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Re: Export clauses in XFree86 licensing

On Wed, Sep 17, 2003 at 11:55:23AM -0500, Branden Robinson wrote:
> On Tue, Sep 16, 2003 at 10:19:54PM +0200, Henning Makholm wrote:
> > 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.

This fails the Chinese Dissident test. It discriminates against those
that are not subject to United States law. It does not allow for
disclaiming of warranty. It imposes a burden on the recipient to ensure
that he or she does not infringe a third party's rights.

Fails DFSG 5.

> > 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 discriminates against those who do not have internet access or for
whom internet access is prohibitively expensive. This also lends
credence to claims which may be frivolous (can we say SCO?). It
discriminates against distributors whose target audience doesn't know or
care about any such "new knowledge", such as Debian. How would Debian
contact everyone that downloaded this software? This imposes an
unreasonable burden on users.

Fails DFSG 5 and 6.

> > 
> > 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.

This fails the Desert Island test. This imposes a burden on users to do
SGI's work for them, which users should not have to do.

Fails DFSG 5.


Brian M. Carlson <sandals@crustytoothpaste.ath.cx> 0x560553e7
"Let us think the unthinkable, let us do the undoable. Let us prepare
 to grapple with the ineffable itself, and see if we may not eff it
 after all." --Douglas Adams

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