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Re: Debian Legal summary of the X-Oz License

On Mon, Mar 01, 2004 at 08:47:09PM +0000, MJ Ray wrote:
> On 2004-03-01 18:35:13 +0000 Ben Reser <ben@reser.org> wrote:
> >Did you read the license we're talking about?
> I was referring to 
> http://lists.debian.org/debian-legal/2004/debian-legal-200402/msg00154.html 
> at the time, so I'm a bit puzzled how I got confused at 1130. Excess 
> coffee, perhaps. What's your excuse for not following the debian list 
> code of conduct?

I didn't mean to flame you, if that's how you took it I'm sorry.

> That said, I was told at FOSDEM by someone who should know that the 
> current X-Oz licence was the same as the XFree86 1.1 licence modulo 
> the copyright holder and that was given as an argument for 1.1 being 
> used. I guess I'm not the only confused person.

I think everyone was under this assumption initially.  But Branden
realized the mistake and posted an email showing the differences:

> >However, I don't think that license is really any worse.
> If you are going to chastise me for going OT, please keep to the topic 
> yourself.

I don't consider the discussion of the XFree86 1.1 license here
offtopic.  So long as it's clear that you're talking about that license
and not the X-Oz license.  Significant portions of them are the same or
similar, so it makes sense in some clauses to deal with them together.
Clause 3 is a case where the language is not the same.

But if the language in the XFree86 1.1 license is acceptable then I
think the language in the X-Oz license has to be acceptable as well as
it is less restrictive.  That's what I was saying.

> >But being GPL-compatable has *NOTHING* to do with being DFSG compliant
> I didn't say that it did. Stop arguing against a point I didn't make.

Okay you didn't but I think a lot of the opposition to this license is
based on the problems with GPL-compatibility.  Other licenses have
similar issues to this one and they've been accepted.

> >Just about any use other than saying negative things about the 
> >software
> >can be considered to endorse or promote products.  So already what
> >you're allowed to use the marks to do is pretty widely restricted.
> Can you quote law or precedent for that, please? It seems 
> counter-intuitive, yet is the cornerstone of your argument.

I'm not going to look for law or precedent on this.  I'd have to dig
through 50 states' law and precedent to make a compelling case regarding
the United States, and that's still ignoring other countries.  

But this raises two questions:

1) Do you need the right to use the name of the copyright holder in
order to make free use of the software?

2) Do you need the right to use the name of the software in order to
make free use of the software?

My answer to those questions are:

1) Not outside of attribution of the copyright.
2) Yes, unless the software has been modified.

If you say yes to both of these questions without qualification then any
other license without permission to use the names would not be free.

The cornerstone of my argument in my opinion is that most other licenses
do not provide such a permission.  I don't think you have the rights
these licenses take away from you even if the clause was omitted.

> >4. The names "Apache" and "Apache Software Foundation" must not be 
> >used
> >to endorse or promote products derived from this software without 
> >prior
> >written permission. For written permission, please contact
> >apache@apache.org.
> >
> >Just about any use other than saying negative things about the 
> >software
> >can be considered to endorse or promote products.  So already what
> >you're allowed to use the marks to do is pretty widely restricted.
> The restriction only applies to derived works, or did you miss that? 
> In the X-Oz licence, it applies to the software itself.

Nope I didn't.  But because the name "Apache" is commonly used to refer
to the software I think that qualification is necessary.  If ASF was to
separate out the language for these two terms I think they could be
equally restrictive on the "Apache Software Foundation" mark as the
XFree86 1.1 and X-Oz licenses are.

> >Remember, Apache is the name of the software here, not just the name 
> >of
> >the producer.
> That is only true in one case and even then, its full name is "Apache 
> HTTP Server".

Yes but nobody commonly refers to it as this.

> >So what does the clause really prevent you from doing?  Using those 
> >two
> >marks without permission.  Neither of which you have a particularly 
> >good
> >reason to need to use anyway.  They aren't the name of the software.
> Does the clause prevent you from describing the origin of the 
> software, even unmodified, apart from the software itself?

No.  Provided you aren't using the name for the purpose of promoting the
sale, use or other dealings in this software.  Simply acknowledging the
source of the software doesn't seem to violate the clause.  Unless you
are trying to use good will attached to the names of the copyright owner
to gain good will for the product. 

Frankly, I think this clause is trying to define an endorsement.  It
probably would be better off using the BSD language.  But I don't think
there is anything non-free about the language.

> [...]
> >Clause 3 is simply asking for
> >acknowledgement, which denying as being DFSG compliant is ridiculous.
> Huh? Did you mean to agree with the objectors?

Nope, nor do I think I did.  Requiring acknowledgement seems perfectly
acceptable under the DFSG in my opinion.

> >Clause 4 is about asking you not to use their name without permission.
> It's compelling, not asking. I doubt any would be upset about a 
> request.

You're already compelled under law anyway.  Nor do you need to use these
names in order to make free use of the software.

> >Let's assume that Clause 4 doesn't even exist in the license now.  Can
> >the author still sue you into oblivion for using his trademarks?  You
> >betcha.
> I suspect the problem is just that 4 makes it overt that we are faced 
> with a hostile trademark use. In other cases, we probably would have 
> to be faced with the enforced trademark before ruling it non-free.

No more so than any license which remains silent on the issue.

Ben Reser <ben@reser.org>

"Conscience is the inner voice which warns us somebody may be looking."
- H.L. Mencken

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