Re: JasPer License Issues: Some Potentially Good News
On Thu, Jan 29, 2004 at 06:50:32PM -0800, Michael Adams wrote:
> I have some potentially good news. Image Power seems to be agreeable
> to revising the JasPer software license to address the concerns raised
> by you and other members of the open-source community. I have appended
> the first preliminary draft of the new license to this email for your
> feedback. I would very much appreciate your comments, as it would be a
> waste to go through the trouble to change the license for you folks if
> the result will not meet your needs.
First of all I want to thank you for considering this issue and working
with us to try and resolve it.
> BTW, the new license was largely copied from the open-source-certified
> X11 license. Image Power has added condition 3 and I wonder if this is
> alright. The IBM Public License (certified by the Open Source
> Initiative) also seems to have a similar type of clause. So, this
> appears not to go against the spirit of open source.
Unfortunately, it still isn't acceptable. Your license differs from the
IBM Public License in a subtle way.
The IBM license grants a patent license to any patent held by a
contributor when that contributors contribution alone or together with
the entire program would necessarily violate the patent to sell or use
the software. This is an important distinction to understand because it
plays a key role in the differences.
The IBM license then goes on to revoke only the patent license I
described above if patent litigation is initiated against any of the
contributors. The copyright license is maintained.
All of the recipients rights are revoked if they fail to comply with
and remedy any failures to comply with the license.
The difference here is that copyright license terms are never revoked
unless you failed to comply with the license. The patent license is an
additional right that most existing licenses don't give. So some people
feel it is acceptable to allow it to be taken away. Basically a patent
license is not a required right to meet the OSD so potentially taking
the right away is not going to cause problems with meeting the OSD.
However, I should note that this interpretation is not without
controversy within the community. If you look in the archives of
debian-legal you will find extensive debate about the issue of patent
licensing in free software licenses.
I'll detail the problems with your new license below and propose how to
fix it.
> JasPer License Version 2.0
>
> Copyright (c) 1999-2000 Image Power, Inc.
> Copyright (c) 1999-2000 The University of British Columbia
> Copyright (c) 2001-2003 Michael David Adams
>
> All rights reserved.
>
> Permission is hereby granted, free of charge, to any person (the
> "User") obtaining a copy of this software and associated documentation
> files (the "Software"), to deal in the Software without restriction,
> including without limitation the rights to use, copy, modify, merge,
> publish, distribute, and/or sell copies of the Software, and to permit
> persons to whom the Software is furnished to do so, subject to the
> following conditions:
>
> 1. The above copyright notice and this permission notice (which
> includes the disclaimer below) shall be included in all copies or
> substantial portions of the Software.
>
> 2. The name of a copyright holder shall not be used to endorse or
> promote products derived from the Software without specific prior
> written permission.
This so far is perfectly acceptable. :)
> 3. If User breaches any term of this license or commences an
> infringement action against any copyright holder then the User's
> license and all sublicenses that have been granted hereunder by User to
> other parties shall terminate.
But this clause is where we start running into issues.
The biggest issue here is that you're potentially taking away the
license of an innocent party. Imagine the following scenario. A
certain company X is a distributor of Linux software. They include your
software in their distribution. A few years later they aren't doing so
well and new management is brought in. This management believes that
your code infringes on some copyright they claim to own. They take you
to court. Now all the users who received your software from company X
have technically lost their license to use your software. At least this
is the way I read your license and taking into consideration your usage
of sublicense from your last license. This really isn't acceptable.
(Any similarites to real situations is purely coincidence :>).
Since your license no longer even mentions granting the right to
sublicense, you probably can simply ommit the phrase "and all
sublicenses that have been granted hereunder by User to other parties
shall terminate." IBM's license only revokes the rights of the person
taking the specific actions.
Also you're attaching the rights granted under the license to a not
taking copyright (or presumably patent) enforcement actions. This
won't be accepted. The community in general have not accepted
anti-litigation clauses that remove the entire license. The exception
to that has been situations like the IBM license where the revocation
only applied to the patent grant as I explained above.
Since you don't own the patents the way IBM deals with this isn't very
attractive to you. It's not much of a threat to take away a patent
license when you don't have a patent requiring licensing.
I would take and remove the wording about wording about an infringement
action. It's not getting you a whole lot anyway. It's quite possible
that the person who takes an action against you won't care about having
a license to your software. Your license can never prevent them from
taking the action anyway. At best all it can really do is attempt to
mitigate the potential damages they could claim. Which is where your
warranty disclaimer below would come in.
So your Section 3 would read:
3. If User breaches any term of this license then the User's license
granted hereunder shall terminate.
> THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS
> LICENSE. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER
> THIS DISCLAIMER. THE SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS "AS
> IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT
> NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
> PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. IN NO
> EVENT SHALL THE COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, OR ANY
> SPECIAL INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES WHATSOEVER
> RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF
> CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN
> CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE. THE USER
> ACKNOWLEDGES THAT NO ASSURANCES ARE PROVIDED BY THE COPYRIGHT HOLDERS
> THAT THE SOFTWARE DOES NOT INFRINGE THE PATENT OR OTHER INTELLECTUAL
> PROPERTY RIGHTS OF OTHER PARTIES. EACH COPYRIGHT HOLDER DISCLAIMS ANY
> LIABILITY TO THE USER FOR CLAIMS BROUGHT BY ANY PARTY BASED ON
> INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. AS A
> CONDITION TO EXERCISING THE RIGHTS GRANTED HEREUNDER, EACH USER HEREBY
> ASSUMES SOLE RESPONSIBILITY TO SECURE THE INTELLECTUAL PROPERTY RIGHTS
> NEEDED, IF ANY. THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT INTENDED
> FOR USE IN MISSION-CRITICAL SYSTEMS, SUCH AS THOSE USED IN THE
> OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION
> SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, DIRECT LIFE SUPPORT MACHINES, OR
> WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE OR PRODUCT COULD
> LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR
> ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). THE COPYRIGHT HOLDERS
> SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR
> HIGH RISK ACTIVITIES.
This disclaimer is fine and gets you essentially the same protection as
IBM's license gives them assuming that the software doesn't have any
applicable patents that they own. Your wording is very similar to IBM's
2c, but then this is pretty boiler plate language.
Making the change I suggested to 3 above would make your license
acceptable as far as I can see without really changing the protection
that you're receiving under it.
I hope this helps. FYI IANAL TINLA.
--
Ben Reser <ben@reser.org>
http://ben.reser.org
"Conscience is the inner voice which warns us somebody may be looking."
- H.L. Mencken
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