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Re: AT&T source code agreement



On Wed, Mar 22, 2000 at 01:52:39PM +0100, Henning Makholm wrote:
> > 1. The termination clause is there mainly to limit the damage to AT&T if
> > some 3rd party shows up and claims we've infringed on a patent we never
> > heard about and now we owe millions in damages.  It will be interesting
> > to see if other deep-pockets companies that rely on open source run into
> > similar problems.

Termination clauses of the sort commonly employed by commercial software
vendors are antithetical to the entire premise of free software.

Software licenses without them have been good enough for the University of
California, the Massachusetts Institute of Technology, and Digital
Equipment Corporation (now part of Compaq) for well over fifteen years.

However, you might consider the kind of "termination clause" that the GNU
General Public License affords:

  7. If, as a consequence of a court judgment or allegation of patent
infringement or for any other reason (not limited to patent issues),
conditions are imposed on you (whether by court order, agreement or
otherwise) that contradict the conditions of this License, they do not
excuse you from the conditions of this License.  If you cannot
distribute so as to satisfy simultaneously your obligations under this
License and any other pertinent obligations, then as a consequence you
may not distribute the Program at all.  For example, if a patent
license would not permit royalty-free redistribution of the Program by
all those who receive copies directly or indirectly through you, then
the only way you could satisfy both it and this License would be to
refrain entirely from distribution of the Program.

> > I am not sure the problem goes away for other licenses just because they
> > don't have termination clauses.

It may not; however, it is the patent holder's responsibility to pursue
infringers, and I have never heard of any legal precedent in which any
patent violator was ordered by a judge to indenture itself to the patent
holder so as to act as a proxy enforcement agent.

> > 2.  The "monitor our website" thing is the same.  We don't really have
> > any way of checking how often you do this, do we ?  I don't recall
> > saying at what intervals you need to do this.  But if something goes
> > wrong with the license for the same reason as above, we need to be
> > covered.

If the clause is easily determined to be unenforceable by even a layman's
facile analysis, then I doubt it will provide any meaningful protection
when subjected to the scrutiny of a gaggle of hostile intellectual property
attorneys.

A non-binding remark in the license pointing out that it is the licensee's
responsibility to stay abreast of patent lawsuits regarding the software in
question would work just as well, in my opinion, and not run afoul of the
Debian Free Software Guidelines or Open Source Definition.

> > 3. It is false that we require licensees to enforce the license on 3rd
> > parties to whom they transmit the code.  However they must transfer the
> > code in such a way that it is still licensed.  Otherwise they are
> > transmitting unlicensed = illegal copies. Since the license is
> > transmitted as a file somewhere in the code (you have no idea how long
> > it took to get this simple idea across) this is not any more
> > burdensome than having a README or INSTALL file in the code.

As far as I know, no free software license permits the excision of its
copyright notices or licensing terms, and no standard for free or open
source software requires that this be the case.

> > 4.  Contact us if you distribute patches - true, we do require the
> > sharing of source patches that are released to other 3rd parties.
> > The company saw this as the quid pro quo for sharing code.  To me
> > this is fair since there is not really any other model here of
> > profiting from the open source community which has um propelled
> > various individuals and startup companies.

"Not really any other model".  A bold conclusion to make for a business
philosophy that is hardly out of the cradle.  Again, this clause flatly
contradicts the spirit of free software.  Licensors will be held in esteem
and receive patches anyway if they cultivate a good relationship with the
community and their users; if not, then again, you have a clause that is
difficult, if not impossible to enforce in any but the most selective and
arbitrary fashion.

> > 5.  You must adhere to U.S. law including export regulations.  Basically
> > this applies to any license executed in the United States.  Our lawyers
> > just wanted to spell it out. We couldn't think of any particular reason
> > to deny them this pleasure.  It applies to all other licenses in the
> > United States as you must know.  Outside the U.S. who knows; I hate to
> > ask these questions of lawyers in case the speculation heads off in a bad
> > direction.  Never ask a question to which you don't know the answer etc.

I can think of a reason to deny them this pleasure.  Export regulations are
currently in a state of flux.  They changed in January and will likely
change again (they were avowedly of an ad-hoc nature and are up for review
next month, I believe).

I know that in the culture of a very large company this is hard to
believe, but corporations are not governments.  Persons subject to U.S. law
are going to be bound by it utterly irrespective of the terms of an AT&T
software license.

> > I am not very familiar with the debian open source guidelines so perhaps you
> > could please point me in the right direction.

<http://www.debian.org/social_contract#guidelines>

> > I can see where one might interpret sharing the patches as interfering
> > somehow with modifying the software.  Actually you didn't point out that
> > we require sharing the modified source as originalsource+patches which
> > seems more onerous to me.

It is.  We reserve the right not inform you about *all* of the problems
with your license in one fell swoop, although we will make an honest effort
to.  :)

> > Otherwise I think it's a pretty nice license for a corporation,
> > particularly in the sharing of copyrights and patents.  Just look for
> > stuff on patents in the Apple and IBM source licenses.
> > I rest my case :-)

Apple had to be fought tooth and nail to come up with a license that --
just barely -- met the Open Source Definition, and are a terribly mercurial
company with regards to the position they take vis a vis the free software
phenomenon.

IBM is terribly supportive of the free software community, and Linux
specifically, in an economic sense, but are not widely regarded as
admirable for their skills in authoring free software licenses.  (However,
they do sometimes use existing, tried-and-true free software licenses that
have, to date, caused them none of the problems you claim AT&T has to
fear.)

Anyway, here is a (non-exhaustive) list of companies and organizations that
have employed licenses that unambiguously meet the criteria of the Debian
Free Software Guidelines (and Open Source Definition, which is dervied from
the DFSG).

The Open Group
Digital Equipment Corporation
Hewlett-Packard Company
International Business Machines Corp.
Sun Microsystems, Inc.
Novell, Inc.
FUJITSU LIMITED
Hitachi
Adobe Systems Incorporated
Free Software Foundation, Inc. (okay, so that one's a no-brainer)
Network Computing Devices, Inc.
Silicon Graphics, Inc.
Solbourne Computer, Inc.
Metro Link Incorporated
Apollo Computer Inc.
Evans & Sutherland Computer Corporation
AGE Logic, Inc.
The XFree86 Project, Inc.
OMRON Corporation
New Mexico State University
GROUPE BULL
SciTech Software, Inc.
Bitstream, Inc.
Bigelow & Holmes
Tektronix, Inc.
Wyse Technology, Inc.
TOSHIBA Corp.
Sony Corporation
Ares Software Corp.
Fuji Xerox Co.,Ltd.
Oki Technosystems Laboratory, Inc.
Precision Insight, Inc.
NVIDIA, Corp.
Xi Graphics, Inc.
The Regents of the University of California
Netscape Communications Corporation
Prentice Hall
Concurrent Computer Corporation
SuSE, Inc.
Lexmark International, Inc.
Massachusetts Institute of Technology
Panacea Inc.
Cronyx Ltd.
Quarterdeck Office Systems
Y&Y, Inc.
Olivetti Research Limited
Frame Technology
Pipeline Associates, Inc.
Microsoft Corporation (!)
AT&T (yes, even you guys have done it before)
UNIX System Laboratories, Inc.
NCR Corporation
The Institute of Software, Academia Sinica
EWT Consulting
Cub Soft

I'll stop there.  For further research on the above, please consult the
following files:

X400src-1.tgz
X400src-2.tgz
X400src-3.tgz

They can be obtained at the sites listed in
<ftp://ftp.xfree86.org/pub/XFree86/MIRRORS>.

-- 
G. Branden Robinson            |
Debian GNU/Linux               |             If existence exists,
branden@ecn.purdue.edu         |             why create a creator?
roger.ecn.purdue.edu/~branden/ |

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