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Re: Squiz.net Open Source License - is it free?



On Fri, 3 Feb 2006 11:47:39 +1100 Andrew Donnellan wrote:

> 1. Right of use
> 1.1 Subject to Clause 2 and the legal rights of any third party, You
> are granted a non-exclusive right to install, view, copy, modify,
> alter and add to the Software (in source or object code form) in any
> way. However:
> 
> (a)  You must not introduce any virus, worm, trojan horse or malicious
> code into the Software;

This is clearly non-free, as it restricts modifications (fails DFSG#3).

It's also definitely vague, as the terms "virus", "worm", "trojan horse"
and "malicious code" are not defined in the license or in any law (that
I know of).
I could introduce something and distribute the modified version in good
faith, then upstream decides to claim that what I introduced is
"malicious code": how can I prove it's not?

[...]
> 1.3
[...]
> This Licence does not apply to
> any computer program other than the Software, even if that program is
> distributed along with the Software.

This may be plainly false: it seems the license is claiming that no
program but one is licensed under the present terms and conditions.

I think the license drafter intended to mean that "distributing other
software along with the Software does not automatically bring that other
software under the scope of this license", but this is not what the
license says...

[...]
> 2.4 If You alter, modify or add to the Software, You are expected to
> assign all of Your intellectual property rights (including copyright
> and patent rights)  in any Modifications to Squiz.Net including
> copyright in any compilation comprised of any part of the original
> source code of the Software and Your Modifications to the Software. If
> you agree to assign the copyright of Your Modifications, Squiz will
> grant You and every other user of the Software a perpetual,
> world-wide, royalty-free, non-revokable, non-exclusive licence to use
> the Modifications.

If "you are expected" means that it is requested, but not required,
that's fine.
If it instead means that this a condition on getting the permission to
modify and distribute modifications, then it's clearly non-free
(unacceptable restriction on modifications, fails DFSG#3).

I'm not sure which is the case...

> 
> 2.5 You agree to waive all moral rights that You may have in any
> Modifications You make. You consent to the use of Your Modifications
> by Squiz.Net or any other user under a licence on the terms of this or
> another substantially similar licence, even if you might regard that
> use as derogatory treatment under moral rights laws.

AFAIK, this is unenforceable, because moral rights are inalienable in 
jurisdictions where they are present.
At least in Italy, AFAICT, authors are granted some moral rights and
they cannot waive or transfer them, even if they want to.

[...]
> 2.7 If the assignment in clause 2.4 is ineffective or does not occur
> for any reason, You grant to Squiz.Net a royalty free, perpetual,
> worldwide licence to use all intellectual property rights You have in
> all Modifications to the Software, including the right to grant
> licences to others on the terms of this or another substantially
> similar Licence.

This may be regarded as a fee for the permission to modify.
It may fail DFSG#3, since I'm not allowed to distribute modifications to
Squiz.Net "under the same terms as the license of the original
software": I must grant to them more permissions than the ones they
granted me.

Note however that this looks more or less similar to QPL's clause 3b,
which I consider non-free, but, IIRC, didn't get clear consensus on
debian-legal when we discussed it on July and August 2004 (see the long
threads about ocaml, QPL and the DFSG).
Actually, AFAIR, ocaml is currently in main under an amended QPL that
solves the other issues (QPL's clause 3a, 6c and choice of venue), but
with clause 3b unaltered.
Unfortunately packages.debian.org is down at the moment, so I cannot
easily check (without installing ocaml)...

> 
> 2.8 You must Notify Squiz.Net within 30 days of making any
> Modifications even if You do not intend to distribute those
> Modifications. Notify is defined in Clause 4.2 below. If Your
> Modifications are incomplete, You must still Notify Squiz of the
> status of your progress not less frequently than once every 30 days.
> If You do not Notify Squiz.Net of Modifications You have made
> (complete or not) within 30 days, Squiz.Net may deem that you have
> opted to limit your obligations in accordance with Clause 3 and as
> such Squiz.Net may reasonably charge You the consideration indicated
> in Clause 3.

 W h a t ? ! ?

Have I to notify Squiz.Net even each time I go to the toilet?

This is clearly non-free, as it's an unacceptable restriction on
modifications (DFSG#3), fails the Dissident Test and the Desert Island
Test.

> 
> 2.9 Squiz may choose to publish any notice you provide in accordance
> with Clause 2.8 on its website or elsewhere for the benefit of other
> users of the Software. You hereby grant Squiz.Net the right to publish
> Your notice where We see fit. You will not charge Squiz.Net any fee
> for this right.

This makes clause 2.8 even worse than it was, if possible...

> 
> 2.10 You are obliged to promptly provide a copy of any Modifications
> You make to any other party that requests a copy of Your Modifications
> and in a format reasonably requested by them. You may not charge any
> fee for complying with this obligation except for the reimbursement of
> reasonable costs. If you provide Squiz.Net with a copy of Your
> Modifications and Squiz.Net make Your Modifications available for
> download from Our website, then this will be deemed to satisfy the
> requirements of this clause.

This is forced distribution and effectively denies the right to private
modifications.
I'm obliged to disclose any private modification some other party is
interested in; even I'm not satisfied with the result, even if I think
it would harm my reputation (because my modification sucks or for
similar reasons).

This is definitely non-free.

> 
> 3. Option to Limit Obligation
> 3.1 In return for a mutually agreed consideration, Squiz.Net may, at
> its own discretion and without requirement, choose to conditionally
> release You from some of Your obligations under this Licence.

How nice...

> Specifically, Squiz.Net may choose to conditionally waive Your
> obligation to:
[...]
> For this Clause to operate, you must:
> 
> (i)  have the written consent of Squiz.Net;
> 
> (ii)  adhere to all of the conditions of Squiz.Net's written consent;
> and
> 
> (iii)  have paid the agreed consideration in full.

I guess we do not have any written consent.
Anyway most of Debian users would not have such a written consent...

[...]
> 4.2 Definitions
[...]
> Modifications means any alterations, additions, enhancements,
> extensions, modules, developments, versions, releases, corrections,
> fixes, Related Documentation, adaptations, translations and derivative
> works of that software (collectively called), whether in source or
> object code.

Related Documentation is considered a Modification!
Even when it's not a derivative work!
This license seems to try and contaminate other software (maybe it fails
DFSG#9).

[...]
> Notify means
[...]

Notify means essentially that you must surrender your right to privacy!
:-(

[...]
> 4.14 Termination
> 
> This Licence and the rights granted to You by Squiz.Net, in particular
> those rights granted by Clauses 1.1 and 1.2, will terminate
> automatically if:
[...]
> (b)  You initiate or threaten legal proceedings of any kind against
> Squiz.Net;

In other words I must waive my right to sue Squiz.Net for any reason...
This is a fee for the permissions I am granted by Squiz.Net.
They can start doing nasty things to me and I cannot sue them, unless I
can afford the license termination...
Again non-free: it's a significant restriction I must accept in order to
be granted any rights on the Software (I'm also thinking about the
Tentacles of Evil Test...).


So, in summary, this license is awfully non-free.
I would rather not touching this piece of software with a 3 meter
pole...

-- 
    :-(   This Universe is buggy! Where's the Creator's BTS?   ;-)
......................................................................
  Francesco Poli                             GnuPG Key ID = DD6DFCF4
 Key fingerprint = C979 F34B 27CE 5CD8 DC12  31B5 78F4 279B DD6D FCF4

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