[License-review] ESA-PL Strong 2.3

Carsten Gerlach cgerlach at tcilaw.de
Sun May 6 13:47:33 UTC 2018


On 03.03.2018 00:42, Bruce Perens wrote:
> 3.2.1 Compilations. In the event of the Distribution of a compilation of
> Software and/or Modifications with other separate and independent works,
> which are not by their nature extensions of the Software and/or the
> Modifications, and which are not combined with it such as to form a
> larger program, in or on a volume of a storage or distribution medium,
> Distribution of the compilation does not cause this License to apply to
> the other parts of the compilation.
> 
> I think this confuses two things: Aggregation of works together on a
> storage medium, and creation of a compilation. Creating a compilation is
> a separate work of authorship embodying some /creativity /and admitting
> the possibility that the compilation can be copyrighted. Mere
> aggregation of works together on a storage medium, by itself, does not
> embody creativity and a separate work of authorship that can be
> copyrighted. The terms in 3.2.1 should apply to aggregation, and would
> also be sufficient to protect compilations.

Whether the aggregation or collection is in itself copyrighted as a
compilation or not, the mere act of aggregating, compiling or collecting
the software along with other software does not trigger the copyleft.
That is clarified by Sec. 3.2.1.

> 3.2.3 External Modules. You may create a Modification by combining
> Software with an external module enabling supplementary functions or
> services and Distribute the external module under different license
> terms, provided that the external module and the Software run in
> separate address spaces, with one calling the other, or each other
> interfacing, when they are run.
> 
> This could be used to arbitrarily circumvent the copyleft, leaving you
> to argue in court about whether some function is "supplementary" or "a
> service". It's not reason to disapprove of the license, it's just weaker
> than license users might realize.
> 
> It also makes use of address spaces as a definition of separation, where
> APIs might really make more sense and would not arbitrarily constrain
> the implementation. Again, not reason for rejection, just sort of arbitrary.

Sec. 3.2.3 and the "separate address space" wording is primarily
intended to clarify client/server-based situations. For example, the
MariaDB project argues that the GPL copyleft applies if a client
application requires the MariaDB server to work. The ESA-PL Strong
copyleft is not intended to extend to such use cases.

If API-based integration is desired, the ESA-PL Weak is probably a
better license choice for the original author/licensor.

> 3.4 Service Provision.
> If You provide access to the Software and/or Modifications or make its
> functionality available by any means or use it to provide services for
> any individual or legal entity other than You, e.g. by provision of
> software-as-a-service, You are obliged to communicate the Source Code of
> the Software and/or Modifications pursuant to Sec. 3.3 to those
> individuals or legal entities.
> 
> Unfortunately, this refers to 3.3, but 3.3(b) still includes the language:
> 
> 3.3(b) make the Source Code of the Software and/or Modifications freely
> accessible by reasonable means *for anyone who possesses the Object Code
> or received the Software and/or Modifications from You,
> 
> *
> But in the case of the software-as-a-service called out in 3.4, the user
> /did not/ receive the things mentioned in 3.3, and thus the text is
> confusing or contradictory.

In our understanding, and based on the context, the reference in Sec.
3.4 is a reference to the consequences of Sec. 3.3, not to the
conditions of Sec. 3.3.  Nevertheless I agree this could be clarified.
We would prefer to add a clarification to the license FAQ.

> So, to fix this, 3.4 should read:
> 
> 3.4 _Service Provision._
> If You provide access to the Software and/or Modifications or make its
> functionality available by any means or use it to provide services for
> any individual or legal entity other than You, e.g. by provision of
> software-as-a-service, You are obliged to make the source code freely
> available to those individuals or legal entities by reasonable means.
> 
> 4.5 Each Contributor must identify all of its Patent Claims by providing
> at a minimum the patent number and identification and contact
> information in a text file included with the Distribution titled "LEGAL".
> 
> My experience is that patent holders don't know what they own, and are
> loath to search their own portfolios. What happens if they /don't
> /specify their patents in that file? Are they penalized with a stronger
> patent grant? Do they make no patent grant at all?

The patent license grant remains unaffected by the obligation to
disclose the patent claims. We do not think that an additional penalty
is justified in case a disclosure is not made. However, failing to
disclose relevant patents could result in liability advantages in case
the (limited) patent license is infringed (since the licensee had no
knowledge of a potential patent issue if the licensor fails to comply
with the disclosure obligation; due to the disclosure obligation there
might be no or only a limited obligation of the licensee to conduct his
or her own patent research).

Kind regards, Carsten



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