[License-discuss] Proposal: Apache Third Party License Policy

Thu May 21 16:52:06 UTC 2015

To be fair, the responses that I have seen involving Apache involved
independent analyses that came to the same conclusion that I did, and
did not reference my comment.  Furthermore my email there bounced
(which is why I just took them off the CC list), so they probably did
not see it.

Now on to the OSD.  The OSD was unfortunately not written by a lawyer,
and can be parsed ambiguously in many ways.  So you often have to go
back to intent to figure out which way it should be parsed.

My understanding is that the original version of item #1 is that third
parties are not restricted from giving away or selling the software
without paying royalties or any fee.  The awkward wording around
aggregation was added so that
http://opensource.org/licenses/artistic-license-1.0 could be declared
open source despite section 5 which only allowed it to be sold as part
of an aggregation.  Furthermore there is no question that Bruce Perens
was aware of section 2 of http://www.gnu.org/licenses/gpl-2.0.html and
intended the GPL v2 to be open source.

Given that, here is how I read, "The license shall not restrict any
party from selling or giving away the software as a component of an
aggregate software distribution containing programs from several
different sources. The license shall not require a royalty or other
fee for such sale."

I read it as saying that when you distribute, you are free to charge
or not as you wish, and you owe no royalty or fee regardless of what
you choose.  However there is a distinction between "AN aggregate" and
"ANY aggregate".  Some aggregates are not allowed to be distributed.
Another similar hair to split is that the manner in which it is sold
can matter.  For example it is OK to sell it in a box, but is not
necessarily OK to put the name of the author of the software on said
box.  (A number of open source licenses have advertising
restrictions.)

That said, I completely agree that it is possible to parse that
section in a way that the *GPL v* family of licenses will fail.  But
this is not the only way in with the OSD fails to be a legal document.

On Thu, May 21, 2015 at 8:51 AM, Lawrence Rosen <lrosen at rosenlaw.com> wrote:
> Ben Tilly quoted OSD #1 [Free Redistribution]
> "The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale."
>
> He then added this: "But not all aggregations are created equal." And now some at Apache are treating Ben Tilly's added statement as important for analysis of aggregations containing FOSS software.
>
> How do "unequal aggregations" affect OSD #1?
>
> I'm expressly NOT speaking of derivative works.! I used the word "aggregation" on purpose.
>
> /Larry
>
>
> -----Original Message-----
> From: Ben Tilly [mailto:btilly at gmail.com]
> Sent: Wednesday, May 20, 2015 2:07 PM
> To: Lawrence Rosen; License Discuss
> Cc: Legal Discuss; European Legal Network
> Subject: Re: [License-discuss] Proposal: Apache Third Party License Policy
>
> The first item in the Open Source Definition seems to address this.
>
> 1. Free Redistribution
>
> The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.
>
> Therefore you would think that all open source software should be OK to distribute in an aggregation.
>
> But not all aggregations are created equal.  Licenses in the GPL family distinguish between things that have simply been aggregated together, versus things that are meant to be used as part of a combined work.  Therefore if you, for instance, shipped an Apache 1.1 licensed program from one source together with a GPLed library from another source that the program won't run without, then you're in violation of the GPL.
>
> So if you're aggregating open source programs that do different things and do not rely on each other, then open source software licenses should be fine.  But there are some potential gotchas.
>
> On Wed, May 20, 2015 at 1:40 PM, Lawrence Rosen <lrosen at rosenlaw.com> wrote:
>> Apache Legal JIRA-218 asked:
>>>> My question is about whether "Eclipse Public License -v 1.0"
>>>> is compatible with our Apache License 2.0.
>>>> I couldn't find an answer on https://www.apache.org/legal/resolved.html.
>>
>> Larry Rosen suggested:
>>> The obvious answer we could state in a short FAQ: "Of course. All
>>> FOSS licenses are compatible for aggregations.”
>>
>> Ralph Goers then responded:
>>> The fundamental problem here is that it seems that most of the rest
>>> of us disagree completely with this statement. I know I do. Yes, I am
>>> not an attorney, but I don’t need to be to express that the many
>>> conversations I have had with attorneys for the companies I have
>>> worked for and that their (possibly
>>> incorrect) opinions are the reason why we would prefer to be overly conservative.
>>
>> Thank you Ralph!
>>
>> That is EXACTLY the reason why we moved this conversation to legal-discuss at apache.org, which is a public email list that anyone can read and copy. I'm now also copying license-discuss at opensource.org and the European Legal Network <ftf-legal at fsfeurope.org>.  I'm hoping for responses from attorneys. I'm fully prepared to ride my horse into the sunset if other attorneys tell me I'm inventing copyright law.
>>
>> I will lend my horses to others to ride into the sunset if (PLEASE!) attorneys say something supportive.
>>
>> /Larry
>>
>>
>> -----Original Message-----
>> From: Ralph Goers [mailto:ralph.goers at dslextreme.com]
>> Sent: Wednesday, May 20, 2015 1:18 PM
>> To: Legal Discuss; Lawrence Rosen
>> Subject: Re: Proposal: Apache Third Party License Policy <snip>
>>
>>
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