License Proliferation and OSL 3.0

[Lawrence Rosen]

TO: license-discuss at opensource.org

Several people have suggested to me over the past couple of years that it
would be helpful if I allowed them to create their own modifications of the
Open Software License (OSL) for special purposes. I've always resisted
because I feared more license proliferation. But we've had license
proliferation anyway, often by people creating their own licenses when
merely amending a few words in an already-approved license would better suit
their business needs and improve public understanding. 

I'm thinking of adding a new Section 16 to OSL 3.0 to encourage reuse of its
license provisions in other licenses and to promote consistency and clarity
of legal expression. Do you think this will be helpful or hurtful? Can you
identify problems or suggest clarifications?

   16) Modification of This License. This License is Copyright C 2005
Lawrence Rosen.
   Permission is granted to copy and distribute this License without
modification.
   Nothing in this License permits You to modify this License as applied to
the
   Original Work or to Derivative Works. However, You may modify the text of
this 
   License and copy and distribute your modified version (the "Modified
License")
   and apply it to other original works of authorship subject to the
following 
   conditions: 
   (i) You must replace the notice specified in the first paragraph above
with the 
   notice "Licensed under the Open Software License version 3.0 as Amended
by 
   Licensor" or with a notice of your own that is not confusingly similar to
the 
   notice in this License;
   (ii) You may not indicate in any way that your Modified License is the
"Open
   Software License" or "OSL" and you may not use those names in the name of
your
   Modified License; and
   (iii) You may not claim that your original works are open source software
unless
   your Modified License has been approved by Open Source Initiative (OSI)
and You 
   comply with its license review and certification process.

What I'd rather have happen, of course, is that important modifications be
made now in the DRAFT rather than be made later in proliferating licenses.
So if you have suggestions for OSL 3.0, please make them now. I welcome
friendly amendments at this stage.

The latest draft of OSL 3.0 (which still changes from time to time in
response to valuable suggestions since it is still a draft) is at
www.rosenlaw.com/DRAFT-OSL3.0.pdf. The redlined version showing differences
from OSL 2.1 is at www.rosenlaw.com/DRAFT-OSL3.0-redlined.pdf.

The following is a summary of the significant changes made to date in this
DRAFT OSL 3.0:

Initial paragraph:
- Changes the license version to 3.0

Section 1: Grant of Copyright License
- Changes duration of copyright license to acknowledge the public domain.
- Explicitly allows anyone to include copies in collective works.
- Adds "communicate" to satisfy European laws.
- Identifies the specific things a licensee can do to create derivative
works
  ("translate, adapt, alter, transform, modify, or arrange"). 
  NOTE: "Linking" does not create a derivative work in OSL 3.0; 
        only the listed activities do. 
        OSL 3.0 is an alternative to the LGPL.
  NOTE: OSL 3.0 is not file-based; it applies to the entire Original Work.
        To use OSL 3.0 as an alternative to the MPL or CDDL, license *each
file* 
        as an Original Work under OSL 3.0, and separately license under any
license
        the collective work of all files together in one package.

Section 2: Grant of Patent License
- Changes duration of patent license to acknowledge the public domain.
- Adds "have made, and import" to activities authorized under patent
license.

Section 3: Grant of Source Code License
- Removes requirement to point to location of source code.

Section 4: Exclusions from License
- Adds "have made, or import" to activities listed under patent rights.

Section 5: External deployment
- Also treats external deployment of the Original Work as a distribution.
- Adds "communication" to satisfy European laws.

Section 6: Attribution Rights
- (I removed the stronger provision about attribution notices from previous
drafts.) 

Section 8: Limitation of Liability
- Replaces language to simplify and conform to European laws.

Section 9: Acceptance and Termination
- Strengthens the assent provision to conform to European laws.
- Expressly provides for "fair use" and "fair dealing."
- Expressly provides for dual licensing.
- Removes references to U.S. law and generalizes instead to copyright law.

Section 11: Jurisdiction, Venue and Governing Law
- Removes references to U.S. law and generalizes to copyright and patent
law.

Section 16: Modification of This License
- New section to help (or hurt?) license proliferation.

/Larry

P.S. Many thanks to those of you who have already made valuable suggestions
to the current DRAFT OSL 3.0, particularly our friends in Europe who
recommended important changes to conform to their laws. 

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  *  fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and 
   Intellectual Property Law" (Prentice Hall 2004) 
   [Available also at www.rosenlaw.com/oslbook.htm]