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Re: Apple's APSL 2.0 " Debian Free Software Guidelines"-compliant?

On Fri, 25 Jun 2004 04:32:01 -0500 Ryan Rasmussen wrote:

> Is the following compliant with Debian's Free Software Guidelines?
> -------------------------------------------------------------------
> Version 2.0 - August 6, 2003
> Please read this License carefully before downloading this software.
> By downloading or using this software, you are agreeing to be bound by
> the terms of this License. If you do not or cannot agree to the terms
> of this License, please do not download or use the software.

That's not a good start: you need to agree with the license in order to
download and use the software.

> 1. General; Definitions.
[snip some definitions]
> 1.4 "Externally Deploy" means: (a) to sublicense, distribute or
> otherwise make Covered Code available, directly or indirectly, to
> anyone other than You; and/or (b) to use Covered Code, alone or as
> part of a Larger Work, in any way to provide a service, including but
> not limited to delivery of content, through electronic communication
> with a client other than You.

Remember this for later...

[snip other definitions]
> 2. Permitted Uses; Conditions & Restrictions. Subject to the terms
> and conditions of this License, Apple hereby grants You, effective on
> the date You accept this License and download the Original Code, a
> world-wide, royalty-free, non-exclusive license, to the extent of
> Apple's Applicable Patent Rights and copyrights covering the Original
> Code, to do the following:
> 2.1 Unmodified Code. You may use, reproduce, display, perform,
> internally distribute within Your organization, and Externally Deploy
> verbatim, unmodified copies of the Original Code, for commercial or
> non-commercial purposes, provided that in each instance:
> (a) You must retain and reproduce in all copies of Original Code the
> copyright and other proprietary notices

"Proprietary notices"? What's a "proprietary notice"?

> and disclaimers of Apple as
> they appear in the Original Code, and keep intact all notices in the
> Original Code that refer to this License; and
> (b) You must include a copy of this License with every copy of Source
> Code of Covered Code and documentation You distribute or Externally
> Deploy, and You may not offer or impose any terms on such Source Code
> that alter or restrict this License or the recipients' rights
> hereunder, except as permitted under Section 6.

Since "Externally Deploy" can also mean "to use the Covered Code, alone
or as part of a Larger Work, in any way to provide a service" (see above
definition), this clause could also mean I have to "include a copy of
this License" when I use the software to provide a service.
What is not clear to me is: where have I to include it?

> 2.2 Modified Code. You may modify Covered Code and use, reproduce,
> display, perform, internally distribute within Your organization, and
> Externally Deploy Your Modifications and Covered Code, for commercial
> or non-commercial purposes, provided that in each instance You also
> meet all of these conditions:
> (a) You must satisfy all the conditions of Section 2.1 with respect to
> the Source Code of the Covered Code;
> (b) You must duplicate, to the extent it does not already exist, the
> notice in Exhibit A in each file of the Source Code of all Your
> Modifications, and cause the modified files to carry prominent notices
> stating that You changed the files and the date of any change; and
> (c) If You Externally Deploy Your Modifications, You must make
> Source Code of all Your Externally Deployed Modifications either
> available to those to whom You have Externally Deployed Your
> Modifications, or publicly available.

Here it is... Forced distribution: if you use your modified version to
provide a service (see above definition of "Externally Deploy") you are
forced to distribute the source code of your modified version.
That seems much like one of the issues with OSL (Open Software License)
v2.0: this is a use restriction.
Quoting Jeremy Hankins:
: While the DFSG does not explicitly prohibit this, the consensus on
: debian-legal is that this is non-free.

> Source Code of Your Externally
> Deployed Modifications must be released under the terms set forth in
> this License, including the license grants set forth in Section 3
> below, for as long as you Externally Deploy the Covered Code or twelve
> (12) months from the date of initial External Deployment, whichever is
> longer. You should preferably distribute the Source Code of Your
> Externally Deployed Modifications electronically (e.g. download from a
> web site).
> 2.3 Distribution of Executable Versions. In addition, if You
> Externally Deploy Covered Code (Original Code and/or Modifications) in
> object code, executable form only, You must include a prominent
> notice, in the code itself as well as in related documentation,
> stating that Source Code of the Covered Code is available under the
> terms of this License with information on how and where to obtain such
> Source Code.

Again forced distribution: if you use the Executable Version to provide
a service, you must distribute the Source Code.

> 2.4 Third Party Rights. You expressly acknowledge and agree that
[snip other clauses]
> You acknowledge that the Covered Code is not intended for use in the
> operation of nuclear facilities, aircraft navigation, communication
> systems, or air traffic control machines in which case the failure of
> the Covered Code could lead to death, personal injury, or severe
> physical or environmental damage.

Does this mean that such uses are not permitted? Or simply that they are
not encouraged?
In case this part prohibit use of Covered Code in these fields of
endeavor, then it violated DFSG#6 (No Discrimination Against Fields of

> 12. Termination.
> 12.1 Termination. This License and the rights granted hereunder will
> terminate:
> (a) automatically without notice from Apple if You fail to comply with
> any term(s) of this License and fail to cure such breach within 30
> days of becoming aware of such breach;

This sounds pretty standard.

> (b) immediately in the event of the circumstances described in Section
> 13.5(b); or

See later.

> (c) automatically without notice from Apple if You, at any time during
> the term of this License, commence an action for patent infringement
> against Apple; provided that Apple did not first commence
> an action for patent infringement against You in that instance.

The license terminates if I suit Apple for patent infringement. Even for
infringements unrelated to the Covered Code? This is much too broad
(again something similar is found in OSL v2.0).

> 12.2 Effect of Termination. Upon termination, You agree to immediately
> stop any further use, reproduction, modification, sublicensing and
> distribution of the Covered Code.

License termination means that I must stop even using the Covered Code.
This seems beyond copyright and thus enforceable only in case there
actually *are* patents applied to the Covered Code that are own to the
Correct me if I'm wrong.

> All sublicenses to the Covered Code
> which have been properly granted prior to termination shall survive
> any termination of this License. Provisions which, by their nature,
> should remain in effect beyond the termination of this License shall
> survive, including but not limited to Sections 3, 5, 8, 9, 10, 11,
> 12.2 and 13. No party will be liable to any other for compensation,
> indemnity or damages of any sort solely as a result of terminating
> this License in accordance with its terms, and termination of this
> License will be without prejudice to any other right or remedy of
> any party.
> 13. Miscellaneous.
> 13.5 Severability. (a) If for any reason a court of competent
> jurisdiction finds any provision of this License, or portion thereof,
> to be unenforceable, that provision of the License will be enforced to
> the maximum extent permissible so as to effect the economic benefits
> and intent of the parties, and the remainder of this License will
> continue in full force and effect. (b) Notwithstanding the foregoing,
> if applicable law prohibits or restricts You from fully and/or
> specifically complying with Sections 2 and/or 3 or prevents the
> enforceability of either of those Sections, this License will
> immediately terminate and You must immediately discontinue any use of
> the Covered Code and destroy all copies of it that are in your
> possession or control.

Again I must stop using the Covered Code and destroy all my copies, if
license terminates. This seems too broad. 

> 13.6 Dispute Resolution. Any litigation or other dispute resolution
> between You and Apple relating to this License shall take place in the
> Northern District of California, and You and Apple hereby consent to
> the personal jurisdiction of, and venue in, the state and federal
> courts within that District with respect to this License. The
> application of the United Nations Convention on Contracts for the
> International Sale of Goods is expressly excluded.

This is a choice of venue. Quoting Andrew Suffield:

: Stock objection to choice of venue clauses is that they force people
: to travel at their own expense. In essence they attempt to bypass the
: legal system by making it prohibitively expensive for somebody to
: defend themselves.

> 13.7 Entire Agreement; Governing Law. This License constitutes the
> entire agreement between the parties with respect to the subject
> matter hereof. This License shall be governed by the laws of the
> United States and the State of California, except that body of
> California law concerning conflicts of law.

Choice of law clause. This is regarded as fine, IIRC.

> Where You are located in the province of Quebec, Canada, the following
> clause applies: The parties hereby confirm that they have requested
> that this License and all related documents be drafted in English. Les
> parties ont exige que le present contrat et tous les documents
> connexes soient rediges en anglais.

This seems a discrimination betwwen people and thus to violate DFSG#5
(No Discrimination Against Persons or Groups).

[exhibit A snipped]

             |  GnuPG Key ID = DD6DFCF4 | You're compiling a program
  Francesco  |        Key fingerprint = | and, all of a sudden, boom!
     Poli    | C979 F34B 27CE 5CD8 DC12 |         -- from APT HOWTO,
             | 31B5 78F4 279B DD6D FCF4 |             version 1.8.0

Attachment: pgpuuNoqy84BH.pgp
Description: PGP signature

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