[License-review] For Approval: Open Logistics License

[Pamela Chestek]

(In my personal capacity)

Hi Andreas,

Is English the language of the agreement? I want to make sure we're 
reviewing the actual agreement itself, not your translation of it. If 
the license is in German, we will need to have the German version and a 
certified translation for review.

Here are my concerns about this license:

_Definition for "Subject Matter of the License" _
This is confusingly defined. It states that it means "the copyrighted 
works of the software components ..." and continues "as well as the 
other components protected under copyright, design and/or patent law 
which are made available under this license ... as well as the 
application and user documentation."

First, with respect to the first use of the word "copyrighted," that 
suggests the license is going to be limited to just the copyrightable 
content, not, for example, any patentable content. The Apache license's 
parallel provision, which is the definition for the "Work," is somewhat 
similarly flawed because it uses the term of art "authorship," which one 
can read as limiting the license to only copyright content. That's 
something we cannot change in the Apache license, but I would suggest 
removing the "copyrighted" limitation from this license to make sure it 
isn't construed as limited to only content that is copyrightable.

The same definition then refers to "as well as the other components 
protected under copyright, design and/or patent law which are made 
available under this license in accordance with a copyright notice 
inserted into or attached to the work ...." This clause seems 
unnecessary. If a third-party included component states that it is under 
the Open Logistics License, then there is no need to also mention it in 
the license for the larger work. It will only cause problems in license 
interpretation.

This phrase also likely goes beyond what may be the original scope of 
the license for the "other component." The text says the Open Logistics 
License applies to "the other components protected under copyright, 
design and/or patent law ... /*as well as the application and user 
documentation*/." This says that the Open Logistics License will apply 
to the "application and user documentation" of third party components, 
which would appear to be regardless of what the licenses actually are 
for the application and documentation as assigned by the owner of the 
third party component. This is a copyleft - I assume it wasn't intended, 
but that's what it says.

If the intent was that the Open Logistics License applies to 
"application and user documentation" for the originally licensed code, 
not for the "other components," the sentence needs to be restructured. 
At the moment it states fairly clearly (under US English grammar rules) 
that the "application and user documentation" is referring to the "other 
components," not the larger work being licensed.

Also, if the intention is that the Open Logistics License applies, not 
only to the code, but to the "application and user documentation," this 
isn't necessarily a problem but I question whether it is a wise choice 
to require that text works, like documentation, be under the same 
license as the software code. It also seems to be a bit of a trap for 
the unwary; I expect that most people believe that the software code and 
its documentation can be separately licensed and won't realize that the 
code license is also dictating the documentation license.

Finally, what is the "application" and how does it differ from the work 
being licensed?
_
__Definition for "Source Code"_
It is defined as "in the programming language." I'm not sure why this 
was changed from the common and well-understood concept of that source 
code is the preferred form for making modifications. I am just wary of 
new definitions when there is a well-understood and perfectly 
serviceable definition. It is an opportunity to create ambiguity about 
the meaning and intent for the term. What problem were you trying to 
solve with this new definition?

_Definition of "Object Code"_
What does the word "interim" do? Shouldn't the final manifestation of 
the code that will run on the computer also be considered "object code"?

_§2 Granting of usage rights
_Why is the grant so detailed? Why is it not simply a grant of all the 
rights of the copyright owner, similar to what you have done for the 
patent grant? What grant have you made that isn't also a grant of one of 
the exclusive rights of the copyright owner? My concern about such a 
detailed grant, rather than one that simply reiterates all the exclusive 
rights of the copyright owner, is that there will be unintentional 
loopholes. I see from your website that you intend to ensure that the 
rights as described in the Supplementary Terms of Contract for the 
Procurement of IT Services are clearly granted, but perhaps it would be 
better to grant all copyright rights (e.g., reproduce, distribute, 
exhibit, make available, etc.) and then add "including, but not limited 
to," the rights you have enumerated.

_§3 Grant of a patent license_
The grant of the copyright license is "for the terms of the copyrights" 
but the term of the patent grant is not stated. I don't think it's 
necessary to state a term since the grant is perpetual, but having two 
clauses that say something different invites challengers to find some 
distinction between the two. It would also be easier to understand the 
license if the terms of the patent license grant (non-exclusive, 
perpetual, etc.) was parallel to the grant in the copyright license. It 
would then be clear that the scope of both grants is meant to be the same.

"Under no circumstances will anything in this Section 3 be construed as 
granting, by implication, estoppel or otherwise, a license to any patent 
for which the respective Contributors have not granted patent rights 
when they submitted their respective Contributions." What is this 
sentence designed to do? The grant clause defines the grant (patents 
that read on the contribution or the whole work at the time of 
contribution). It's not necessary to say that there is no grant of what 
is not granted.

As to the patent license termination, it does not appear to be limited 
to proceedings for infringement only of patents that were licensed, but 
any patent infringement lawsuit at all brought by a licensee. (This 
might also be McCoy's point.) Also, as I read it, not only is the patent 
license terminated, but the entire license is terminated: "all patent 
licenses which have been granted to You under this License for the 
Subject Matter of the License /*as well as this License in itself*/ 
[that is, the Open Logistics License as a whole] shall be deemed 
terminated ..." Was that the intent? I know that termination provisions 
vary and I'm not sure what the current view is on the appropriateness of 
terminating the copyright license too, but there are OSI-approved 
licenses that terminate the copyright grant too.

I don't understand this sentence: "the Contributors are entitled to 
decide in their own discretion to abandon respectively maintain any 
patent designated by patent number upon delivery of the Subject Matter 
of the License." It is the words "to abandon respectively maintain any 
patent ... upon delivery of the Subject Matter of the License" that are 
very unclear. What does "abandon respectively maintain any patent" mean? 
It is saying both abandon and maintain without any conjunction.

You state "We have been asked by some partners of the current project 
for which the license has been drafted to include the possibility that 
they submit a list of patents they are not willing to contribute to the 
work. This is reflected in the license text. However, it is part of our 
workflow for the inclusion of contributions into the project that no 
contributions would be accepted where a patent that would be part of 
such list of patents excluded from the contribution could be 
applicable." If above sentence is where you are stating that a patentee 
may withhold a patent license to its contribution, it will block the 
license from being approved. A license that allows someone to withhold 
patents from licensing is inconsistent with the OSD and cannot be 
approved. It doesn't matter that your project doesn't accept 
patent-encumbered software, in order for a license to be approved by the 
OSI it must be acceptable for all users in all circumstances.

If instead this sentence is meant to advise that a patentee can "release 
their patents in order to make them available to the public" as you 
mention below, which I understand to mean abandoning patent rights, I 
don't think it's necessary to say that expressly in the license. No one 
using the software will insist that a patentee maintain a patent.

_§7 Limited warranty__
_"This License is granted free of charge and thus constitutes a gift. 
Accordingly, any warranty is excluded." Is that the undeniable 
conclusion under German law or is this statement enforceable as a matter 
of contract? That wouldn't necessarily be the case under US law. In the 
US a license grant isn't necessarily a gift and one can't transform it 
into a gift by just saying so.

Does the statement "The Subject Matter of the License is not completed 
and may therefore contain ... additional patents of Contributors" a 
reference to patents that are carved out of the grant (not acceptable, 
as mentioned above)? If not, what is the meaning?

_§8 Limitation of liability_
Reiterating Eric's point that "Except in cases of intent and gross 
negligence or causing personal injury" is unclear. Is it two things, 
causing personal injury intentionally or causing personal injury through 
gross negligence, or three things, an intentional tort not related to 
personal injury, gross negligence not related to personal injury, and 
personal injury no matter how caused, even if only by simple negligence? 
Can the language be clarified?

Regarding intentional infringement, as well as that the software is 
"accurate, devoid of mistakes, complete and/or usable for any purpose," 
are these claims that cannot be excluded by contract under German law?

As to others' comments about the applicable law provision, there are 
other approved licenses that have choice-of-law provisions, so I don't 
see that as a stopper. What I see as the stopper is the ability to NOT 
grant a patent license for a patent that reads on a contribution. That 
is a full stop for OSI approval.

It also is not a well-drafted English-language license, as I've 
described above. We have learned from experience that these licenses can 
have lives that are longer than ours and a drafting error or ambiguity 
will last forever. For that reason I believe it is important that new 
open source licenses be written as cleanly as possible. This one, 
though, has a number of flaws that I believe make it unacceptable as a 
new open source license.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com



On 5/30/2022 5:49 AM, Andreas Nettsträter wrote:
>
> Dear all,
>
> Finally, I managed to collect all input. Therefore, I’m happy to 
> address your concerns regarding our license.
>
> I hope the clarifications help to understand our approach a bit more. 
> If there is need for more details, please reply and I’ll try to answer 
> faster than in the first round.
>
> Regards
>
> Andreas
>
> _1. Eric’s concern with regard to the limitation of liability in the 
> license_
>
> With regard to the comment on the limitation of liability, Eric fears 
> that contributors will be inappropriately liable under the license. In 
> general, we do not see any reasonable claims against contributors 
> since contributors do not enter contracts with users but only allow to 
> use the IP they created with their contribution (they grant rights of 
> use). At least we are not aware of any claims against contributors to 
> open source software. Furthermore, the limitation of liability clause 
> itself does not create any liability but limits the liability in case 
> it arises at all. Therefore, it should be beneficial to all 
> contributors. Since the license is drafted to comply at least with 
> German laws, a further limitation of liability would not be possible 
> once liability arose at all. E.g., the comprehensive limitation of 
> liability in the Apache 2.0 license would be void, if it had to be 
> interpreted under German (or other European laws). Since liability for 
> personal injury cannot be excluded under German laws on general terms 
> and conditions, adjustments to the close would not benefit contributors.
>
> __
>
> _2. Comments No. 1 and No. 2 by McCoy Smith_
>
> McCoy’s assumption is 100% correct, there is no comprehensive European 
> contract law any more than there is in the USA. The adjustments made 
> in the license compared to the “original” Apache 2.0 license are made 
> in accordance with German law. We decided to use a choice of law 
> clause in order to be sure that the license is enforceable. As 
> mentioned above, in the case German laws applied wrt the Apache 2.0 
> license, some of the provisions would be void and therefore not 
> enforceable. However, it is our understanding that there have been few 
> court cases wrt to open source licenses and even fewer decisions that 
> relied on the enforceability of clauses that could/would be void under 
> appliable laws.
>
> __
>
> _3. Comment No. 3 by McCoy Smith: _
>
> According to German law, one can only deviate from or limit liability 
> to a very limited extent by means of general terms and conditions. 
> Assuming that open source software is handed over as a gift, we 
> fortunately no longer have comprehensive liability for simple 
> negligence, but "only" the liability specified in the licence (under 
> German laws). However, it is not possible to further deviate from this 
> liability in favour of the potentially liable party.
>
> __
>
> _4. Comment No. 4 by McCoy Smith: _
>
> We see three issues here.
>
> a. There seems to be a misunderstanding wrt the last paragraph of the 
> patent clause. Of course, any patentee can unilaterally "revoke" 
> his/her patent with the consequence that it ceases to exist and 
> therefore a right to use it is no longer required. However, this is 
> not a revocation of a patent once granted in the sense that the 
> recipient would then no longer be allowed to use it. What we have seen 
> in the past is that companies and public institutions have released 
> their patents in order to make them available to the public, 
> therefore, we wanted to include this statement in the license.
>
> b. The right to use the patent should be limited to the part of the 
> works that existed at the time of filing a contribution. Otherwise, 
> further contributions from third parties could lead to a situation 
> where a contributor would have to grant rights to use patents which 
> have not been necessary at the time of the contribution. We think this 
> is in line with the patent clause in the Apache 2.0 license.
>
> c. The last issue might be the most important for you. We have been 
> asked by some partners of the current project for which the license 
> has been drafted to include the possibility that they submit a list of 
> patents they are not willing to contribute to the work. This is 
> reflected in the license text. However, it is part of our workflow for 
> the inclusion of contributions into the project that no contributions 
> would be accepted where a patent that would be part of such list of 
> patents excluded from the contribution could be applicable.
>
> *Von:* License-review <license-review-bounces at lists.opensource.org> 
> *Im Auftrag von *Andreas Nettsträter
> *Gesendet:* Montag, 16. Mai 2022 18:36
> *An:* License submissions for OSI review 
> <license-review at lists.opensource.org>
> *Betreff:* Re: [License-review] For Approval: Open Logistics License
>
> Dear all,
>
> I'm still waiting for the final input from all partners. Corona/Covid 
> are still causing longer delays here.
>
> Sorry for that. I hope that I can provide feedback until next week the 
> latest.
>
> Regards
>
> Andreas
>
> ------------------------------------------------------------------------
>
> *From:*License-review <license-review-bounces at lists.opensource.org> on 
> behalf of Andreas Nettsträter 
> <andreas.nettstraeter at openlogisticsfoundation.org>
> *Sent:* Sunday, April 17, 2022 5:15:36 PM
> *To:* License submissions for OSI review 
> <license-review at lists.opensource.org>
> *Subject:* Re: [License-review] For Approval: Open Logistics License
>
> Dear all,
>
> Thanks for the useful feedback.
>
> I'll talk to the lawyers and give you more information on the 
> decisions and reasons for the changes. Also regarding the connection 
> between German and European law.
>
> Because of Easter holidays this could take some days.
>
> Regards
>
> Andreas
>
> ------------------------------------------------------------------------
>
> *From:*License-review <license-review-bounces at lists.opensource.org> on 
> behalf of Eric Schultz <eric at wwahammy.com>
> *Sent:* Saturday, April 16, 2022 9:12:50 PM
> *To:* License submissions for OSI review 
> <license-review at lists.opensource.org>
> *Subject:* Re: [License-review] For Approval: Open Logistics License
>
> Andreas,
>
> Thanks for submitting this!
>
> I'm no lawyer but I'm a little uncomfortable with the wording for the 
> disclaimer of liability around which words the "and" and "or" apply to.
>
> For example does it mean:
>
> 1. (intent and gross negligence) OR (causing personal injury), or
>
> 2. (intent) and (gross negligence or causing personal injury)
>
> While we should definitely avoid any harm to our users, 1 seems like 
> it's creating a pretty high risk to developers. After all, in some 
> cases it's nearly impossible to avoid all possible injuries to all 
> persons everywhere. Depending on the design of the software, it may be 
> dangerous to some subset of users while perfectly safe to other users.
>
> One thought I have is that, in cases of potential liability, I am 
> under the impression that certain punishments apply if someone intends 
> to cause the injury or exhibited gross negligence. So does it make 
> sense to have an "and" there?
>
> My thinking is it would make more sense to rewrite the clause to 
> mean:  (intent OR gross negligence) AND (causing personal injury). 
> After all, if you exhibit intent and gross negligence but don't cause 
> any injury, as I understand it, there would be no civil liability 
> because there would be no injured party. Then again, I'm not a lawyer 
> and I'm based in the US so I'm applying my very limited knowledge to that.
>
> Eric
>
> On Thu, Apr 14, 2022 at 6:37 AM Andreas Nettsträter 
> <andreas.nettstraeter at openlogisticsfoundation.org> wrote:
>
>     Dear License Review Team,
>
>     I would like to propose the Open Logistics License for an approval.
>
>     You can find the plain text copy of the license in the attachment
>     and the requested additional information in the following.
>
>     Rationale:
>     This new license is intended to represent the rights and
>     obligations of an established license, such as Apache v2, while
>     respecting the differences between US and European law. The
>     changes were mainly done in the paragraphs regarding warranty and
>     liability.
>
>     Distinguish:
>     The Open Logistics License is based on Apache v2, but has been
>     modified to comply more with European law.
>
>     Legal review:
>     The entire process of discussing and drafting the license was
>     accompanied by BHO Legal, a German law firm specialized in IT law.
>     Adjustments were made to specifically adapt the rules on the
>     patent license, warranty, and liability to European law. The
>     adjustments are intended to strengthen the acceptance of the
>     license by European companies and minimize (perhaps only
>     perceived) risks. The license was subsequently reviewed and
>     approved by several in-house lawyers of larger European companies.
>     Further details and justifications for the individual changes can
>     be provided on request.
>
>     Proliferation category:
>     The decision on one specific category is quite hard. The license
>     is compatible with Apache2, but was adapted to some specific
>     European rules. The license will be used by a larger group of
>     companies in the frame of open source development for logistics
>     and supply chain management, but is, of course, not limited to
>     this purpose. Therefore, the license can be seen as a special
>     purpose license.
>
>     I'm happy to deliver more information, if needed.
>
>     Regards from Germany
>     Andreas
>
>     --
>     Andreas Nettsträter
>     Open Logistics Foundation
>
>     _______________________________________________
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>
>
> -- 
>
> Eric Schultz, Developer and FOSS Advocate
>
> wwahammy.com 
> <https://deu01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwwahammy.com%2F&data=05%7C01%7Candreas.nettstraeter%40openlogisticsfoundation.org%7C1d60d6063c4e413eb46608da375a5b52%7Cb346d634acfb42c7bd44f1557ee89b1b%7C1%7C0%7C637883158467177587%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000%7C%7C%7C&sdata=SuihDUB8XdU5JT7W2%2Bk9pVtxCXdIleYC2Muu%2B5lkZFs%3D&reserved=0>
>
> eric at wwahammy.com
>
> @wwahammy
>
> Pronouns: He/his/him
>
>
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