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[jcowan@reutershealth.com: Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?]

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Glenn Maynard
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(Please forward to debian-legal; I don't seem to be able to sign up for it

Glenn Maynard scripsit:

> This also implies that, for example, "Licensor hereby agrees to provide
> a machine-readable copy of the Source Code of the Original Work ..."
> means "if you distribute this, you're the licensor, so *you* agree to
> provide ...".  This clause reads as if it says "the original author
> agrees ...".  Placing conditions by asserting that the licensor agrees
> to something and then arranging for redistribution to turn you into the
> licensor may well be legally valid, but it's extremely confusing, and
> most people aren't going to understand it.

Rather, you *may* turn yourself into the licensor by distributing, but
you are not, and cannot be, compelled to do so.  If you want to do so (for
example, if you intend to offer a distro of AFL-licensed content from
various authors and assume responsibility for source code distribution)
then you can.

> If the "sublicense" doesn't have to be the AFL, though, I don't quite
> understand what the intention is.  That seems to mean that if I redistribute
> the work, I have to include source--

If you are distributing the original work under the AFL, or a derivative
work of your own under the AFL.  But those are not your only choices.

> but I can distribute it under the X11
> license, so the person I send it to is no longer forced to include source
> (or to grant patent licenses, and so on).

Just so.  AFL original and derivative works may be redistributed under
any license ranging from X11/MIT to a proprietary license.  The AFL is
intended to belong to the BSD/MIT/Apache family of licenses, placing
almost no restrictions or obligations on the licensee, except:

1) Mark your changes and don't delete other peoples' change marks.
2) Don't sue me for liability, warranty, or patent infringement.
3) If you do sue me for something else, sue me where I am.

And even these modest restrictions apply only to the original work,
not to any derivative works.

> This doesn't make sense to me.  A license gives a set of permissions,
> sometimes with conditions.  Allowing anything that the AFL doesn't,
> or restricting it in any way that it doesn't, seems to "contradict the
> AFL".

The AFL applies only to works which claim to be licensed under the AFL.
A derivative work need not be licensed under the AFL, for the simple
reason that the AFL does not so require (unlike its sister, the OSL).
It can be licensed under a license that is more or less restrictive.

> For what it's worth, I think the general feeling here is that licenses that
> need to do things which require a contract to be formed, and not a simple
> copyright license grant, are "probably non-free".  It also brings in a
> bunch of bags of worms: "consideration", for example, and to my (very
> poor) understanding, contract law differs across jurisdictions far more
> widely than copyright law.

Quite right so far as it goes, but contracts have advantages, and are
used by most corporate licenses (the MPL is a contract, for example).

The trouble with bare licenses is that they may be revocable -- nobody
knows, but certainly a bare license to trespass on land, for example,
is revocable at will.  The AFL is a unilateral contract: *only* the
licensor makes promises.

For example, if the licensor's warranty of provenance (that he has
either a valid copyright on the code or a valid license to use it) is
broken, the licensee can sue.  Similarly, if the licensor distributes
the original work in binary form but under the AFL, the licensee can
sue to get the source (probably -- courts won't always enforce specific

In a bare license, the licensee has no standing to sue whatsoever,
except on the shaky theory of promissory estoppel (which amounts to the
notion that a bare promise without contract formation can be treated as
a contract if the promisee relied on it to his detriment).

> I'd recommend not debating [patent defenses] in this thread, though--if
> you do, it's almost guaranteed to subvert the thread entirely.


> What I don't understand is 1: what are the AFL's goals, particularly
> (for the sake of discussion) in "agrees to provide a machine-readable
> copy of the Source Code ...", and 2: why are those goals not subverted
> by this sublicensing stuff?

As I said above, the AFL is intended to be a maximally permissive license
that still provides some modest protections for both licensor and licensee.
The licensor is protected from certain kinds of lawsuits; the licensee
is assured of actually getting the original work (DFSG #2) and that
the licensor has the right to license it, as well as the full MIT-style
set of freedoms (note that by one reading, at least, the MIT contains
an implicit patent license in the verb "use", which is not relevant to
copyrights but is relevant to patents).

IANAL, TINLA.  I hope this helps clarify matters.

De plichten van een docent zijn divers,         John Cowan
die van het gehoor ook.                         jcowan@reutershealth.com
      --Edsger Dijkstra                         http://www.ccil.org/~cowan

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