obligation to publish your source code
> when you have created a Derivative Work.

*My* source code, yes.  But that's not the problem.  Reading the following
excerpts together:

	"External Deployment" means the _use_ or distribution of the
	Original Work [...] to provide services or otherwise deliver
	content [Sec. 5, emphasis added];

	[A]ny External Deployment by You shall be deemed a distribution
	and _shall be licensed to all_ [Sec. 5, emphasis added];

	Licensor hereby agrees to provide a machine-readable copy of
	the Source Code of the Original Work along with each copy of
	the Original Work that Licensor distributes [Section 3].

gives rise to to the following sorites:

	Any use of the Original Work (modulo exceptions) is an E.D.;

	Any E.D. is a distribution and requires one to be a licensor;

	Being a licensor obligates one to provide source code.

> Mere *use* of the software, even to distribute services externally, does
> not make you the creator of a Derivative Work.

No, indeed.  But if the use amounts to an E.D., it does make you a
licensor.  I admit this is pilpul, but it is an available reading
of the text.

I think the simplest way to block this reading is to insert 
"of a Derivative Work" after "External Deployment by You" in the last
sentence of Section 5.

> [1c] does not require that a
> distributor of copies of the Original Work publish the source code of
> the Original Work.

Not directly, no.

> Once again you are misreading the OSL.  

You asked more generally (without, I think, reference to the OSL in
particular): Is it not all one whether Amazon physically distributes
a modified program, or keeps the program to itself and distribute the
fruits via the Internet?  I said, no, it isn't all one.  The former
activity may be banned by copyright or contract; the latter is not just
a special case of it, is clearly not banned by copyright, and should
not be banned by contract.

> Ahhhh.  I didn't realize you are a distributor of a modified Elm open
> source program.  I'll sue you myself if someone will pay the attorney's
> fees.  

Fortunately, Elm isn't licensed under the OSL, so I am not distributing
it, even though I am (by OSL definitions) Externally Deploying it by
using it to provide content to (inter alia) you.

John Cowan  jcowan at reutershealth.com  www.ccil.org/~cowan  www.reutershealth.com
"The competent programmer is fully aware of the strictly limited size of his own
skull; therefore he approaches the programming task in full humility, and among
other things he avoids clever tricks like the plague."  --Edsger Dijkstra
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