Re: Is this license DFSG free?
The licence is non-free. (IANAL) (IANADD)
I'm not inlcuing the licence text again because I'm going part by part. See
the previous message.
Section 1:
This seems Odd. This licence (Base PL) is included in this message. It
conflicts with the main licence in a few places so I assume that the main
licence is the one actually in effect.
This licence as included has both choice-of-law, and choice-of-venue.
The choice-of-venue makes it *non-free*.
Section 2.1
This looks OK.
Section 2.2
Ok, but Yuck.
Section 3.1
Ok, but this should not be in the copyright licence. This can all just be
implied.
Section 3.2
Acceptable, but not good. This package would need to be renamed for debian.
Section 4:
UNFREE: fails Desert Island test.
Section 5 is a revised exhibit A from Base PL. It makes the program non-free
due to the Choice-of-Venue, as mentioned in the commentary of section 1.
The BasePL is a modifed MPL:
BASE PUBLIC LICENSE
Version 1.0
---------------
1. Definitions.
1.0.1. "Commercial Use" means distribution or otherwise making the
Covered Code available to a third party.
1.1. "Contributor" means each entity that creates or contributes to the
creation of Modifications.
1.2. "Contributor Version" means the combination of the Original Code,
prior Modifications used by a Contributor, and the Modifications made by
that particular Contributor.
1.3. "Covered Code" means the Original Code or Modifications or the
combination of the Original Code and Modifications, in each case including
portions thereof.
1.4. "Electronic Distribution Mechanism" means a mechanism generally
accepted in the software development community for the electronic transfer
of data.
1.5. "Executable" means Covered Code in any form other than Source
Code.
1.6. "Initial Developer" means the individual or entity identified as
the Initial Developer in section 1.0 of the accompanying Exhibit A.
1.7. "Larger Work" means a work which combines Covered Code or portions
thereof with code not governed by the terms of this License.
1.8. "License" means this document.
1.8.1. "Licensable" means having the right to grant, to the maximum
extent possible, whether at the time of the initial grant or subsequently
acquired, any and all of the rights conveyed herein.
1.9. "Modifications" means any addition to or deletion from the
substance or structure of either the Original Code or any previous
Modifications. When Covered Code is released as a series of files, a
Modification is:
A. Any addition to or deletion from the contents of a file
containing Original Code or previous Modifications.
B. Any new file that contains any part of the Original Code or
previous Modifications.
1.10. "Original Code" means Source Code of computer software code which
is described in section 2.0 of the accompanying Exhibit A as Original Code,
and which, at the time of its release under this License is not already
Covered Code governed by this License.
1.10.1. "Patent Claims" means any patent claim(s), now owned or
hereafter acquired, including without limitation, method, process, and
apparatus claims, in any patent Licensable by grantor.
1.11. "Source Code" means the preferred form of the Covered Code for
making modifications to it, including all modules it contains, plus any
associated interface definition files, scripts used to control compilation
and installation of an Executable, or source code differential comparisons
against either the Original Code or another well known, available Covered
Code of the Contributor's choice. The Source Code can be in a compressed or
archival form, provided the appropriate decompression or de-archiving
software is widely available for no charge.
1.12. "You" (or "Your") means an individual or a legal entity
exercising rights under, and complying with all of the terms of, this
License or a future version of this License issued under Section 6.1. For
legal entities, "You" includes any entity which controls, is controlled by,
or is under common control with You. For purposes of this definition,
"control" means (a) the power, direct or indirect, to cause the direction or
management of such entity, whether by contract or otherwise, or (b)
ownership of more than fifty percent (50%) of the outstanding shares or
beneficial ownership of such entity.
2. Source Code License.
2.1. The Initial Developer Grant.
The Initial Developer hereby grants You a world-wide, royalty-free,
non-exclusive license, subject to third party intellectual property claims:
(a) under intellectual property rights (other than patent or
trademark) Licensable by Initial Developer to use, reproduce, modify,
display, perform, sublicense and distribute the Original Code (or portions
thereof) with or without Modifications, and/or as part of a Larger Work; and
(b) under Patents Claims infringed by the making, using or selling
of Original Code, to make, have made, use, practice, sell, and offer for
sale, and/or otherwise dispose of the Original Code (or portions thereof).
(c) the licenses granted in this Section 2.1(a) and (b) are
effective on the date Initial Developer first distributes Original Code
under the terms of this License.
(d) Notwithstanding Section 2.1(b) above, no patent license is
granted: 1) for code that You delete from the Original Code; 2) separate
from the Original Code; or 3) for infringements caused by: i) the
modification of the Original Code or ii) the combination of the Original
Code with other software or devices.
2.2. Contributor Grant.
Subject to third party intellectual property claims, each Contributor
hereby grants You a world-wide, royalty-free, non-exclusive license
(a) under intellectual property rights (other than patent or
trademark) Licensable by Contributor, to use, reproduce, modify, display,
perform, sublicense and distribute the Modifications created by such
Contributor (or portions thereof) either on an unmodified basis, with other
Modifications, as Covered Code and/or as part of a Larger Work; and
(b) under Patent Claims infringed by the making, using, or selling
of Modifications made by that Contributor either alone and/or in
combination with its Contributor Version (or portions of such combination),
to make, use, sell, offer for sale, have made, and/or otherwise dispose of:
1) Modifications made by that Contributor (or portions thereof); and 2) the
combination of Modifications made by that Contributor with its Contributor
Version (or portions of such combination).
(c) the licenses granted in Sections 2.2(a) and 2.2(b) are
effective on the date Contributor first makes Commercial Use of the Covered
Code.
(d) Notwithstanding Section 2.2(b) above, no patent license is
granted: 1) for any code that Contributor has deleted from the Contributor
Version; 2) separate from the Contributor Version;
3) for infringements caused by: i) third party modifications of
Contributor Version or ii) the combination of Modifications made by that
Contributor with other software (except as part of the Contributor Version)
or other devices; or 4) under Patent Claims infringed by Covered Code in the
absence of Modifications made by that Contributor.
3. Distribution Obligations.
3.1. Application of License.
The Modifications which You create or to which You contribute are
governed by the terms of this License, including without limitation Section
2.2. The Source Code version of Covered Code may be distributed only under
the terms of this License or a future version of this License released under
Section 6.1, and You must include a copy of this License with every copy of
the Source Code You distribute. You may not offer or impose any terms on any
Source Code version that alters or restricts the applicable version of this
License or the recipients' rights hereunder. However, You may include an
additional document offering the additional rights described in Section 3.5.
3.2. Availability of Source Code.
Any Modification which You create or to which You contribute must be
made available in Source Code form under the terms of this License either on
the same media as an Executable version or via an accepted Electronic
Distribution Mechanism to anyone to whom you made an Executable version
available; and if made available via Electronic Distribution Mechanism, must
remain available for at least twelve (12) months after the date it initially
became available, or at least six (6) months after a subsequent version of
that particular Modification has been made available to such recipients. You
are responsible for ensuring that the Source Code version remains available
even if the Electronic Distribution Mechanism is maintained by a third
party.
3.3. Description of Modifications.
You must cause all Covered Code to which You contribute to contain a
file documenting the changes You made to create that Covered Code and the
date of any change. You must include a prominent statement that the
Modification is derived, directly or indirectly, from Original Code provided
by the Initial Developer and including the name of the Initial Developer in
(a) the Source Code, and (b) in any notice in an Executable version or
related documentation in which You describe the origin or ownership of the
Covered Code.
3.4. Intellectual Property Matters
(a) Third Party Claims.
If Contributor has knowledge that a license under a third party's
intellectual property rights is required to exercise the rights granted by
such Contributor under Sections 2.1 or 2.2, Contributor must include a text
file with the Source Code distribution titled "LEGAL" which describes the
claim and the party making the claim in sufficient detail that a recipient
will know whom to contact. If Contributor obtains such knowledge after the
Modification is made available as described in Section 3.2, Contributor
shall promptly modify the LEGAL file in all copies Contributor makes
available thereafter and shall take other steps (such as notifying
appropriate mailing lists or newsgroups) reasonably calculated to inform
those who received the Covered Code that new knowledge has been obtained.
(b) Contributor APIs.
If Contributor's Modifications include an application programming
interface and Contributor has knowledge of patent licenses which are
reasonably necessary to implement that API, Contributor must also include
this information in the LEGAL file.
(c) Representations.
Contributor represents that, except as disclosed pursuant to
Section 3.4(a) above, Contributor believes that Contributor's Modifications
are Contributor's original creation(s) and/or Contributor has sufficient
rights to grant the rights conveyed by this License.
3.5. Required Notices.
You must duplicate the notice in section 3.0 of the accompanying
Exhibit A in each file of the Source Code. If it is not possible to put
such notice in a particular Source Code file due to its structure, then You
must include such notice in a location (such as a relevant directory) where
a user would be likely to look for such a notice. If You created one or
more Modification(s) You may add your name as a Contributor to the notice
described in section 3.0 of Exhibit A. You must also duplicate this
License in any documentation for the Source Code where You describe
recipients' rights or ownership rights relating to Covered Code. You may
choose to offer, and to charge a fee for, warranty, support, indemnity or
liability obligations to one or more recipients of Covered Code. However,
You may do so only on Your own behalf, and not on behalf of the Initial
Developer or any Contributor. You must make it absolutely clear than any
such warranty, support, indemnity or liability obligation is offered by You
alone, and You hereby agree to indemnify the Initial Developer and every
Contributor for any liability incurred by the Initial Developer or such
Contributor as a result of warranty, support, indemnity or liability terms
You offer.
3.6. Distribution of Executable Versions.
You may distribute Covered Code in Executable form only if the
requirements of Section 3.1-3.5 have been met for that Covered Code, and if
You include a notice stating that the Source Code version of the Covered
Code is available under the terms of this License, including a description
of how and where You have fulfilled the obligations of Section 3.2. The
notice must be conspicuously included in any notice in an Executable
version, related documentation or collateral in which You describe
recipients' rights relating to the Covered Code. You may distribute the
Executable version of Covered Code or ownership rights under a license of
Your choice, which may contain terms different from this License, provided
that You are in compliance with the terms of this License and that the
license for the Executable version does not attempt to limit or alter the
recipient's rights in the Source Code version from the rights set forth in
this License. If You distribute the Executable version under a different
license You must make it absolutely clear that any terms which differ from
this License are offered by You alone, not by the Initial Developer or any
Contributor. You hereby agree to indemnify the Initial Developer and every
Contributor for any liability incurred by the Initial Developer or such
Contributor as a result of any such terms You offer.
3.7. Larger Works.
You may create a Larger Work by combining Covered Code with other code
not governed by the terms of this License and distribute the Larger Work as
a single product. In such a case, You must make sure the requirements of
this License are fulfilled for the Covered Code.
4. Inability to Comply Due to Statute or Regulation.
If it is impossible for You to comply with any of the terms of this
License with respect to some or all of the Covered Code due to statute,
judicial order, or regulation then You must: (a) comply with the terms of
this License to the maximum extent possible; and (b) describe the
limitations and the code they affect. Such description must be included in
the LEGAL file described in Section 3.4 and must be included with all
distributions of the Source Code. Except to the extent prohibited by statute
or regulation, such description must be sufficiently detailed for a
recipient of ordinary skill to be able to understand it.
5. Application of this License.
This License applies to code to which the Initial Developer has
attached the notice in section 3.0 of Exhibit A and to related Covered Code.
6. Versions of the License.
6.1. New Versions.
The Initial Developer may publish revised and/or new versions of the
License from time to time. Each version will be given a distinguishing
version number.
6.2. Effect of New Versions.
Once Covered Code has been published under a particular version of the
License, You may always continue to use it under the terms of that version.
You may also choose to use such Covered Code under the terms of any
subsequent version of the License published by the InitialDeveloper. No one
other than the Initial Developer has the right to modify the terms
applicable to Covered Code created under this License.
6.3. Derivative Works.
If You create or use a modified version of this License (which you may
only do in order to apply it to code which is not already Covered Code
governed by this License), You must (a) rename Your license so that the
phrases identified in section 4.0 of the accompanying Exhibit A or any
confusingly similar phrases do not appear in your license (except to note
that your license differs from this License) and (b) otherwise make it clear
that Your version of the license contains terms which differ from this
License. (Filling in the name of the Initial Developer, Original Code or
Contributor in the notice described in Exhibit A shall not of themselves be
deemed to be modifications of this License.)
7. DISCLAIMER OF WARRANTY.
COVERED CODE IS PROVIDED UNDER THIS LICENSE ON AN "AS IS" BASIS,
WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, WARRANTIES THAT THE COVERED CODE IS FREE OF DEFECTS,
MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE
RISK AS TO THE QUALITY AND PERFORMANCE OF THE COVERED CODE IS WITH YOU.
SHOULD ANY COVERED CODE PROVE DEFECTIVE IN ANY RESPECT, YOU (NOT THE INITIAL
DEVELOPER OR ANY OTHER CONTRIBUTOR) ASSUME THE COST OF ANY NECESSARY
SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN
ESSENTIAL PART OF THIS LICENSE. NO USE OF ANY COVERED CODE IS AUTHORIZED
HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
8. TERMINATION.
8.1. This License and the rights granted hereunder will terminate
automatically if You fail to comply with terms herein and fail to cure such
breach within 30 days of becoming aware of the breach. All sublicenses to
the Covered Code which are properly granted shall survive any termination of
this License. Provisions which, by their nature, must remain in effect
beyond the termination of this License shall survive.
8.2. If You initiate litigation by asserting a patent infringement
claim (excluding declatory judgment actions) against Initial Developer or a
Contributor (the Initial Developer or Contributor against whom You file such
action is referred to as "Participant") alleging that:
(a) such Participant's Contributor Version directly or indirectly
infringes any patent, then any and all rights granted by such Participant to
You under Sections 2.1 and/or 2.2 of this License shall, upon 60 days notice
from Participant terminate prospectively, unless if within 60 days after
receipt of notice You either: (i) agree in writing to pay Participant a
mutually agreeable reasonable royalty for Your past and future use of
Modifications made by such Participant, or (ii) withdraw Your litigation
claim with respect to the Contributor Version against such Participant. If
within 60 days of notice, a reasonable royalty and payment arrangement are
not mutually agreed upon in writing by the parties or the litigation claim
is not withdrawn, the rights granted by Participant to You under Sections
2.1 and/or 2.2 automatically terminate at the expiration of the 60 day
notice period specified above.
(b) any software, hardware, or device, other than such Participant's
Contributor Version, directly or indirectly infringes any patent, then any
rights granted to You by such Participant under Sections 2.1(b) and 2.2(b)
are revoked effective as of the date You first made, used, sold,
distributed, or had made, Modifications made by that Participant.
8.3. If You assert a patent infringement claim against Participant
alleging that such Participant's Contributor Version directly or indirectly
infringes any patent where such claim is resolved (such as by license or
settlement) prior to the initiation of patent infringement litigation, then
the reasonable value of the licenses granted by such Participant under
Sections 2.1 or 2.2 shall be taken into account in determining the amount or
value of any payment or license.
8.4. In the event of termination under Sections 8.1 or 8.2 above, all
end user license agreements (excluding distributors and resellers) which
have been validly granted by You or any distributor hereunder prior to
termination shall survive termination.
9. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT
(INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL YOU, THE INITIAL
DEVELOPER, ANY OTHER CONTRIBUTOR, OR ANY DISTRIBUTOR OF COVERED CODE, OR ANY
SUPPLIER OF ANY OF SUCH PARTIES, BE LIABLE TO ANY PERSON FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER
FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES,
EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH
OR PERSONAL INJURY RESULTING FROM SUCH PARTY'S NEGLIGENCE TO THE EXTENT
APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS
EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
10. U.S. GOVERNMENT END USERS.
The Covered Code is a "commercial item," as that term is defined in 48
C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and
"commercial computer software documentation," as such terms are used in 48
C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R.
227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users
acquire Covered Code with only those rights set forth herein.
11. MISCELLANEOUS.
11.1 Complete Agreement
This License represents the complete agreement concerning subject
matter hereof. If any provision of this License is held to be unenforceable,
such provision shall be reformed only to the extent necessary to make it
enforceable.
11.2 Jurisdiction
The jurisdiction whose laws shall govern this license is identified in
section 5.0 of the accompanying Exhibit A.
11.3 Losing Party Responsible for Costs
In any proceding brought in light of this license, the losing party
shall be responsible for costs, including without limitation, court costs
and reasonable attorneys' fees and expenses.
11.4 Exclusion of the United Nations Convention on Contracts
The application of the United Nations Convention on Contracts for the
International Sale of Goods is expressly excluded.
11.5 Construction Against Drafter Not Applicable
Any law or regulation which provides that the language of a contract
shall be construed against the drafter shall not apply to this License.
12. RESPONSIBILITY FOR CLAIMS.
As between Initial Developer and the Contributors, each party is
responsible for claims and damages arising, directly or indirectly, out of
its utilization of rights under this License and You agree to work with
Initial Developer and Contributors to distribute such responsibility on an
equitable basis. Nothing herein is intended or shall be deemed to constitute
any admission of liability.
13. MULTIPLE-LICENSED CODE.
Initial Developer may designate portions of the Covered Code as
"Multiple-Licensed". "Multiple-Licensed" means that the Initial Developer
permits you to utilize portions of the Covered Code under Your choice of the
NPL or the alternative licenses, if any, specified by the Initial Developer
in the source code notice in section 3.0 of the accompanying Exhibit A.
EXHIBIT A - Base Public License.
1.0 Initial Developer
2.0 Original Code
3.0 Source Code Notice
``The contents of this file are subject to the ________________ License
Version 1.1 (the "License"); you may not use this file except in
compliance with the License. You may obtain a copy of the License at
_______________________________.
Software distributed under the License is distributed on an "AS IS"
basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the
License for the specific language governing rights and limitations
under the License.
The Original Code is ______________________________________.
The Initial Developer of the Original Code is ________________________.
Portions created by ______________________ are Copyright (C) ______
_______________________. All Rights Reserved.
Contributor(s): ______________________________________.
4.0 Similar Phrases in Derivative Licenses
For the purposes of section 6.3 of the Base Public License, phrases not
allowed in derivative licenses shall include:
______________________________________.
5.0 Jurisdiction
This License shall be governed by _____ law provisions (except to the
extent applicable law, if any, provides otherwise), excluding its
conflict-of-law provisions. With respect to disputes in which at least one
party is a citizen of, or an entity chartered or registered to do business
in the United States of America, any litigation relating to this License
shall be subject to the jurisdiction of the Federal Courts of the _________
District of ______, with venue lying in __________ County, ______.
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