[License-review] Comment on MOSL and similar licenses

Tue Apr 2 06:39:52 UTC 2013

Ah, there's the beginning an answer to my last mail's question ! I was 
wondering what an OSI-approved license, or a software license as a whole 
for that matter, was allowed to cover in the spectrum of software 
ranging from the original work to any largely unrelated work that 
happens to make use of former.

To answer your own question: even if I knew of a local attorney who has 
significant experience in both open-source copyright matters and 
international law, I strongly doubt that my current income would be 
enough to hire him/her so as to discuss the matter in private. Thus, 
what I'm doing instead is to take as much inspiration as possible from 
existing OSI-approved licenses, which I assume should be bullet-proof, 
and then take advantage of the fact that as part of the OSI review 
process, my proposal will also be subjected to the scrutinity of several 
specialists of open-source legal matters who have chosen to dedicate 
some of their free time to the improvement of the open-source ecosystem.

The sentence which you quote is actually an example of the former 
practice, since it is borrowed from the Sleepycat license. A similar 
clause may also be found in the GPLv3 license, as its definition of the 
"Corresponding Source" also includes "interface definition files 
associated with source files for the work, and the source code for 
shared libraries and dynamically linked subprograms that the work is 
specifically designed to require". The GPL, however, does clarify that 
"[unmodified] general-purpose tools or generally available free 
programs" are not covered by the license.

Thus, I would like to understand why this sentence works in the context 
of the Sleepycat License, but not in the context of the MOSL draft.

Taking a step aside, there is also something else which is a bit unclear 
to me at this point regarding the overall notion of copyright misuse. If 
one person's copyright cannot be used to affect another person's work in 
any way, doesn't it mean that any software license which states that 
modified versions of the covered work should have its source 
redistributed qualify as copyright misuse? After all, following this 
logic to its extreme, someone who modifies a work licensed under the GPL 
could well claim that the modifications are his sole intellectual 
property, that as such, he can license them under any license he likes, 
and that the only source code which he can be forced to redistribute is 
the original GPL-licensed work which he started from.

As far as I can tell, the reason why GPL-like licenses are still allowed 
to exist in spite of this consideration is that by doing so, our 
developer would violate the original's software license agreement and 
thus no longer be able to distribute it along his modifications. Since a 
diff of the modifications alone is useless, this means that the 
developer needs to comply with the license agreement of the original 
software so as to be able to distribute it, and thus, that he must 
redistribute the source code for his modifications too.

This reasoning would also apply for the whole notion of requiring 
disclosure of all modules contained in an executable file: by using such 
a licensing term, a software author A does not require a user of its 
source code B to disclose all the source code for his software. He only 
states that "If B wants to distribute software based on my licensed 
work, then he must disclose all source code for it. If B chooses not to 
do so, then he must not redistribute any part of my work as part of the 
final executable, which is sure to make the development of derivatives 
quite cumbersome". Doing so would not be a violation of B's intellectual 
property rights, but only an assertion of what is needed for him to 
distribute A's product as part of his own.

Or is there a reasoning or legal mistake in any of these last three 
paragraphs?

Hadrien

Le 02/04/2013 05:01, Lawrence Rosen a écrit :
> Hadrien G. wrote in the proposed MOSL:
>> "For an executable file, complete source code means the source code for
> all modules it contains,"
>
> Over the years since the introduction of the original GPL, many people have
> proposed licenses that attempt to extend the requirement to disclose source
> code to works those people didn't create themselves. That doesn't fly,
> either under antitrust law (for large software distributors) or as a
> practical business matter (for small software vendors). Nobody knowledgeable
> will use software if it requires the disclosure of "all modules" contained
> in an "executable file".
>
> If a software work were protected by a patent license rather than a
> copyright license, its distributor might be accused of "patent misuse" for a
> provision like this in his license. It is one thing to prevent one's own
> patents from being used by third parties; it is another thing altogether to
> interfere with what people can do with *other* things that they own by
> asserting those *limited* patent rights.
>
> While copyright law is different from patent law, there is also a concept of
> copyright misuse. [1] This can be summarized as an attempt by a licensor to
> extend her legitimate rights to license her own work under terms of her own
> choosing by placing restrictions or conditions on the copyrights of works
> she doesn't own.
>
> Have you reviewed that prospect for the MOSL with your attorney in your
> jurisdiction?
>
> /Larry
>
> [1] See http://en.wikipedia.org/wiki/Copyright_misuse
>
> Lawrence Rosen
> Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
> 3001 King Ranch Rd., Ukiah, CA 95482
> Office: 707-485-1242
> Linkedin profile: http://linkd.in/XXpHyu
>
>
> -----Original Message-----
> From: Hadrien G. [mailto:knights_of_ni at gmx.com]
> Sent: Thursday, March 28, 2013 10:16 AM
> To: license-review at opensource.org
> Subject: Re: [License-review] License Committee Report - for board meeting
> of 2013-04-03
>
> A few updates on my part regarding the MOSL's situation...
>
> I have since proposed a fourth working draft (
> http://projects.opensource.org/pipermail/license-review/2013-January/000505.
> html
> ), which removed the unnecessary "unless agreed to in writing" part from the
> disclaimer.
>
> Following the comments of Richard Fontana and Bruce Perens regarding OSD
> 9 compliance, I have also proposed (
> http://projects.opensource.org/pipermail/license-review/2013-March/000538.ht
> ml
> ) a wording change which follows Bruce Perens' suggestion of a GPL-like
> wording, so as to clarify which software is covered by the license.
>
> I have not received any comment on the updated wording for more than two
> weeks, so I can only guess that it means no one has a problem with it.
> Assuming this is the case, here's a fifth working draft which includes it.
>
> ===
>
> **************************************************
> ***    Modular Open Software License (MOSL)    ***
> ***       Working Draft 5, 11 March 2013       ***
> ***  Copyright (c) 2012-2013 Hadrien Grasland  ***
> **************************************************
>
> Redistribution and use of this software, or modified forms of it, are
> permitted provided that the following conditions are met:
>
> * Redistributions of source code must retain this list of conditions, the
> above copyright notice, and the following disclaimer.
> * Redistributions in binary form must include a copy of this list of
> conditions, the above copyright notice, and the following disclaimer,
> whether in documentation or in other provided materials.
> * Redistributions in any form must be accompanied by information on how to
> obtain complete source code for the software, and any accompanying work that
> is based on it. Source code must either be included in the distribution, or
> be available for no more than the cost of its distribution. For an
> executable file, complete source code means the source code for all modules
> it contains, save for modules or files that are typically provided with the
> operating system on which the executable file runs.
>
> UNLESS REQUIRED BY APPLICABLE LAW, THIS SOFTWARE IS PROVIDED "AS IS",
> WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE
> IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A
> PARTICULAR PURPOSE. IN NO EVENT SHALL THE AUTHORS OF THE SOFTWARE BE LIABLE,
> FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL
> DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING IN ANY WAY
> OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
> DAMAGE.
>
>
> Le 28/03/2013 15:10, Luis Villa a écrit :
>> This email is my report for licenses currently submitted to the OSI.
>> If anybody disagrees with my assessment of the list's comments or
>> conclusions, please say so before the meeting of April 3rd.
>>
>> CeCILL 2.1
>> ========
>>
>> Submission:
>> http://projects.opensource.org/pipermail/license-review/2012-May/00041
>> 4.html
>>
>> Comments: Several clarifying questions were asked, indicating the
>> license had been read, but no list members challenged the OSD
>> compliance of the license itself.
>>
>> Recommendation: Board should approve.
>>
>> EUPL 1.2
>> =======
>>
>> Submission:
>> http://projects.opensource.org/pipermail/license-review/2013-March/000
>> 540.html
>>
>> Comments: John Cowan reviewed the changes to the (earlier-approved)
>> versions of the EUPL, and found nothing objectionable.
>>
>> Recommendation: Board should approve.
>>
>> MOSL (working draft 3)
>> =================
>> Submission:
>> http://projects.opensource.org/pipermail/license-review/2013-January/0
>> 00505.html
>>
>> Comments: Richard Fontana and Bruce Perens objected to current
>> language on redistribution as a violation of OSD 9.
>>
>> Recommendation: Not accept at this time.
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