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Re: PBS License

Here's IMHO the relevant issues in the UCITA:

Section 108: a license may be shown as agreed to if a party is shown to
have made use of information or access that could have been available if
the license was agreed on.  This means that the clickwrap is given
statutory standing, as if this was news.

Restated in Section 210, with the added caveat of no more than $5K of
value transferred...

Section 307 gets hairy: SECTION E.

   (e) Neither party is entitled to receive copies of source code,
   schematics, master copy, design material, or other information used by
   the other party in creating, developing, or implementing the

[section g later allows that a license may override this]

Short of express wording giving a grant of the right to use the source
code, a UCITA license fails DFSG 2 (OpenPBS grants it, in the preamble).
Of course, any license that fails to treat source code is often held to be
in violation of DFSG 2, so this is no added burden, just a removal of the
benefit of the doubt in corner cases.

Section 308 grants a DFSG free license:

   (B) the license expressly grants the right to incorporate or use the
   licensed information or informational rights with information or
   informational rights from other sources in a combined work for public
   distribution or public performance.

A perpetual license, subject to breach

Please note that if the source code is given with a program, as provided
for above, and section B is not toggled, the license is NOT perpetual: it
is time limited to a "reasonable" time, and may be revoked with
"seasonable" notice.  Non-free may very well be nondistributable with a
UCITA choice of law.

This Source code/no section 308(B) setup is precisely the case in the
OpenPBS license.  Veridian may very well revoke the license with
"seasonable" notice.  Seasonable is not really defined in section 101
other than as a reasonable amount of time.  This is more of a caution than
a real deal breaker though: the DFSG has no mechanism for transience in
licenses (if the founding docs argument ever gets resolved in favor of
allowing modification, this is where I'd suggest modifying the DFSG: make
provision for disallowing most time-limited grants).

Section 502 implies that title to a copy vests only on a sale or as
provided for in the license.  The "comment" section goes to great lengths
to push the idea that a lack of title does not mean a lack of possession
or control, but the plain fact is that under UCITA, you very well may not
have clear title to any software on your computer if you're VRMS clean.
This also doesn't break the DFSG, but is still chilling.

Now the title thing comes into play:

If a source code with non-308(B) license is ever terminated, the title of
the copy never vested with the licensee, so as per section 618, the copy
must be held for delivery or disposed of as required by licensor.  Again
the term "reasonable time" flies around.

All in all, The only time that UCITA has a direct effect on the DFSG
freeness of a program is when it's already non-free.  When DFSG 2 is
passed, but there's no explicit DFSG 7 wording, the license is time
limited and very much at the whim of the licensor, so it very well may be
in Debian's best interest to increase the scrutiny on those cases, but
there is no real wording within the DFSG to deal with transitory licenses.
The transitory nature of the DFSG 2-clean-and-no-DFSG 7-wording licenses
also has the tertiary effect of allowing an information owner to tell
every Debian user to remove a piece of software or face civil penalties
within a release cycle (unless, of course, the release cycles get much
longer, in which case the copyright would expire before the next release :).

Again, the URL is http://www.law.upenn.edu/bll/ulc/ucita/ucitaFinal00.htm
for those of you playing along at home....

On Tue, 17 Jul 2001, John Galt wrote:

>On Tue, 17 Jul 2001, Raul Miller wrote:
>>On Tue, Jul 17, 2001 at 09:28:04PM -0600, John Galt wrote:
>>> It seems that the PBS license has the choice of law clause for
>>> Virginia, a UCTIA state. In the past, this was enough to make a
>>> license questionable. Is it enough reason to make it non-free on it's
>>> own? Remember, the choice of law thing actually makes a weird sort of
>>> sense, as it IS a click-wrap license, and UCTIA gives a click-wrap the
>>> force of law.
>>I think here we should show that there's some specific problem with
>>UCTIA and the OpenPBS license -- I don't think it's fair to reject the
>>software because there might be a problem, but we're too ignorant to
>>know whether one actually exists.
>You're right, but this is also precedent setting: the first time that a
>choice of law of a state where UCITA is in effect (it took effect 7/1) has
>been used in an otherwise free license that was submitted as a candidate
>to d-l.  This may take some time to work out.  The clause itself is
>innocuous, but the undercurrrent of UCITA may very well change relatively
>straightforward meanings within the license, and the PBS license is
>definitely not straightforward, as we've been becoming most painfully
>aware of as of late.
>For reference, I'll be using
>It seems kind of weird using UPenn's law site, but that's where
>ucitaonline sends you...
>STAY TUNED :)  (I always wanted to say that...)

The early worm gets the bird.

Who is John Galt?  galt@inconnu.isu.edu, that's who!

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