Re: Export clauses in XFree86 licensing
Branden Robinson said:
> On Tue, Sep 16, 2003 at 10:19:54PM +0200, Henning Makholm wrote:
> I'd appreciate a re-analysis of the following. As an interested party
> I will sit it out if I can, and act upon the consensus of the
> participants in the discussion.
Here's my analysis. IANADD, IANAL. I Just Read Debian-Legal (IJRDL).
>> 7. Compliance with Laws; Non-Infringement. Recipient shall comply with
>> all applicable laws and regulations in connection with use and
>> distribution of the Subject Software, including but not limited to,
>> all export and import control laws and regulations of the U.S.
>> government and other countries. Recipient may not distribute Subject
>> Software that (i) in any way infringes (directly or contributorily)
>> the rights (including patent, copyright, trade secret, trademark or
>> other intellectual property rights of any kind) of any other person or
>> entity or (ii) breaches any representation or warranty, express,
>> implied or statutory, which under any applicable law it might be
>> deemed to have been distributed.
Basically, this is saying that it's against the license to do anything
illegal.
Practically, this is a no-op, but if this clause were abused by the
copyright holder, they could sue you for copyright violation when you get
out of jail for breaking whatever law it was.
There's no DFSG issue with this clause.
>>
>> 8. Claims of Infringement. If Recipient at any time has knowledge of
>> any one or more third party claims that reproduction, modification,
>> use, distribu- tion, import or sale of Subject Software (including
>> particular functionality or code incorporated in Subject Software)
>> infringes the third party's intel- lectual property rights, Recipient
>> must place in a well-identified web page bearing the title "LEGAL" a
>> description of each such claim and a description of the party making
>> each such claim in sufficient detail that a user of the Subject
>> Software will know whom to contact regarding the claim. Also, upon
>> gaining such knowledge of any such claim, Recipient must conspicuously
>> include the URL for such web page in the Exhibit A notice required
>> under Sec- tions 2 and 3, above, and in the text of any related
>> documentation, license agreement or collateral in which Recipient
>> describes end user's rights relat- ing to the Subject Software. If
>> Recipient obtains such knowledge after it makes Subject Software
>> available to any other person or entity, Recipient shall take other
>> steps (such as notifying appropriate mailing lists or news- groups)
>> reasonably calculated to inform those who received the Subject Soft-
>> ware that new knowledge has been obtained.
This might be problematic. It is basically saying that if you know of an
infringement claim (regarding this software, by any third party), you must
pass along this knowlege to others.
The requirements to (in my words) "advertise" any legal claims regarding the
software are probably not any more non-free than the old 4-clause BSD
license, in this implementation.
However, this goes well beyond the normal requirements of notification,
since it kicks in on any claim by third parties. If a third party (let's
call them SCO) files even a trivial claim against the software, all
distributors must make these announcements. The distributor's announcement
might contribute to a "willful infringement" claim against later users.
>>
>> (From the "SGI FREE SOFTWARE LICENSE B"):
>>
>> 7. Claims of Infringement. If Recipient learns of any third party
>> claim that any disposition of Covered Code and/or functionality wholly
>> or partially infringes the third party's intellectual property rights,
>> Recipient will promptly notify SGI of such claim.
Similar to the above, but only requires notifying SGI (not all users as
above). Assuming that SGI owns the copyright to the licensed work, this is
slightly better than the above.
Both of these clauses fail the Desert Island test, if there are lawyers on
the island. (That's not exactly the same as the standard Desert Island
test, so it might not matter for DFSG-freeness.)
These licenses are not GPL-compatible (which might open another can of worms)
--Joe
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