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Re: Academic Free License 2.1 -- free or not?



On Thu, 14 Oct 2004 14:21:44 -0300 Carlos Laviola wrote:

> Dear -legal friends,
> 
> The FIGlet people are considering changing the license of the entire
> distribution from Artistic to the AFL 2.1.

Hi! I really much appreciate your effort in solving the issues with the
FIGlet package!  :)

> I've found some bits of the
> license rather strange

They are, indeed. More on this later...

[...]
> -- LICENSE TEXT FOLLOWS --
> 
> The Academic Free License
> v. 2.1
[...]
> 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.

This is problematic, IMHO: if I want to distribute "Source Code", have I
to ship *every* single piece of available documentation that describes
how to modify the Original Work? Even independently written
documentation?
Does this satisfy DFSG#9?

> Licensor hereby agrees to provide a machine-readable copy of the
> Source Code of the Original Work along with each copy of the Original
> Work that Licensor distributes. Licensor reserves the right to satisfy
> this obligation by placing a machine-readable copy of the Source Code
> in an information repository [...]

Weird, anyway: Licensor promises to distribute source, but it seems that
there is no requirement for the *licensee* to do so...
This could weaken my concerns above...

[...]
> 5) This section intentionally omitted.

No comment. Intentionally...  ;-)

> 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
> notices of licensing and any descriptive text identified therein as an
> "Attribution Notice."

This concerns me: any section marked as "Attribution Notice" must be
retained. Regardless of what it actually contains? Looks like some sort
of unremovable (or even possibly unmodifiable?) section...
Seems to conflict with DFSG#3...

[...]
> 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.

What about jurisdictions where a disclaimer of warranty is not effective
(or, at least, not thoroughly enforceable)?
Does this make the license suddenly disappear in those jurisdictions?

[...]
> 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.

This is my main concern: distributors must obtain express license
acceptance assent from recipients.
This is non-free, I would say. DFSG#1?

[...]
> 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, against Licensor or any
> licensee alleging that the Original Work infringes a patent. This
> termination provision shall not apply for an action alleging patent
> infringement by combinations of the Original Work with other software
> or hardware.

This is problematic, though not so broad as other similar clauses we
have seen here before.
IIRC, there is no clear consensus about the DFSG-freeness of such a
clause.
But, be warned, I didn't have time to revise the long archived
discussions...

> 
> 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.

This is choice of law (acceptable), but also choice of venue (non-free
in many debian-legal regulars' opinion, but not in everyone's).

> The application of the United Nations
> Convention on Contracts for the International Sale of Goods is
> expressly excluded.

Huh? Can a licence grant expressly exclude the application of a
convention?

[...]
> -- EOL --


-- 
          Today is the tomorrow you worried about yesterday.
......................................................................
  Francesco Poli                             GnuPG Key ID = DD6DFCF4
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