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Re: JasPer License Issues: Some Potentially Good News

On Thu, Jan 29, 2004 at 06:50:32PM -0800, Michael Adams wrote:
> I have some potentially good news.  Image Power seems to be agreeable
> to revising the JasPer software license to address the concerns raised
> by you and other members of the open-source community.  I have appended
> the first preliminary draft of the new license to this email for your
> feedback.  I would very much appreciate your comments, as it would be a
> waste to go through the trouble to change the license for you folks if
> the result will not meet your needs.

Well, it's *better*, but...

> BTW, the new license was largely copied from the open-source-certified
> X11 license.  Image Power has added condition 3 and I wonder if this is
> alright.  The IBM Public License (certified by the Open Source
> Initiative) also seems to have a similar type of clause.  So, this
> appears not to go against the spirit of open source.

We're "free software", not "open source". We don't always agree with OSI.

But that's irrelevant. Clause 3 is nothing like the comparable clause
in the IBM Public License, and is entirely unacceptable.

> 3.  If User breaches any term of this license or commences an
> infringement action against any copyright holder then the User's
> license and all sublicenses that have been granted hereunder by User to
> other parties shall terminate.

The "breach of license" stuff is harmless, I think (and a no-op,
because that's implicit in the nature of licenses).

The part where it says that commencing any legal action against any
copyright holder terminates the license is no good. You are presumably
comparing it to the patent license termination clause in the IBM
Public License, but that's not the same at all.

The IBM Public License says this:

If Recipient institutes patent litigation against a Contributor with
respect to a patent applicable to software (including a cross-claim or
counterclaim in a lawsuit), then any patent licenses granted by that
Contributor to such Recipient under this Agreement shall terminate as
of the date such litigation is filed. In addition, if Recipient
institutes patent litigation against any entity (including a
cross-claim or counterclaim in a lawsuit) alleging that the Program
itself (excluding combinations of the Program with other software or
hardware) infringes such Recipient's patent(s), then such Recipient's
rights granted under Section 2(b) shall terminate as of the date such
litigation is filed.

This says, approximately, that if you sue somebody for *patent*
infringement then your *patent* license is revoked (section 2(b) is a
patent license for the covered work). Your copyright license is
unaffected. In addition, there are usually no applicable patents[0],
so the clauses are no-ops anyway and therefore harmless.

The copyright license itself is unaffected by any patent lawsuits you
may care to bring.

Software must be freely distributed, not rented in exchange for a
promise not to file lawsuits. Revocation clauses which take the form
"If you bring a lawsuit against us, you may no longer use our
software" are not acceptable. The IBM Public License is usually
acceptable because it usually doesn't mean that. The proposed JasPer
license does mean that, and so is no good.

[I don't believe we have ever decided what to do about the IBM Public
License if we should find a case where the patent revocation clause is
a serious problem, but it is likely that we would reject the offending
piece of software. Hard to say though; we'd need to consider the
specific case]

[0] It is IBM policy to carefully check everything they release under
    this license to see what, if any, patents of theirs it infringes;
    I can't remember their policy on when they'll permit something to
    be released if there are applicable patents, but it's not often.

  .''`.  ** Debian GNU/Linux ** | Andrew Suffield
 : :' :  http://www.debian.org/ |
 `. `'                          |
   `-             -><-          |

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