[License-discuss] For Public Comment: The Cryptographic Autonomy License

[VanL]

Hello Bruce,

On Sat, Mar 16, 2019 at 7:17 PM Bruce Perens <bruce at perens.com> wrote:

> *As reigning honcho of the Open Source Initiative, I have come to oppress
> your license :-)*
>

<montypython type="serf"> Help! Help! I'm being oppressed!</montypython>



>
> *First, would you please discuss whether there is a sufficient public
> performance right for software defined in 17 USC 106 (4), (5) and (6)? I
> read your discussion of Public Performance and was not enlightened.*
>

Under both US and international law, copyright applies to software by
virtue of software being considered a literary work. See:

"The Copyright Act of 1976, which became effective on January 1, 1978, made
it clear that Congress intended software to be copyrightable. The
definition of literary works in Section 101 states that they are:

works, other than audiovisual works, expressed in words, numbers, or other
verbal or numerical symbols or indicia, regardless of the nature of the
material objects, such as books, periodicals, manuscripts, phonorecords,
film, tapes, disks, or cards, in which they are embodied. {FN7: 17 U.S.C.
§101 <http://www4.law.cornell.edu/uscode/17/101.html>}

Furthermore, the House Report discussing the Act states:

The term “literary works” does not connote any criterion of literary merit
or qualitative value: it includes catalogs, directories, and similar
factual, reference, or instructional works and compilations of data. It
also includes computer data bases, and computer programs to the extent that
they incorporate authorship in the programmer’s expression of original
ideas, as distinguished from the ideas themselves. {FN8: H.R. Rep. No.
94-1476 at 54 <http://digital-law-online.info/lpdi1.0/quotes/fn2-8.htm#q>}"
http://digital-law-online.info/lpdi1.0/treatise17.html

"For the purpose of copyright, the term “literary works” is not confined to
works of literature in the commonly understood sense, but is taken to
include all works expressed in writing, regardless of whether they have
literary merit or not.... Computer software is also considered a “literary
work” and is thus given all of the protections of the copyright law."
https://copyright.uslegal.com/enumerated-categories-of-copyrightable-works/copyright-for-literary-work

"Can I copyright my software or mobile app?
<https://www.wipo.int/copyright/en/faq_copyright.html#accordion__collapse__10>

Computer programs and other types of software are considered as literary
works for copyright purposes. Therefore they receive automatic protection
without the need for registration. In some countries, the process of voluntary
registration
<https://www.wipo.int/copyright/en/faq_copyright.html#accordion__collapse__05_a>
for software may differ from that for other types of work."

https://www.wipo.int/copyright/en/faq_copyright.html


>
> *I'm going to discuss a number of things that aren't necessarily blockers
> for approval, because you've asked for opinions on license quality, etc.*
>
>
>
>
>
>
>
>
>
> *...Conditioned on compliance with section 2, and subject to the
> reservations of section 1.2, you have the world-wide, royalty-free,
> non-exclusive permission to:Take any action with the Work or a Modified
> Work that would infringe the copyright or database protection laws of an
> Applicable Jurisdiction applying to the Work, including Publicly Performing
> any interface derived from the Work; andTake any action with the Work or a
> Modified Work that would infringe any patent claims Licensable by Licensor,
> to the extent that those claims are embodied in the Work as distributed by
> Licensor.*
>
> *It strikes me that the above grant is incomplete, in that there will be
> additional necessary rights separate from copyright and patent in various
> jurisdictions, such as moral rights, mask rights, broadcast rights, etc.
> For assurance that the grant is sufficient and will survive changes in
> venue and evolution of law, you should make a general grant of other
> necessary rights excluding trademark. *
>

I can certainly broaden this in order to encompass any other type of IP
excluding trademark.


>
> *Limitations on Grants*
>
> *[snip]*
>
>
> *I think this works better as a positive grant:Each Licensor grants the
> right to exercise their patent claims that are necessarily infringed by
> each version of the software which that Licensor has licensed, distributed,
> made available, modified, or performed.*
>

I see your point. Let me play around and see if I can come up with
something a little better. The language here was inspired by Mozilla 2.0,
section 2.3.



>
> ...
>
> *You may not use the Software to control any cryptographic keys, seeds, or
> hashes pertaining to third parties where such control would prevent the
> third party from independently exercising the permissions granted under
> this License;*
>
> *This is problematic in that DRM is often implemented using other software
> than "the Software", for example the operating system, or is implemented
> with hardware. And as written this is a use restriction on the software.
> And it's too specific regarding the means. How about:*
>

[snip]

I agree with you on this one. However, the phrasing of this particular
element was important to my client. I did try to make  sure that the
broader language (as you suggest) was also present - see 2.3(a) and (b).



*Combined Work Exception*
>
> *As an exception to the conditions in sections 2.2.1 and 2.2.2, any Source
> Code marked by the Licensor as having the “Combined Work Exception,” or any
> Object Code created from Source Code so marked, may be combined with other
> Software into a larger work, and the resulting larger work may be licensed
> under any other termsused, distributed, or sold under any other license, so
> long as You: a) comply with the notice conditions of section 2.1; b) comply
> with the distribution conditions of 2.2.1 and 2.2.2, relative to the Source
> Code provided to You; and c) comply with section 2.3.*
>
> *I don't understand why you add this complexity rather than simply
> allowing creators of modifications to license their modifications
> separately, as independent works. Is it because they may be derivative?*
>

Yes. And we wanted the option to have certain elements to have limited
application, while preserving the user rights elements of the license.

Thank you for the feedback!

Van
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