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Re: Is the Sybase Open Watcom License ok?

Jason Spiro <jasonspiro4+news@gmail.com>
> Is the license pasted below OK?

I don't think so.  It seems to contradict itself - resulting in a
possible termination clause.  It also requires long-term distribution,
discriminates against some commercial activities and attempts to enforce
patents unrelated to this software (or any software).  At best, it
seems unclear, so I'd advise seeking clarification of 1, 2.1(b), 2.1(c),
2.2(e), 6, 12.1(c), 13.5(b).  After that, it depends how you and
ftpmasters feel about everyone travelling to California.

> It is OSI-approved, but someone on
> debian-devel mentioned there were many problematic bits, including
> 2.2(c), and advised me to post it here.

The debian-devel thread is visible at

Sadly, the failed Open Source Initiative seems to approve licences
far too readily these days.

> I hope to package openwatcom, a C/C++ IDE that produces efficient DOS,
> Linux, and Windows code and includes a superb debugger.

That is ITP bug 376431

> Sybase Open Watcom Public License version 1.0
> 1. General; Definitions.  This License applies only to the following
> software programs:  the open source versions of Sybase's Watcom C/C++
> and Fortran compiler products ("Software"), which are modified versions
> of, with significant changes from, the last versions made commercially
> available by Sybase.  As used in this License:

Does this definition of licence restrict the permitted derived works?

> 1.1 "Applicable Patent Rights" mean: [...]

The inclusion of patent rights in a copyright licence worries me.

> 2. Permitted Uses; Conditions & Restrictions.Subject to the terms and
> conditions of this License, Sybase hereby grants You, effective on the
> date You accept this License and download the Original Code, a
> world-wide, royalty-free, non-exclusive license, to the extent of
> Sybase's Applicable Patent Rights and copyrights covering the Original
> Code, to do the following:
> 2.1 You may use, reproduce, display, perform, modify and distribute
> Original Code, with or without Modifications, solely for Your internal
> research and development and/or Personal Use, provided that in each
> instance:
> (a) You must retain and reproduce in all copies of Original Code the
> copyright and other proprietary notices and disclaimers of Sybase as
> they appear in the Original Code, and keep intact all notices in the
> Original Code that refer to this License; and
> (b) You must retain and reproduce a copy of this License with every copy
> of Source Code of Covered Code and documentation You distribute, and You
> may not offer or impose any terms on such Source Code that alter or
> restrict this License or the recipients' rights hereunder, except as
> permitted under Section 6.

This combines with 1 above to make me wonder even more whether the
permitted derived works are limited.

> (c) Whenever reasonably feasible you should include the copy of this
Lawyerbomb, especially about something as icky as click-wrap.

> License in a click-wrap format, which requires affirmative acceptance by
> clicking on an "I accept" button or similar mechanism.  If a click-wrap
> format is not included, you must include a statement that any use
> (including without limitation reproduction, modification or
> distribution) of the Software, and any other affirmative act that you
> define, constitutes acceptance of the License, and instructing the user
> not to use the Covered Code in any manner if the user does not accept
> all of the terms and conditions of the License.
> 2.2 You may use, reproduce, display, perform, modify and Deploy Covered
> Code, provided that in each instance:
> (a) You must satisfy all the conditions of Section 2.1 with respect to
> the Source Code of the Covered Code;
> (b) You must duplicate, to the extent it does not already exist, the
> notice in Exhibit A in each file of the Source Code of all Your
> Modifications, and cause the modified files to carry prominent notices
> stating that You changed the files and the date of any change;
> (c) You must make Source Code of all Your Deployed Modifications
> publicly available under the terms of this License, including the
> license grants set forth in Section 3 below, for as long as you Deploy
> the Covered Code or twelve (12) months from the date of initial
> Deployment, whichever is longer.  You should preferably distribute the
> Source Code of Your Deployed Modifications electronically (e.g.
> download from a web site);

This was noted on debian-devel as a problem and I think I agree.  It's
unusual in that it's unlikely to be a practical problem unless ftpmasters
remove the package, but the time differences probably make it fail DFSG.

> (d) if You Deploy Covered Code in object code, executable form only, You
> must include a prominent notice, in the code itself as well as in
> related documentation, stating that Source Code of the Covered Code is
> available under the terms of this License with information on how and
> where to obtain such Source Code; and
> (e) the object code form of the Covered Code may be distributed under
> Your own license agreement, provided that such license agreement
> contains terms no less protective of Sybase and each Contributor than
> the terms of this License, and stating that any provisions which differ
> from this License are offered by You alone and not by any other party.

** This isn't section 6.  Does this disagree with 2.1(b)?  What is the
effect on the licence?

> 3. Your Grants.  In consideration of, and as a condition to, the
> licenses granted to You under this License, You hereby grant to Sybase
> and all third parties a non-exclusive, royalty-free license, under Your
> Applicable Patent Rights and other intellectual property rights (other
> than patent) owned or controlled by You, to use, reproduce, display,
> perform, modify, distribute and Deploy Your Modifications of the same
> scope and extent as Sybase's licenses under Sections 2.1 and 2.2.

Forced upstream patent licensing?

> 6. Additional Terms.  You may choose to offer, and to charge a fee for,
> warranty, support, indemnity or liability obligations and/or other
> rights consistent with this License ("Additional Terms") to one or more
> recipients of Covered Code.  However, You may do so only on Your own
> behalf and as Your sole responsibility, and not on behalf of Sybase or
> any Contributor.  You must obtain the recipient's agreement that any
> such Additional Terms are offered by You alone, and You hereby agree to
> indemnify, defend and hold Sybase and every Contributor harmless for any
> liability incurred by or claims asserted against Sybase or such
> Contributor by reason of any such Additional Terms.

As I noted about the CDDL in September 2005, this restricts the commercial
operations of licensees, even when other agreements authorise them
to offer services on behalf of Sybase or other Contributors.

> 12.1 Termination.  This License and the rights granted hereunder will
> terminate: [...]
> (b) immediately in the event of the circumstances described in Section
> 13.5(b); or

See below.

> (c) automatically without notice if You, at any time during the term of
> this License, commence an action for patent infringement (including as a
> cross claim or counterclaim) against Sybase or any Contributor.

This copyright licence attempts to enforce all Sybase's and Contributors'
patents, whether applicable or not.  All patents.  Not just software ones.

> 13.5 Severability. [...] (b) Notwithstanding the foregoing, if
> applicable law prohibits or restricts You from fully and/or specifically
> complying with Sections 2 and/or 3 or prevents the enforceability of
> either of those Sections, this License will immediately terminate and
> You must immediately discontinue any use of the Covered Code and destroy
> all copies of it that are in your possession or control.

The licence terminates if sections 2 or 3 are found to be buggy.
I think this combines with ** above to make a nice lawyerbomb.

> 13.6 Dispute Resolution.  Any litigation or other dispute resolution
> between You and Sybase relating to this License shall take place in the
> Northern District of California, and You and Sybase hereby consent to
> the personal jurisdiction of, and venue in, the state and federal courts
> within that District with respect to this License.  The application of
> the United Nations Convention on Contracts for the International Sale of
> Goods is expressly excluded.

Choice of venue.  Horrible and controversial.  I think it's a type of fee.

Hope that helps,
My Opinion Only: see http://people.debian.org/~mjr/
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