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Re: Debian Legal summary of the X-Oz License

On Tue, Mar 02, 2004 at 07:28:38PM -0800, Ben Reser wrote:
> 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.

I have to concur with MJ Ray that it's worth it to go to the trouble of
typing it out.  Vi and Emacs (and compatible) editors have abbreviation
mechanism you can use to simplify this, and reduce the amount of keying
labor required.

> > > 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 concur with Jeremy Hankins's critique of this approach.

> > *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.

We rely on volunteers.  You appear to have been the first volunteer for
this particular task.  I sincerely thank you for doing so.

> > > 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.

Let's review the 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

          Alternately, this acknowledgment may appear in the software itself,
          if and wherever such third-party acknowledgments normally appear.
       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.

I'm not sure I'm willing to accept as a "right" language along the lines
of "That which is not mandatory is forbidden."  Would we say someone has
the "right" to vote if his government tells him, "Citizen!  You shall
report to your precinct office and cast your vote for Benevolent
Dictator on 9 November 2004 between 8am and 5pm local time!  Failure to
do so will result in imprisonment!  Any attempt to vote in any other
election at any time is forbidden, and will result in imprisonment!"?

> > 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.

If you're right, it should not be difficult to get X-Oz to rewrite this
clause thus, or at the very least make a public statement that your
statement is identical in meaning to theirs, as they interpret their

> Because the language is so unclear, I'm going with the most logical
> interpretation I can come up with.  

Again, I concur with Jeremy Hankins's rebuttal to this.

> > > 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.
> > 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'm not quite sure it qualifies as a "covenant", but I do think it would
be a pretty persuasive defense to a complaint of trademark infringement
by X-Oz Technologies, Inc. against a licensee of a work using this
copyright license.

But Debian, I think, would prefer that licenses were sufficiently clear
that we don't have to use their language as defenses in court.

Many Debian developers and users are college students with extremely
limited financial resources.  Even hiring a lawyer to write a "buzz off,
you and I both know my client had permission to use the name of your
company as specified in the license you extended to him" letter, is
beyond the means of many of our contributors and users.

> > > 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.

I will just say that you should spend some time reading the archives of
the XFree86 Forum list since January, and judge for yourself how
point-blank questions about the meaning of the license are handled.

> Maybe they're expecting me to forward the message.

I couldn't say.

> I'd always expected that we were being more proactive about considering
> licenses than reactive.

We don't have the resources to be anything but reactive, unfortunately.
There was some talk last year about the Free Software Foundation funding
a clearing house of some sorts to perform copyright/license audits of
major Free Software works.  This is the sort of thing that requires
multiple full-time employees.  (That's my opinion, having tried my hand
at this sort of thing myself.)  Unfortunately, I haven't heard any
follow-up on this in quite some time.

> 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 licenses.

I agree.  The best we can do for now is simply to scrutinize them as
best we can, when we can.

> > 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.  

...which is why it's good to solicit public commentary first.
Assumptions can be wrong.

> 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.

This sounds like a valuable resource.  Is it something you'd like to
work on?

> 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 agree with your conclusion.  I disagree with your advocacy of
stretching a license like elastic until it looks the way we think it
should look.  I can understand why you're doing it, but I think it is
too risky.

> > > > > 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.

In that case, why is clause 4 necessary?  The obligation to use that
name is quite clear in clause 3.  They can't take a person to court for
infrigning their trademark when their own copyright license compels
people to use that same trademark.

If they did, the defendant would likely have a good "unclean hands"

As I said above, however, it's best just to fix the license.  This
should be a win-win situation.  I think we should be pretty concerned if
a copyright holder of something that claims to be free or open source
software appears to be desirous of retaining means of launching
frivilous lawsuits against members of the community.

The license looks to me like a cut-and-paste job that was undertaken
without much consideration being given to the total effect.

> > 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).

Not comprehensively, no.  I'm sorry to disappoint you.

You'd be pretty chagrinned, I am sure, by what passed for license
vetting in Debian ten years ago.

> > Okay.  What conclusions should we draw from this?
> That Apache's 1.1 license sucks.

All right.  Sounds like a good candidate for a new thread, then.

> > 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. :)


> I see your point.  But I'd much rather work off what the copyright
> holder believes than someone elses interpretation.

What do we do when a copyright holder refuses to share their beliefs
with respect to specific points?

> 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.

I'm sorry, but I cannot in good concience participate in staking the
future of Debian on the speculations of a bystander (meaning: you're not
the copyright holder, and you haven't told me you're an X-Oz licensee
who has sworn to fight them in court if you turn out to be wrong about
what they mean).

> But remember the license was pretty much dismissed

Eh?  The license wasn't "dismissed".  It was evaluated in detail and
found to fail the DFSG.

To "dismiss" it would be to refuse to consider it.

To use a criminal law analogy, a dismissal of charges is not the same
thing as being acquitted of those charges (it's also not the same thing
as being convicted).

> and argument was summarized without contacting the author.

As above; we rely on volunteers to do this.  As an instituion, we don't
stick our noses into copyright holder's mailboxes. ("Hi!  Thought you
might like to know your license is non-DFSG-free!  Have a nice day!")

We don't know that they particularly care what we think.

This sort of issue is best tackled by a concerned party who is affected
by the license -- someone is actually using the code, and who can carry
out a one-on-one conversation with the copyright holder to clarify
intent, resolve ambiguities, and seek compromise if necessary.

> > 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.

I'd say it's pretty important to get an answer from them on this point,
then, one way or the other.

> > 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.

Then I advise you to be cautious about projecting your own subjective
interpretation of it onto the Debian Project.  More importantly, I
advise you to be cautious about projecting your own subjective
interpretation of it onto the copyright holder!

> > 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
> myself.

Well, over a day has passed, and there has been no reply to my message.
Just FYI.

> 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.

Discussion of license issues in general is germane to the debian-legal
list.  Please see the list charter at:


G. Branden Robinson                |    It is the responsibility of
Debian GNU/Linux                   |    intellectuals to tell the truth and
branden@debian.org                 |    expose lies.
http://people.debian.org/~branden/ |    -- Noam Chomsky

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