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Re: Is OSL 2.0 compliant with DFSG?

Anders Torger wrote:

> As I see it, this #9 is a sort of belt-and-braces clause which is more
> or less redundant.
This is non-free.  Requiring users to implement click-wrap provisions is a
substantial restriction modification of the most annoying sort.

> The traditional way of distributing GPL software,
> that is with a simple license file in the .tar.gz is not enough for
> "forcing" the user to accept the license agreement before using the
> software. That is, you as the licensor cannot say that a user of the
> software has accepted the license agreement.
Which is fine, because you don't need a license to *use* the software under
the GPL.  The OSL purports to restrict use  (clause 5).  :-P

> Many has said that because of this, GPL is not enforcable in most
> software packages, since they do not have click-wrap installation
> procedures.
These claims are silly however; because there is no right to *redistribute*
the software without the GPL, you must accept the GPL in order to do so.

> OSL takes care of this problem, and puts the responsibility on the
> distributor. I think it would be better to have it on the software
> author instead though (having y/n license agreement question
> on ./configure or make or similar).
No, click-wrap should be avoided entirely.

> However, now to the important point here, since GPL and OSL gives the
> user more rights than she/he would have if the license is not accepted,
> click-wrap is only a theoretical problem. People know default copyright
> law well enough that they would look for the LICENSE file if they would
> do anything that would violate the default copyright. Thus, I think "a
> reasonable effort under the circumstances to obtain the express assent
> of receipients" would simply to have the LICENSE in the archive which
> is downloaded from the FTP.
I like that interpretation.  ;-)  I don't believe it though, because it says
the "*express*" assent; is leaving a file in the archive really likely to
obtain express assent?  :-(

> I'm trying to say that doing nothing is doing enough. That is what GPL
> advocates always has said. If #9 in OSL has actual relevance, today's
> distribution must be reconsidered, and click-wrap procedures must be
> provided for GPL software as well, perhaps by a click-wrap step in
> apt-get.
> I would like to hear from an OSL advocate the views on this clause.
> And a comment on #10, the patent action clause. I think DFSG should be
> changed if necessary to allow these kind of clauses. The clause does
> not discriminate anyone, it is just a small protection against the
> largest threat against free software there is -- software patents.
> Nearly all commercial licenses have these type of clauses.
The consensus has been that termination based on *unrelated* patent action
is not OK; termination based on *related* patent action is fine.

The phrase "a patent applicable to software" is disturbingly broad, as
perfectly legitimate real-world patents might be "applicable to software"
even if they're not actually *applied* to software.

>From the OSL:
>10) Termination for Patent Action. This License shall terminate
>    automatically and You may no longer exercise any of the rights
>    granted to You by this License as of the date You commence an
>    action, including a cross-claim or counterclaim, for patent
>    infringement 

>(i) against Licensor with respect to a patent
>    applicable to software or 
So I sue because Licensor infringed on my mousetrap patent, and Licensor
says "that patent is theoretically applicable to software, so I'm
terminating your license".

>(ii) against any entity with respect to a
>    patent applicable to the Original Work (but excluding combinations
>    of the Original Work with other software or hardware).
Again, "applicable" is too broad.

Look at the Apache License 2.0 for a patent termination clause which is

>If You institute patent litigation against any entity (including a 
>cross-claim or counterclaim in a lawsuit) alleging that the Work or a 
>Contribution incorporated within the Work constitutes direct or 
>contributory patent infringement, then any patent licenses granted to You 
>under this License for that Work shall terminate as of the date such 
>litigation is filed. 

I, personally, think that it would be DFSG-free (though not GPL-compatible)
to terminate the whole license (including the copyright license) under
*those* circumstances.

Let's rewrite those circumstances in a more general way:

If You instigate litigation against any entity (including a cross-claim or 
counterclaim in a lawsuit) alleging that the Work, any portion of the Work, 
or any other work incorporated in the Work constitutes direct or
contributory patent infringement, [license terminates].

Clauses like *that* are fine and free; they essentially say "if you say that
this Work is a patent infringement, and therefore that it's not freely
available to other people, then it's not freely available to you either". 
They specifically defend the freedom of the covered Work, and nothing else.

The OSL patent termination clauses are much broader, and non-free.

Anders Torger wrote:
> And to a final question, if I change the license to OSL for my software,
> can it then no longer be distributed with Debian? If so, I may
> reconsider my decision.
Probably, it would not be able to be distributed in Debian.

One more problem with the OSL: 

* Clause 6 appears to require users to retain notices even if they're false
(I keep trying to get this sort of nonsense fixed).

Make sure your vote will count.

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