Re: Open Software License v2.1
Anthony DeRobertis wrote:
>> 3) Grant of Source Code License. The term "Source Code" means the
>> preferred form of the Original Work for making modifications to it and
>> all available documentation describing how to modify the Original
>> Work.
> non-free: "all available documentation" seems to contaminate other
> software. It seems I'm compelled to distribute, e.g., copies of my
> references on C++ if the work is in C++.
>
> Also, I should certainly be able to write documents describing how to
> modify something, and keep those private; those are separate works.
Ow, ow, ow. How did I miss that one? Yeah, that's absolutely non-free.
>> (4, continued)
>> No patent license is granted to make, use, sell or offer to sell
>> embodiments of any patent claims other than the licensed claims
>> defined in Section 2. No right is granted to the trademarks of
>> Licensor even if such marks are included in the Original Work.
>
> caution: this means that you may have to scrub trademarks before
> actually having free (or even distributable) software.
Yep. Same as Mozilla. :-P
>> 7) Warranty of Provenance and Disclaimer of Warranty. Licensor
>> warrants that the copyright in and to the Original Work and the patent
>> rights granted herein by Licensor are owned by the Licensor or are
>> sublicensed to You under the terms of this License with the permission
>> of the contributor(s) of those copyrights and patent rights.
>
> Hmmm, this is iffy... It appears I have to warrant that the patent
> grants that I received when I got the work are true. Consider:
>
> a) I receive an OSL work, FooBar, from FooCorp.
> b) I make a derivative work of FooBar, and distribute it.
> c) BarCorp receives my modified FooBar from me.
>
> Now, if FooCorp actually didn't properly obtain patents rights to
> FooBar, BarCorp appears to be able to sue *me* for that. This becomes
> very relevant if FooCorp has gone out of business, for example.
>
> I don't think this is free.
I'm pretty sure this doesn't actually do that.
"warrants that the copyright in and to the Original Work and the patent
rights granted herein by Licensor"
^^^^^^^^^^^^^^^^^^^^^^^^^^
This does not include the patent rights granted by licensors of earlier
works of which this is a derivative. See clause 2. The only patent rights
being granted *herein* are those "under patent claims owned or controlled
by the Licensor".
FooCorp's patent rights covering FooBar are granted by a copy of the OSL
with FooCorp as Licensor. Your patent rights covering FooBar (none) are
granted by a copy of the OSL with you as Licensor. Your warranty only
applies to the patent claims "owned or controlled" by you.
Remember that this is a standard American-style copyleft, under which all
licenses come directly from the copyright/patent holders individually,
rather than via sublicenses.
>> (7, continued)
>> Except as expressly stated in the immediately proceeding sentence, the
>> Original Work is provided under this License on an "AS IS" BASIS and
>> WITHOUT WARRANTY, either express or implied, including, without
>> limitation, the warranties of NON-INFRINGEMENT, MERCHANTABILITY or
>> FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY OF
>> THE ORIGINAL WORK IS WITH YOU. This DISCLAIMER OF WARRANTY constitutes
>> an essential part of this License. No license to Original Work is
>> granted hereunder except under this disclaimer.
>
> Does this prohibit distributing the work into jurisdictions which place
> limitations on warranty disclaimers? If so, even if this is free, it
> would make it impossible for Debian to distribute.
Usually that's not how it works; the excess disclaimers are simply
considered to be invalid and the license is read as if they said "to the
extent permissable by law". However, this extra sentence worries me:
"No license to Original Work is granted hereunder except under this
disclaimer." We *really* would need a lawyer to answer that question, and
IANAL.
It would be much, much, better if it included the clause "...except to the
extent such warranties cannot legally be disclaimed." or some such.
>> 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.
>
> Restriction on modification & on distribution. Not free.
Yeah, the clickwrap clause.
>> (9, continued)
>> 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.
>
> Pure BS. Fair use does in the US, for example.
Yeah, this should be phrased much more carefully and accurately.
>> 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.
>
> Choice of venue. Ack.
Yeah. If it added "or wherein the Licensee resides or in which Licensee
conducts its primary business"
>> (11, continued)
>> The application of the United Nations Convention on Contracts for the
>> International Sale of Goods is expressly excluded.
>
> What does this convention say, anyway? Guess I should look it up
> someday...
That's a good question.
>> (11, continued)
>> 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.
>
> Ummm... this seems quite unneeded, and possibly harmful (e.g., if I had
> a different license to the work).
>
>> 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
>> connection with such action, including any appeal of such action. This
>> section shall survive the termination of this License.
>
> Should free software licenses really attempt to do things like this? I
> realize that lawsuits suck, but a free license doesn't seem like the
> appropriate venue to attempt to fix that.
Well, it's enforcing the "English rule". That clause is genuinely not
biased, and does correspond to standard law in many countries, and many
people advocate it in the US (as a way of ending nuisance lawsuits and the
'deep pockets' phenomenon without penalizing small but justified suers) so
I'm inclined to call it free.
>> 14) Definition of "You" in This License. "You" throughout this
>> License, whether in upper or lower case, means an individual or a
>> legal entity exercising rights under, and complying with all of the
>> terms of, this License. For legal entities, "You" includes any entity
>> that controls, is controlled by, or is under common control with you.
>> For purposes of this definition, "control" means (i) the power, direct
>> or indirect, to cause the direction or management of such entity,
>> whether by contract or otherwise, or (ii) ownership of fifty percent
>> (50%) or more of the outstanding shares, or (iii) beneficial ownership
>> of such entity.
>
> This seems dangerous --- it looks like it'd potentially involve unaware
> parties in the license. I doubt this is enforceable....
Nah, that's really normal, actually. It applies to corporations and is
designed to prevent a nasty and popular scam where someone sets up a
controlled corporation to do some illegal work, and then when they get
caught, disowns it.
>> 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
>> Licensor promises not to interfere with or be responsible for such
>> uses by You.
>
> Ummm, so if I use this work to protest George Bush, Licensor can't come
> and be a heckler? Sounds non-free. This could even be read as I can't
> go into competition with your business. Non-free restriction on
> unrelated actions.
>
> And how do you promise not to be responsible for something? That
> doesn't make much sense.
Yeah, this one is a bit incomprehensible and poorly written.
>> This license is Copyright (C) 2003-2004 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.
And it should allow people to modify the license text. :-P
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