Re: [vorlon@netexpress.net: Re: Bug#181969: [mdadams@ece.uvic.ca: Re: JasPer licensing wrt Debian Linux]]
On Tue, Dec 16, 2003 at 11:37:28AM -0800, Michael Adams wrote:
> I have received a number of rather unkind e-mail from some members of
> the open-source community. That is, a number of people have been very
> critical of me for the compliant-usage clause in the JasPer license.
> In this regard, I wish that people would make a genuine attempt to
> understand the issues involved before they attack me for being an
> unfair/unkind person.
I can say I have a rather lengthy email sitting in my outbox on the
subject. Though I certainly wouldn't characterize it as unkind.
Unfortunately, I never got around to finishing it and sending it off.
My hope was that the open source community (Debian/SPI, OSI, et al)
could work together to try and find a suitable solution to this issue.
As a member of the ayttm project I'd really just like to see this issue
resolved. We need a JPEG2000 implementation in order to interoperate
with Yahoo's webcam feature. While we have a functionality implemented
against your library, both Debian and Mandrake do not ship it enabled
due to their inability to ship your library.
> As a result, the terms of the JasPer license cannot be dictated by me alone.
> The license and any revisions must be made with the approval of all of
> the above parties. Consequently, I was only able to provide input to
> the license drafting process, but I could not dictate the terms of the
> license myself.
I would hope that this is obvious to everyone involved already.
> Second, and more importantly, there is a critical legal issue involved
> here. In fact, it is for this reason that all of the JasPer
> Contributors agreed that the compliant-usage clause was necessary. The
> troublesome issue is this: The JasPer Contributors might be held
> liable for the patent-infringing use of the JasPer software by
> *others*. This is a very serious concern. This is, in fact, the
> primary reason why the license imposes the compliant-usage restriction.
> That is, this clause in the license serves to protect the JasPer
> Contributors (e.g., from lawsuits claiming contributory infringement or
> something similar).
Perhaps, there is a compromise that we can make between your license and
our standards.
For instance Clause 7 of the GPL specifically covers patents and
generally covers any case where the distribution of the software may be
illegal or prohibited by some other agreement the distributor is bound
to.
As I understand it (though I've been utterly unable to verify this for
sure) the various patent holders have agreed to grant a royalty-free
license to anyone implementing the JPEG2000 standard. I've seen various
mentions to this effect on the web and your license certainly seems to
imply this.
If this was the case then the GPL clause mentioned above would cover
you. Users who modified the library to not conform with the JPEG2000
standard would not be able to distribute the software as their license
to distribute the software with those changes would be voided if they
were in a jurisdiction that the patent was applicable.
While this wouldn't completely stop any such infringing use, it
certainly would stop any likely ability anyone would have for blaming
you for that. Users who individually modified their copies to not
conform would be individually be liable for their actions. If they did
chase you down for it then the damages (and the value in bothering to
try and sue you for it) would be pretty minimal. However, I'm inclined
to believe that the risk of such a change happening is pretty minimal
anyway.
You could also most definitely place a clarification in the license file
as well explaining that your view is that modifications of the software
that changed the software to be non-compliant with the JPEG2000 standard
would violate the patent clause. This wouldn't be very different from
what you have now. But it would push the restrictions out of your
license and onto the law of the jurisdiction of the distributor.
Something that we can't hold you or your license responsible for.
As a result it would certainly be possible to add such a clause while
removing the problematic patent clauses from your license and meet the
DFSG as far as I can see. I also think it would meet your patent
protection concerns.
I'm unclear on if this would leave you in non-free still. The
discussion on the list has been in the past to not worry about patents
that aren't actively being enforced. As far as I'm aware nobody has
been threatened or sued over the relevant patents for a JPEG2000
implementation so I think Debian wouldn't worry about them.
I should note that I'm not a lawyer, so if someone else on this list who
is a lawyer could back this up, it would be helpful. Especially if this
someone was in Canada. Nor can I speak for the Debian project. I'm
speaking for myself and my views.
However, we can't resolve this issue for you. We need your active
participation in working with the other Copyright holder to find a
solution that gives you the protection that you desire and gives us
license terms that we consider free/libre.
--
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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