On Tue, Feb 17, 2004 at 12:22:39AM -0500, David Nusinow wrote:
> All the source code and source patches that X-Oz Technologies provides
> in our download section are licensed under the following terms, which is
> a derivation of the XFree86™ license and the Apache License, version
> 1.1:
>
> By downloading, copying or using this software you have agreed to this
> license.
Copyright law doesn't work that way.
> Copyright © 2003, 2004 X-Oz Technologies. All Rights Reserved.
>
> Permission is hereby granted, free of charge, to any person
> obtaining a copy of this software and associated documentation
> files (the "Software"), to deal in the Software without
> restriction, including without limitation the rights to use,
> copy, modify, merge, publish, distribute, sublicense, and/or
> sell copies of the Software, and to permit persons to whom the
> Software is furnished to do so, subject to the following
> conditions:
The above is copied from the MIT/X11 license and is DFSG-free.
> 1. Redistributions of source code must retain the above copyright
> notice, this list of conditions, and the following disclaimer.
> 2. Redistributions in binary form must reproduce the above
> copyright notice, this list of conditions and the following
> disclaimer in the documentation and/or other materials
> provided with the distribution.
The above clauses are copied from the BSD license.
> 3. The end-user documentation included with the redistribution, if
> any, must include the following acknowledgment:
>
> "This product includes software developed by X-Oz Technologies
> (http://www.x-oz.com/)."
>
> Alternately, this acknowledgment may appear in the software itself,
> if and wherever such third-party acknowledgments normally appear.
(As an aside, the above clause is not GPL-compatible, as has been
extensively covered in recent weeks.)
I submit that the above clause may fail DFSG 9, at least if we interpret
DFSG 9 as broadly as I think it is intended.
For review, here's DFSG 9:
License Must Not Contaminate Other Software
The license must not place restrictions on other software that
is distributed along with the licensed software. For example,
the license must not insist that all other programs distributed
on the same medium must be free software.
I argue that a license must not contaminate other kinds of works that
are *not* software, either. For instance, the following is not
DFSG-free:
> 3. Christmas cards that you send to your mother, if
> any, must include the following acknowledgment:
>
> "This product includes software developed by X-Oz Technologies
> (http://www.x-oz.com/)."
Let us now wrestle with the alternative that is provided.
> Alternately, this acknowledgment may appear in the software itself,
> if and wherever such third-party acknowledgments normally appear.
I am not sure what to make of this. Does the occurrence of the text
that occurs within the license statement itself satisfy this prong of
the obligation?
If so, perhaps the DFSG 9 problem evaporates. This would still be a
license I would caution people against using, as I would against any
license that is sufficiently complex that only some "branches" within it
are DFSG-free.
However, if this is true, then it is not clear what this license
accomplishes that it wouldn't if its third-clause were completely
omitted.
Theo de Raadt made a similar observation.
I've tried to negotiate with David Dawes, and show him that his new
license is not acceptable, and he has been hostile and it has gone
nowhere. He keeps insisting that his license is a standard BSD
licenses, yet, he won't use the same words that Berkeley used; if his
words were intended to be compatible to the Berkeley spirit then he
would be happy to use the same words; but he is not, and insists on
different words which a lot of the community has trouble with.[1]
(David Dawes is, as far as I know, the founder sole employee of X-Oz
Technologies, Inc, and the author of the X-Oz license, which he has since
re-introduced as the new XFree86 license.)
> 4. Except as contained in this notice, the name of X-Oz Technologies
> shall not be used in advertising or otherwise to promote the sale,
> use or other dealings in this Software without prior written
> authorization from X-Oz Technologies.
Note how the above clause differs from the traditional BSD wording:
3. Neither the name of the University nor the names of its
contributors may be used to endorse or promote products
derived from this software without specific prior written
permission.
First, we should note that this traditional BSD clause is not necessary,
at least under U.S. law. Possession of a copyrighted work does not
automatically grant the possessor a right to use the name(s) or
likeness(es) of the copyright holder(s). The liberality of the BSD
software license, or any other copyright license, simply *cannot*
grant such a permission. Any such grant of license to a copyright
holder's name or likeness would have to be spelled out.
Placing such a clause in a copyright license is gratuitous and may be
unenforceable, as copyright law has nothing to do with this sort of
thing. False usage of a person's name or likeness in promotional or
endorsement efforts is a civil tort in the U.S., a matter that is
handled by the states. Copyright law is federal. It is not clear to me
that any federal court would entertain a copyright infringement suit on
the grounds of the BSD license's non-endorsement clause, when the
copyright holder can easily seek relief for the same grievance in state
court under well-established tort theory.
I think the NetBSD Foundation is cognizant of the same thing, which is
why they use a 2-clause version of the BSD license, omitting both the
"advertising clause" and the above "non-endorsement clause".
Returning to the X-Oz license, we see that it is worded much more
strongly. Not only are promotion and endorsement forbidden, but even
the "use" of X-Oz Technologies name in advertising is forbidden. Given
the broadness of "the name of X-Oz Technologies shall not be used...to
promote the...use or other dealings in this Software without prior
written authorization", it seems to forbid publishing a magazine review
of works so covered without prior written permission -- at least if one
wants to name the copyright holder of the work one is using.
Such a broad restriction is probably not legal, and certainly violative
of the principles of free speech which inform and underlie our concept
of Free Software.
Consequently, because it contaminates works of a wholly independent
nature, this clause fails DFSG 9, and renders the license non-DFSG-free
even if clause 3 doesn't.
> THIS SOFTWARE IS PROVIDED ``AS IS'' AND ANY EXPRESSED OR IMPLIED
> WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES
> OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED.
> IN NO EVENT SHALL X-OZ TECHNOLOGIES OR ITS CONTRIBUTORS BE LIABLE FOR
> ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL
> DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS
> OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION)
> HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT,
> STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING
> IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE
> POSSIBILITY OF SUCH DAMAGE.
This warranty disclaimer appears to match the BSD warranty disclaimer,
and does not appear to be objectionable.
My opinion: this license fails DFSG 9 in both clauses 3 and 4,
overreaches in terms of the conditions under which it binds the licensee
("By downloading, copying or using this software you have agreed to this
license." -- of these, copyright law regulates only the act of copying).
This license is not DFSG-free and no software covered under its terms
should be allowed into Debian main.
[1] http://marc.theaimsgroup.com/?l=openbsd-misc&m=107696705911864&w=2
--
G. Branden Robinson | If you don't think for yourself,
Debian GNU/Linux | others will think for you -- to
branden@debian.org | their advantage.
http://people.debian.org/~branden/ | -- Harold Gordon
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