External deployment / Otherwise Make Available (was Re: OVPL summary)

[Alex Bligh]

Larry,

> Alex Bligh wrote:
>> In response to an off-list, I note the above (and Larry's
>> wording) incorporates the word "used". That should be
>> interpreted in a copyright law sense.
>
> If I said it that way I misspoke. The word "use" in OSL 3.0 is in the
> patent law sense.

I miswrote.

> If there is confusion, perhaps it is in the way that OSL 3.0 defines
> external deployment.
...
> However, I'd be more interested to learn whether people here think
> that, in general, the use of the word "use" in the definition of External
> Deployment in OSL 3.0 is too vague to be useful. :-)

Sadly, though I think you know what the OSL means by "use" (better than me,
it seems!), it's pretty obvious that not everyone else does. I think
therefore that there is a problem (sorry) both with the OSL 3.0 definition
and the OVPL proposed mod. I am also not sure it does what you think it
does.

For instance, you write:

> The word "use" in a patent law sense, it seems to me, is very much the way
> the word applies in a computer science sense. That is, one uses software
> when one is in control of its functions or operations, not when the
> software is merely incidental to the transmission, across a network, of
> data belonging to third parties who are entirely unaware of its operation
> and didn't elect to "use" it in any way.

and you give the example of a mail server accepting mail by SMTP as
something that isn't external deployment. I shall presume that a mail
server that is a "smarthost" (i.e. the ISP server that sends mail) is
not meant to be covered either.

Let me give you something which you would think quite definitely ASP use:
that's webmail software - i.e. someone writes an OSL licensed webmail
application, and illustrate why your criteria do not differentiate it from
the case of an SMTP server run by an ISP for outbound mail (or for that
matter for inbound mail - but surely there can't be a difference).

Now, in both cases, the user is interacting with another piece of software
(either his mail client, or his web browser); in neither instance does he
interact directly with the software concerned. In both instances the user
does not interact directly with the server software so licensed (indeed in
one instance the server speaks an obscure language called HTML, in another
an obscure language called SMTP, neither of which the user understands).
The user has no idea he is using the licensed software - he thinks he's
either using his mail client to send email, or his web client to send mail
(through some branded interface which is unlikely to refer to the
software). In both instances he is just as much in control of the licensed
software's operation (he can make it do some things, like send his mail,
but not others). In both instances (outbound mail) he's sending his data.
In both instances (receiving mail) he receives other's mail (but a
corporate licensee may also receive his own). In both instances, he took
the same non-choice to use software - either he signed up to an ISP that
happened to use that variety of SMTP smarthost, or he signed up to MSN or
whatever and they happened to use that variety of webmail. The transmission
of the message from client to server is in both cases not "merely
incidental" to the transaction - it's the whole point of the transaction.

At least according to the criteria you gave above, I think these two cases
are indistinguishable. They simply use a different protocol. There must
be some other distinguishing factor.

I *think* you've missed the fact that users do not "use" ASP software -
they "use" web-browsers (using the above kind of use). So the "externally
deploy" definition (if "use" is read the way you've set out above) would
cover (say) putting a whole pile of kiosks up, with an OSL licensed modified
web-browser. I don't see why the servers they connect to (whether HTTP
or SMTP) should be covered.

I am sorry to be a pain and point this out at this late stage.

Alex