[License-review] License drafting quality and process [was Re: Comment on MOSL and similar licenses]

Mon Apr 8 01:01:09 UTC 2013

On Tue, Apr 2, 2013 at 12:35 PM, Lawrence Rosen <lrosen at rosenlaw.com> wrote:
> Hadrian G. wrote:
>> 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.
>
>
> I'm sorry, Hadrian, both assumptions are demonstrably false. /Larry

I have to agree with Larry here - it really isn't a good idea at this
point to draft a license without real legal consultation; cut and
paste isn't sufficient. Unfortunately, as currently drafted, the OSD
has no formal requirement for such a consultation.

Doing a full legal review of all incoming licenses is impractical for
OSI (for a variety of reasons) but I'd be interested in hearing
suggestions on what other things might stand in as a proxy for such a
review.

For example, in the past others have suggested that a public community
process involving lawyers, such as those conducted for
GPL3/MPL2/CC[2-4]/copyleft-next, would be a useful proxy and something
that OSI could more objectively measure than "quality".

Thoughts?
Luis

> -----Original Message-----
> From: Hadrien G. [mailto:knights_of_ni at gmx.com]
> Sent: Monday, April 01, 2013 11:40 PM
> To: license-review at opensource.org
> Subject: Re: [License-review] Comment on MOSL and similar licenses
>
> 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.
>>> _______________________________________________
>>> License-review mailing list
>>> License-review at opensource.org
>>> http://projects.opensource.org/cgi-bin/mailman/listinfo/license-review
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