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Re: BitTorrent Open Source License (Proposed Changes)



On Saturday 30 July 2005 07:52 am, Michael Janssen wrote:
> Hello legal gurus:
>
> I have been trying to get the authors of BitTorrent to change their
> license (the BitTorrent Open Source License) in order to make it
> suitable for inclusion in Debian.  The BitTorrent Open Source License
> has been discussed before on this list [1, 2].  It is my understanding
> that the only two sections which cause problems are Section 13
> (choice-of-venue) and Section 4.b (keep source online for 6 months).
>
> I am trying to make it easy for Bram et al. to change the license and
> would like to propose new language specifically for him to include.
> The offending sections of the old license are included here, and my
> proposed changed sections.  Would making these changes make the
> license suitable?
>
> Section 13:
> ORIGINAL:
> 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.  This License
> shall be governed by California law provisions (except to the extent
> applicable law, if any, provides otherwise), excluding its
> conflict-of-law provisions.  You expressly agree that any litigation
> relating to this license shall be subject to the jurisdiction of the
> Federal Courts of the Northern District of California or the Superior
> Court of the County of Santa Clara, California (as appropriate), with
> venue lying in Santa Clara County, California, with the losing party
> responsible for costs including, without limitation, court costs and
> reasonable attorneys fees and expenses.  The application of the United
> Nations Convention on Contracts for the International Sale of Goods is
> expressly excluded.  You and Licensor expressly waive any rights to a
> jury trial in any litigation concerning Licensed Product or this
> License.  Any law or regulation that provides that the language of a
> contract shall be construed against the drafter shall not apply to
> this License.
>
> MODIFIED:
> 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.  This License
> shall be governed by California law provisions (except to the extent
> applicable law, if any, provides otherwise), excluding its
> conflict-of-law provisions.  You expressly agree that any litigation
> relating to this license shall be subject to the jurisdiction of the
> Federal Courts of the Northern District of California or the Superior
> Court of the County of Santa Clara, California (as appropriate), with
> the losing party responsible for costs including, without limitation,
> court costs and reasonable attorneys fees and expenses.  The
> application of the United Nations Convention on Contracts for the
> International Sale of Goods is expressly excluded.  You and Licensor
> expressly waive any rights to a jury trial in any litigation
> concerning Licensed Product or this License.  Any law or regulation
> that provides that the language of a contract shall be construed
> against the drafter shall not apply to this License.

Hmm...  Personally, I'm not convinced that venue clauses are non-free.  But if 
they are willing to drop a venue requirement, that's great for users of 
Debian!  I'm surprised that folks on this list are comfortable with such 
strong choice-of-law provisions.  Again, I don't believe such clauses are 
non-free, but I believe I've heard the argument made before.  (A license has 
got to be interpreted under laws somewhere...  might as well establish the 
laws prior to the agreement instead of fighting it out in court.)

> Section 4.b:
> ORIGINAL:
> b.       Availability of Source Code.  You must make available, under
> the terms of this License, the Source Code of the Licensed Product and
> any Modifications that you distribute, either on the same media as you
> distribute any executable or other form of the Licensed Product, or
> via a mechanism generally accepted in the software development
> community for the electronic transfer of data (an "Electronic
> Distribution Mechanism").  The Source Code for any version of Licensed
> Product or Modifications that you distribute must remain available for
> at least twelve (12) months after the date it initially became
> available, or at least six (6) months after a subsequent version of
> said Licensed Product or Modifications has been made available.  You
> are responsible for ensuring that the Source Code version remains
> available even if the Electronic Distribution Mechanism is maintained
> by a third party.
>
> MODIFIED:
> b.       Availability of Source Code.  You must make available, under
> the terms of this License, the Source Code of the Licensed Product and
> any Modifications that you distribute, either on the same media as you
> distribute any executable or other form of the Licensed Product, or
> via a mechanism generally accepted in the software development
> community for the electronic transfer of data (an "Electronic
> Distribution Mechanism").  The Source Code for any version of Licensed
> Product or Modifications that you distribute must remain available for
> as long as any executable or other form of the Licensed Product is
> available.  You are responsible for ensuring that the Source Code
> version remains available even if the Electronic Distribution
> Mechanism is maintained by a third party.

What's the concern here?  The GPL only requires that I provide a source 
distribution method for three years (clause 3(b))...  why can't this license 
only require source distribution for six months?  This change seems 
unnecessary to pass under the DSFG if the GPL is acceptable.

-Sean

-- 
Sean Kellogg
3rd Year - University of Washington School of Law
Graduate & Professional Student Senate Treasurer
UW Service & Activities Committee Interim Chair 
w: http://probonogeek.blogspot.com

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