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Re: Debian Legal summary of the X-Oz License

On Tue, Mar 02, 2004 at 08:15:21PM -0500, Branden Robinson wrote:
> Well, no, I didn't know what you meant, actually; I try to make as few
> assumptions as possible, especially when it comes to the opinions
> people who have only recently started contributing to the debian-legal
> list.

I meant use as in the things Debian wants users to be able to do.  Copy,
modify, redistribute, etc...  Typing out the list can get quite tedious.

> > > Any attempt by a copyright license to prohibit protected expression is
> > > probably unenforceable (and unconstitutional if prosecuted as criminal
> > > copyright infringement by the U.S. government).  Since the Debian
> > > Project does not have the resources to pursue court battles, we tend to
> > > regard all clauses of a copyright license as enforceable, especially
> > > since not all countries have equally liberal laws regarding free
> > > expression, and Debian produces an OS with a worldwide audience.
> > 
> > I see this statement as utterly irrelevent.
> How so?  Do you not permit principles of free expression to inform your
> interpretation of what is and is not legitimate in a free software
> license?

I'm just reading this license in a far less restrictive way.

> > I have to wonder why you're questioning such language that has been
> > long used and included in Debian all of a sudden.
> Because A) that's how we find out how the copyright holder interprets
> his/her/its license (see above), and B) incorporation of old language in
> a new license is just as worthy of study as new language in a new
> license.
> *Something*, after all, motivates people to draft new licenses.  If it
> is dissatisfaction with existing licenses, it's worth attempting to
> discern what the perceived deficiencies in the existing licenses are.

Which brings me back to why nobody, until I did so yesterday, contacted
the copyright holder.

> > To my knowledge, this language has never been interpreted to behave
> > this way, nor attempted to be used to restrict anything like this.
> It does not follow that a person or organization which goes to the
> trouble of creating a new license is going to hew precisely to
> pre-existing interpretations of license language.  Particularly not if
> different copyright holders interpret the same language differently, as
> occasionally happens.

Fair enough.

> > > I think any attempt to use copyright licenses to enforce common-law
> > > trademark rights should be regarded with suspicioun, since common-law
> > > trademark right vest regardless of any copyright license.
> > 
> > In relation to how this license it depends on how you look at this
> > statement.  If you look at it as taking away rights then you have a
> > point.  But I don't look at the language that way.
> I must confess I don't see why.
> Here's where the permissions are granted:
>   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 remainder of the license, up to the warranty disclaimer, consists
> of restrictions on the permissions granted above.
> > I look as it giving you trademark rights.
> I see.  Where in the above language are trademark rights granted?

It's not in this language that you quoted.  I was referring to Clause 4.

> > It specifices you have the rights to use the marks to comply with the
> > license but not otherwise.
> A mandate is not a right.  The license mandates the use of a the
> trademark is one narrow case and forbids its use in, as far as I can
> tell, all other communications.

I think it's just a poorly constructed use of something like this:

You may use the name of X-Oz Technologies to comply with the terms of
this notice, all other trademark rights are reserved without prior
written authorization.

Granted it doesn't say that.  But that's how I'm reading it.

> As I said in my mail to <mgr@x-oz.com>:
>   >        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.
>   We have some concerns about this clause as well.
>   6) What does "or otherwise" mean?  It would seem to include all forms of
>   communication other than advertising (examples include magazine reviews,
>   blog postings, and so forth).
>   7) What does "or other dealings" mean?  It would seem to include all
>   activities that can be promoted other than sale or use (examples include
>   charitable donations of copies of the software, or the "cooking" of a
>   CD-ROM with a copy of the software encoded on it in a microwave oven).

Because the language is so unclear, I'm going with the most logical
interpretation I can come up with.  
> > When viewed in the context that this is a copyright license, not a
> > contract or trademark licensing agreement of some sort, I don't think
> > this is inconsistent with the meaning.
> You confuse me.  You "look as it giving you trademark rights", but it's
> not a "trademark licensing agreement of some sort"?
> What is the essential characteristic of a trademark licensing agreement
> if it doesn't grant permission to exercise privileges that are typically
> reserved to the trademark owner?

Okay I'm using confusing terminology.  You're right.  It's not giving
you any right.  I'm thinking of Clause 4 more of as an covenant not to
sue you for trademark infringement simply by complying with the license.

> > I think the intent here is to permit you to use the name as necessary
> > and reserve all the other rights that are usually reserved to the
> > trademark owner.
> Okay.  If the copyright holder shares your opinion, it shouldn't be
> difficult to get a clear and unambiguous statement to this effect.

I have one sitting in my email box that I think meets that.  But I think
it's better if they give it to you directly.  So I'm not going to
forward it here unless they flat out neglect to do it.  Given that
they're posting now, I don't know why they haven't answered your
questions yet.  Maybe they're expecting me to forward the message.

> > But this is a long standing clause.
> So what?  It was freshly incorporated into a new license in or about
> October 2003.
> When *is* the right time to seek correction of poorly-worded license
> clauses?

I'd always expected that we were being more proactive about considering
licenses than reactive.  It seems there's more of the later than the
former.  That's not to say the latter isn't valueable.  But once license
clauses are in common use, people are going to propogate them to other

> I don't recall that the X-Oz license was ever submitted to the FLOSS
> community for public comment prior to its adoption.

I think they didn't think it was necessary because they thought they
were using well accepted language.  

Perhaps we need a list of licenses in use, their license clauses, and
what problems if any may exist with the clauses.  If we had something
like that we could point people to who were considering drafting
licenses.  They could look for similar (or identical) language to what
they're intending to use and not repeat the same mistakes.

> > > Furthermore, it is not acceptable for a copyright license to place
> > > restrictions on software interfaces.  E.g., a Debian package should
> > > be able to be named "apache", or declare that it "Provides: apache",
> > > to satisfy the requirements of other packages that require an
> > > Apache-compatible HTTP server.
> > 
> > I don't disagree, but then I think the Apache's trademark/endorsement
> > clause is far worse than the X-Oz license.
> The purpose of this thread is discussion of the X-Oz license.  If you
> have concerns about one or more of the versions of the Apache Software
> License, please start a new thread on debian-legal so that we can
> discuss it on its own merits.

Maybe after we deal with this.

> I admit that I cannot understand your view of the license.  Somehow it
> grants trademark "rights" without being a trademark "license"?
> I think it neither grants any trademark rights, nor constitutes a
> trademark license.  It imposes an obligation on the recipient to include
> certain language (which in the general case does not have to include a
> trademark -- the term "trademark" does not even appear in the license,
> which is instructive), not any sort of discretion.
> I don't think of my rent payments under a lease agreement as a "right to
> pay rent" -- I think of it as an "obligation to pay rent".

Hopefully, I've made some effort to explain myself better.  I can see
your view.  I'm just reconciling illogical language to what I think they
really mean.  It'd be much better in my opinion if the clause was
replaced with something clearer.

> > > > I don't think you have the rights these licenses take away from
> > > > you even if the clause was omitted.
> > > 
> > > Then why saddle the license with irrelevancies?
> > 
> > To make it clear that they can't be stopped from complying with the
> > license under trademark law.
> Huh?  There are only two possibilties here: either a copyright holder is
> authorized to oblige others to use a trademark, or not.
> How is trademark law going to "stop" a person from using a trademark as
> commanded by the mark owner?
> If a copyright holder attempts to use a copyright license to mandate the
> usage of a trademark without the authorization of the trademark owner,
> then surely the license is defective.

[ example that I don't wish to propogate removed ]

Well I hope X-Oz has the rights to their own name.  

> Debian has a responsibility to the health of the FLOSS community; this
> is incompatible with rubberstamping licenses as DFSG-free without giving
> them careful thought.

I was working under the presumption that this had already happened for
the licenses that are applied to Apache and XFree86 (prior to 4.4).

> > > > > 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.
> > > 
> > > Does that mean nobody commonly violates the corresponding clause of
> > > the license?  Or that everyone frequently does?
> > 
> > The latter.  I think the Apache 1.1 license as worded is very
> > difficult to comply with if you modify the software at all.
> Okay.  What conclusions should we draw from this?

That Apache's 1.1 license sucks.

> > > What are "other dealings"?
> > 
> > I'd guess this was included to deal with inclusion in other pieces of
> > software where you aren't selling it and aren't necessarily encouraging
> > the use of the specific software that the license applies to but your
> > derivative.
> Since you're having to guess, wouldn't it be smart for us to contact the
> copyright holder and find out what *they* intend it to mean?

Did that yesterday. :)

> > > > 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.
> > > 
> > > Language matters more than intent for any license that is used by anyone
> > > other than the person who wrote it.
> > 
> > 
> > 
> Thank you for that post-structuralist rebuttal to my point.  :)

This is what happens when I reply to things out of order.  

I see your point.  But I'd much rather work off what the copyright
holder believes than someone elses interpretation.  I don't think the
copyright holder would bother to release the code if they meant the
license the broad way you're interpreting it.

But remember the license was pretty much dismissed and argument was
summarized without contacting the author.

> > > Please ground your opinion on the language of the DFSG, then.
> > 
> > I've already done that at length, but I'll repeat:
> > 
> > 9) Doesn't contanimnate other software.  Debian already provides
> > acknowledgement in every package.  This is the usual location and form
> > of the acknowledgement.  I really disagree with your analysis of the
> > scope of this clause.  
> There's the crux.  I have argued that, depending on what is meant, it
> fails DFSG 9.  You say it doesn't -- do you hold that position
> regardless of what clarification as to the meaning may be forthcoming
> from X-Oz Technologies, Inc.?

If they came back and said your interpretation is correct I'd agree with
you it fails the DFSG 9.  In fact I dobut I'd want to use any software
they write no matter the license.

> In other words, does even the broadest, most prohibitive conceivable
> interpretation of X-Oz clause 4 pass DFSG 9 in your view?

No it wouldn't.  

> > The only way I see it failing is if you really believe that it effects
> > other software, documentation, etc...  Which I don't think this
> > license does.  Especially not if you use the Alternative.
> Use of the alternative (or not) doesn't really impact clause 4.

I thought the issue with 3 was the DFSG 9 issue.  But I see how you're
saying 4 is a DFSG 9 issue too.

> Is it your contention that a license can, as part of its terms, prohibit
> the licensee from ever uttering, in speech or print, the word "money",
> and still be a Free Software license?

No.  See my explanation above of what I meant by the term "use"  

I'd much rather spend my time doing something else than jousting with
you about what we think it means.  If X-Oz doesn't post a more detailed
response, I'll post what they sent me in private email last night

If you want to discussing licensing issues in general outside of the
X-Oz license I'd be happy to discuss them with you off-list.  But I fear
we're straying from the topic and starting to clutter the list.

Ben Reser <ben@reser.org>

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

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