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Re: Export clauses in XFree86 licensing

"Joe Moore" <joemoore@iegrec.org> writes:

> 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.

On the contrary, it discriminates against law-breakers.  For example,
if Belgium, which claims universal sovereignty for its courts, passes
a law making it illegal to be named "Branden", they could collude with
the copyright holder to sue someone.  Under the US DMCA, US companies
would be obliged to disclose the identity of otherwise anonymous

In general, "Compliance with Laws" clauses violate the Chinese
Dissident test.  They also, given the overlapping sets of laws which
claim global application -- the US, EU, Principality of Sealand,
etc. -- typically render the software undistributable by anyone.

Is it possible to get clarification from the copyright holder about
this?  It's a typical clause inserted by lawyers who fear accusations
of contributing to crime, and clearer heads are often willing to
remove it.

>>> 8. Claims of Infringement. If Recipient at any time has knowledge of
>>> any one or more third party claims that reproduction,
>>> modification, use, distribution, import or sale of Subject
>>> Software (including particular functionality or code incorporated
>>> in Subject Software) infringes the third party's intellectual
>>> 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
>>> Sections 2 and 3, above, and in the text of any related
>>> documentation, license agreement or collateral in which Recipient
>>> describes end user's rights relating 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 Software 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.

Not quite.  This doesn't kick in on redistribution.  It applies to all
recipients.  Every user would have to put up such a web page in the
following scenario:

> 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.
>>> 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.)

It imposes a duty on all recipients of the software, which is enough
to make it non-free.  Imagine having to monitor all news of lawsuits
which comes to you for relevance to one or another "free" software


> These licenses are not GPL-compatible (which might open another can of worms)
> --Joe

Brian T. Sniffen                                        bts@alum.mit.edu

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