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DRAFT d-l summary of the OSL v2.0

Here's the draft summary of the OSL2.0 I promised.  Comments
requested.  Specifically:

Regarding the patent clause: Sam Hartman, you & Anders Torger (the
upstream licensor) were the only two I saw while going back over the
thread that felt it wasn't a problem.  Is my characterization of that
issue fair?

The bigger issue, though, is that I didn't provide a DFSG section for
the first problem.  The closest the DFSG comes to prohibiting use
restrictions is #6 ("No Discrimination Against Fields of Endeavor"), but
I'm uncomfortable using that for this issue -- is "deploying software
without providing source" a field of endeavor)?.  If "a specific field
of endeavor" is intended that broadly, it should be reworded, IMHO.

There is no obvious prohibition against forced distribution, either.
The closest we have to that are the Desert island test & the Dissident
test -- but I don't see how those can be applied here.  My understanding
of those tests is that they apply to cases of the form "in order to do
X, you must do Y."  If Y runs afoul of the test, it is a significant
restriction on X.  But what's the X in this case?

Don't misunderstand, I do think that the restriction is non-free (though
I'm interested in arguments to the contrary -- I'm not entirely
certain).  But I don't see a way to ground it in the DFSG.  Perhaps we
should think about language to add to the DFSG for this kind of case?
If so, we should decide whether this is best understood as a use
restriction or forced distribution, so that we know what to add.

--- Begin DRAFT Debian-legal summary of the OSL ---

The OSL (Open Software License) v2.0 is not a DFSG free license.

- Item #5 "External Deployment" places distribution-like burdens on
  deployment.  E.g., when the Work is made available over a network
  source must be distributed.  This amounts to forced distribution (DFSG

- Item #9 "Acceptance and Termination" requires the licensee to
  acknowledge acceptance of the license.  According to the Dissident
  Test[1] this is a significant restriction on distribution (DFSG #1).

- Item #6 "Attribution Rights" requires retention of any "Attribution
  Notice," even if false.  There are no restrictions on what may be
  considered an attribution notice, so there are no clear limits on what
  materials must be retained.  This restricts modification (DFSG #3).

In addition to the above it is likely that item #10 "Termination for
Patent Action" is contrary to the DFSG.  Item #10 terminates the license
if you are involved in a suit with a licensor over "a patent applicable
to software", or against anyone else over a patent relating to the Work.
Unfortunately, as of the time of this writing this issue has not been
settled conclusively.


If you want a copyleft license for your work debian-legal recommends the
GPL v2.0.

Any attempt to modify the license to pass the DFSG would need to address
the three issues above, with the possible addition of the "Termination
for Patent Action" issue (also mentioned above).

NOTE: The above is not legal advice.  If you need legal advice you
should contact an attorney.

The OSL v2.0 can be found at:


It is included in full below.

[1] See item 8 in the DFSG FAQ:

--- End DRAFT Debian-legal summary of the OSL ---


Open Software License
 v. 2.0

This Open Software License (the "License") applies to any original work
of authorship (the "Original Work") whose owner (the "Licensor") has
placed the following notice immediately following the copyright notice
for the Original Work: Licensed under the Open Software License version

1) Grant of Copyright License. Licensor hereby grants You a world-wide,
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a) to reproduce the Original Work in copies; 

b) to prepare derivative works ("Derivative Works") based upon the Original Work; 

c) to distribute copies of the Original Work and Derivative Works to the
   public, with the proviso that copies of Original Work or Derivative
   Works that You distribute shall be licensed under the Open Software

d) to perform the Original Work publicly; and 

e) to display the Original Work publicly.   

2) Grant of Patent License. Licensor hereby grants You a world-wide,
   royalty-free, non-exclusive, perpetual, sublicenseable license, under
   patent claims owned or controlled by the Licensor that are embodied
   in the Original Work as furnished by the Licensor, to make, use, sell
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3) Grant of Source Code License. The term "Source Code" means the
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   Original Work.  Nothing in this License shall be interpreted to
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   prescribed in section 1(c) herein.

6) Attribution Rights. You must retain, in the Source Code of any
   Derivative Works that You create, all copyright, patent or trademark
   notices from the Source Code of the Original Work, as well as any
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   that the copyright in and to the Original Work and the patent rights
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   IS" BASIS and WITHOUT WARRANTY, either express or implied, including,
   without limitation, the warranties of NON-INFRINGEMENT,
   OF WARRANTY constitutes an essential part of this License.  No
   license to Original Work is granted hereunder except under this

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   theory, whether in tort (including negligence), contract, or
   otherwise, shall the Licensor be liable to any person for any direct,
   indirect, special, incidental, or consequential damages of any
   character arising as a result of this License or the use of the
   Original Work including, without limitation, damages for loss of
   goodwill, work stoppage, computer failure or malfunction, or any and
   all other commercial damages or losses.  This limitation of liability
   shall not apply to liability for death or personal injury resulting
   from Licensor's negligence to the extent applicable law prohibits
   such limitation.  Some jurisdictions do not allow the exclusion or
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   and limitation may not apply to You.

9) Acceptance and Termination. If You distribute copies of the Original
   Work or a Derivative Work, You must make a reasonable effort under
   the circumstances to obtain the express assent of recipients to the
   terms of this License.  Nothing else but this License (or another
   written agreement between Licensor and You) grants You permission to
   create Derivative Works based upon the Original Work or to exercise
   any of the rights granted in Section 1 herein, and any attempt to do
   so except under the terms of this License (or another written
   agreement between Licensor and You) is expressly prohibited by
   U.S. copyright law, the equivalent laws of other countries, and by
   international treaty.  Therefore, by exercising any of the rights
   granted to You in Section 1 herein, You indicate Your acceptance of
   this License and all of its terms and conditions.  This License shall
   terminate immediately and you may no longer exercise any of the
   rights granted to You by this License upon Your failure to honor the
   proviso in Section 1(c) herein.

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 (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).

11) Jurisdiction, Venue and Governing Law. Any action or suit relating
    to this License may be brought only in the courts of a jurisdiction
    wherein the Licensor resides or in which Licensor conducts its
    primary business, and under the laws of that jurisdiction excluding
    its conflict-of-law provisions.  The application of the United
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    is expressly excluded.  Any use of the Original Work outside the
    scope of this License or after its termination shall be subject to
    the requirements and penalties of the U.S. Copyright Act, 17 U.S.C.
    101 et seq., the equivalent laws of other countries, and
    international treaty.  This section shall survive the termination of
    this License.

12) Attorneys Fees. In any action to enforce the terms of this License
    or seeking damages relating thereto, the prevailing party shall be
    entitled to recover its costs and expenses, including, without
    limitation, reasonable attorneys' fees and costs incurred in
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13) Miscellaneous. This License represents the complete agreement
    concerning the subject matter hereof.  If any provision of this
    License is held to be unenforceable, such provision shall be
    reformed only to the extent necessary to make it enforceable.

14) Definition of "You" in This License. "You" throughout this License,
    whether in upper or lower case, means an individual or a legal
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15) Right to Use. You may use the Original Work in all ways not
    otherwise restricted or conditioned by this License or by law, and
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This license is Copyright (C) 2003 Lawrence E. Rosen.  All rights
reserved.  Permission is hereby granted to copy and distribute this
license without modification.  This license may not be modified without
the express written permission of its copyright owner.

Jeremy Hankins <nowan@nowan.org>
PGP fingerprint: 748F 4D16 538E 75D6 8333  9E10 D212 B5ED 37D0 0A03

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