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Re: New BitTorrent License Preview



On Tue, 4 Oct 2005 11:26:03 -0500 Michael Janssen wrote:

Mmmmh, let's try and sum up the issues.
Last time we discussed this license (I mean: version 1.0 of this
license), there were various problematic clauses.
Now we're analyzing version 1.1.
Again, should I misrepresent someone's opinions, I apologize in advance:
corrections welcome.

3
-------- seems to be changed
  * is very inconvenient: would forbid Debian to call the package
    "bittorrent" (Jacobo Tarrio)
-------- wdiff of the clause [-v1.0-] {+v1.1+}

3.      Exclusions From License Grant.  Nothing in this License shall be
deemed to grant any rights to trademarks, copyrights, patents, trade
secrets or any other intellectual property of Licensor or any
Contributor except as expressly stated herein. No patent license is
granted separate from the Licensed Product, for code that you delete
from the Licensed Product, or for combinations of the Licensed Product
with other software or hardware.  No right is granted to the trademarks
of Licensor or any Contributor even if such marks are included in the
Licensed Product. Nothing in this License shall be interpreted to
prohibit Licensor from licensing under different terms from this License
any code that Licensor otherwise would have a right to license.  {+As an
express condition for your use of the Licensed Product, you hereby agree
that you will not, without the prior written consent of Licensor, use
any trademarks, copyrights, patents, trade secrets or any other
intellectual property of Licensor or any Contributor except as expressly
stated herein.  For the avoidance of doubt and without limiting the
foregoing, you hereby agree that you will not use or display any
trademark of Licensor or any Contributor in any domain name, directory
filepath, advertisement, link or other reference to you in any manner or
in any media.+}

4a
  * MJ Ray is not happy about it
-------- seems to be unchanged

4b
  * was a practical problem (MJ Ray)
  * was a Freeness issue (Josh Triplett)
  * used to worry me, as it was a restriction on distribution, see
    DFSG#1 (Francesco Poli)
  * was anyway a constraint that Debian mirror network does not satisfy
    (Henning Makholm)
-------- seems to be much improved
  * seems to be acceptable now (Francesco Poli)
-------- wdiff of the clause [-v1.0-] {+v1.1+}

b.       Availability of Source Code.  You must make available,
{+without charge,+} 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,-] {+as long as any executable+} or [-at least six (6) 
months after a subsequent version-] {+other form+} of [-said-] {+the+}
Licensed Product [-or Modifications has been made available.-] {+is
distributed by you.+}  You are responsible for ensuring that the Source
Code version remains available even if the Electronic Distribution
Mechanism is maintained by a third party.

4c
  * necessity to maintain a LEGAL file is a Freeness issue (Josh
    Triplett)
  * is another restriction on distribution, see DFSG#1 (Francesco Poli)
-------- seems to be unchanged

4d
  * is easy to abuse (MJ Ray)
  * Joe Smith quotes MJ Ray about a similar indemnification issue in the
    CDDL: "It could harm those who have an agreement to offer support as
    an agent of an upstream non-initial developer"
-------- seems to be unchanged

4g
-------- is completely new
  * seems to be forbid selling the unmodified source code, see DFSG#1
    (Francesco Poli, Jacobo Tarrio)
  * cannot be worked around by adding trivial third party code (Jacobo
    Tarrio)
  * please delete the last part "For the avoidance of doubt...", which
    is a bit stupid (Jacobo Tarrio)
  * forbids to sell a Debian source CD including BitTorrent and thus
    contaminates other software, see DFSG#9: non-free and a practical
    problem (Jacobo Tarrio)
-------- wdiff of the clause [-v1.0-] {+v1.1+}

{+g.      Compensation for Distribution of Executable Versions of
Licensed Products, Modifications or Derivative Works.  Notwithstanding
any provision of this License to the contrary, by distributing, selling,
licensing, sublicensing or otherwise making available any Licensed
Product, or Modification or Derivative Work thereof, you and Licensor
hereby acknowledge and agree that you may sell, license or sublicense
for a fee, accept donations or otherwise receive compensation for
executable versions of a Licensed Product, without paying a royalty or
other fee to the Licensor or any other Contributor, provided that such
executable versions (i) contain your or another Contributor?s material
Modifications, or (ii) are otherwise material Derivative Works.  For
purposes of this License, an executable version of the Licensed Product
will be deemed to contain a material Modification, or will otherwise be
deemed a material Derivative Work, if (a) the Licensed Product is
modified with your own or a third party?s software programs or other
code, and/or the Licensed Product is combined with a number of your own
or a third party?s software programs or code, respectively, and (b) such
software programs or code add or contribute material value,
functionality or features to the License Product.  For the avoidance of
doubt, to the extent your executable version of a Licensed Product does
not contain your or another Contributor?s material Modifications or is
otherwise not a material Derivative Work, in each case as contemplated
herein, you may not sell, license or sublicense for a fee, accept
donations or otherwise receive compensation for such executable. 
Additionally, without limitation of the foregoing and notwithstanding
any provision of this License to the contrary, you cannot charge for,
sell, license or sublicense for a fee, accept donations or otherwise
receive compensation for the Source Code.+}

7b
-------- seems to be changed
  * seems to imply that Licensor can revoke the license, and substitute
    it with a subsequent version containing arbitrary terms: if this is
    the case, this fails the tentacle of evil test (Francesco Poli)
-------- wdiff of the clause [-v1.0-] {+v1.1+}

b.       Effect of New Versions.  Once Licensed Product has been
published under a particular version of the License, you may always
continue to use it under the terms of that [-version.-] {+version,
provided that any such license be in full force and effect at the time,
and has not been revoked or otherwise terminated.+}  You may also choose
to use such Licensed Product under the terms of any subsequent version
{+(but not any prior version)+} of the License published by Licensor. 
No one other than Licensor has the right to modify the terms applicable
to Licensed Product created under this License.

9a
-------- seems to be changed
  * seems to have become more aggressive, but still acceptable, I would
    say (Francesco Poli)
-------- wdiff of the clause [-v1.0-] {+v1.1+}

a.       Automatic Termination Upon Breach.  This license and the rights
granted hereunder will terminate automatically if you fail to comply
with the terms herein and fail to cure such breach within [-thirty
(30)-] {+ten (10)+} days of
[-becoming aware-] {+being notified+} of the [-breach.-] {+breach by the
Licensor.  For purposes of this provision, proof of delivery via email
to the address listed in the ?WHOIS? database of the registrar for any
website through which you distribute or market any Licensed Product, or
to any alternate email address which you designate in writing to the
Licensor, shall constitute sufficient notification.+} All sublicenses to
the Licensed Product that are properly granted shall survive any
termination of this [-license.-] {+license so long as they continue to
complye with the terms of this License.+}  Provisions that, by their
nature, must remain in effect beyond the termination of this License,
shall survive.

9b
  * looks a little broad, but may be irrelevant (MJ Ray)
  * no clear consensus (Francesco Poli)
-------- seems to be unchanged

13
  * contained a choice of venue, which is non-free (Josh Triplett, MJ
    Ray, Francesco Poli, Henning Makholm)
  * contained a requirement to waive your right to a jury trial, which
    is non-free (Francesco Poli, Josh Triplett)
-------- seems to be a little improved
  * possibly still contains a choice of venue, I'm not sure (Francesco
    Poli)
  * Jacobo Tarrio is speechless about the last sentence: "Any law or
    regulation that provides that the language of a contract shall be
    construed against the drafter shall not apply to this License."
-------- wdiff of the clause [-v1.0-] {+v1.1+}

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.

14
-------- seems to be changed
  * does the responsibility for advising any affiliated entity pose any
    problem?
-------- wdiff of the clause [-v1.0-] {+v1.1+}

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 or a future version of this License issued under Section 7.  For
legal entities, you includes any entity that controls, is controlled by,
[-or-] is under common control [-with-] {+with, or affiliated 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.  {+You are responsible for advising any affiliated
entity of the terms of this License, and that any rights or privileges
derived from or obtained by way of this License are subject to the
restrictions outlined herein.+}



~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Notes: this is not a Freeness issue, but I noticed a pair of typos in
the new version of the license (there's a "complye" and the EXHIBIT A
still refers to version 1.0).

-- 
    :-(   This Universe is buggy! Where's the Creator's BTS?   ;-)
......................................................................
  Francesco Poli                             GnuPG Key ID = DD6DFCF4
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