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Re: is the "lucent public license" DFSG-free?

Ben Finney <bignose+hates-spam@benfinney.id.au> writes:

> Stefano Zacchiroli <zack@debian.org> writes:
> > [ please cc-me on replies, I'm not subscribed, thanks! ]
> Done.

> =====
> Lucent Public License Version 1.0
> ...
> a.Subject to the terms of this Agreement, each Contributor hereby
> grants Recipient a non-exclusive, worldwide, royalty-free copyright
> license to reproduce, prepare derivative works of, publicly display,
> publicly perform, distribute and sublicense the Contribution of such
> Contributor, if any, and such derivative works, in source code and
> object code form. 

Appears to grant all the necessary permissions for the work. Good.

> b.Subject to the terms of this Agreement, each Contributor hereby
> grants Recipient a non-exclusive, worldwide, royalty-free patent
> license under Licensed Patents to make, use, sell, offer to sell,
> import and otherwise transfer the Contribution of such Contributor, if
> any, in source code and object code form. The patent license granted
> by a Contributor shall also apply to the combination of the
> Contribution of that Contributor and the Program if, at the time the
> Contribution is added by the Contributor, such addition of the
> Contribution causes such combination to be covered by the Licensed
> Patents. The patent license granted by a Contributor shall not apply
> to (i) any other combinations which include the Contribution, nor to
> (ii) Contributions of other Contributors. No hardware per se is
> licensed hereunder. 

Strange to be putting patent terms into a copyright license, but I
suppose it's less uncommon these days to try to combine everything
into an űberlicense.

> c. ... As a condition to exercising the rights and licenses granted
> hereunder, each Recipient hereby assumes sole responsibility to
> secure any other intellectual property rights needed, if any. For
> example, if a third party patent license is required to allow
> Recipient to distribute the Program, it is Recipient's
> responsibility to acquire that license before distributing the
> Program.

This is a restriction that could make the work non-GPL-compatible. I
don't think it fails the DFSG though. Maybe okay.

> ...
> A. Distributor may choose to distribute the Program in any form under
> this Agreement or under its own license agreement, provided that: 
> a. ...
> b. ...
> c. ...

None of these conditions appear to impose non-free restrictions. Good.

> B. Each Distributor must include the following in a conspicuous
> location in the Program: 
> Copyright (C) 2003, Lucent Technologies Inc. and others. All Rights
> Reserved.

So long as "in the Program" can mean "in the source code to the
program" and no requirement further than that. Maybe okay.

> C. In addition, each Contributor must identify itself as the
> originator of its Contribution, if any, and manifest its intent that
> the additions and/or changes be a Contribution, in a manner that
> reasonably allows subsequent Recipients to identify the originator of
> the Contribution. Once consent is granted, it may not thereafter be
> revoked. 

Requiring attribution and clear indication of changes are both
definitely DFSG-free. Good.

> Commercial distributors of software may accept certain
> responsibilities with respect to end users, business partners and the
> like. While this license is intended to facilitate the commercial use
> of the Program, the Distributor who includes the Program in a
> commercial product offering should do so in a manner which does not
> create potential liability for Contributors. Therefore, if a
> Distributor includes the Program in a commercial product offering,
> such Distributor ("Commercial Distributor") hereby agrees to defend
> and indemnify every Contributor ("Indemnified Contributor") against
> any losses, damages and costs (collectively "Losses") arising from
> claims, lawsuits and other legal actions brought by a third party
> against the Indemnified Contributor to the extent caused by the acts
> or omissions of such Commercial Distributor in connection with its
> distribution of the Program in a commercial product offering. The
> obligations in this section do not apply to any claims or Losses
> relating to any actual or alleged intellectual property
> infringement. ...

This appears to be an entirely non-free restriction. Bad.

Disclaiming all warranty for the licensor is fine; I think requiring
that a redistributor accept the burden to act legally on one's behalf
is too far for the licensor to ask.

> ...
> If Recipient institutes patent litigation against a Contributor with
> respect to a patent applicable to software (including a cross-claim or
> counterclaim in a lawsuit), then any patent licenses granted by that
> Contributor to such Recipient under this Agreement shall terminate as
> of the date such litigation is filed. In addition, if Recipient
> institutes patent litigation against any entity (including a
> cross-claim or counterclaim in a lawsuit) alleging that the Program
> itself (excluding combinations of the Program with other software or
> hardware) infringes such Recipient's patent(s), then such Recipient's
> rights granted under Section 2(b) shall terminate as of the date such
> litigation is filed. 

Appears to be attempting the same patent judo as the GPL. Presumably
free to the extent it's free for a GPL work, but I hesitate to judge.

> ... If all Recipient's rights under this Agreement terminate,
> Recipient agrees to cease use and distribution of the Program as
> soon as reasonably practicable. ...

Asking for distribution to cease in absence of this license is fine,
since that's a right reserved to the copyright holder.

Asking for "use" to cease is not fine, since that's *not* a right
reserved to the copyright holder; you don't need a copyright license
to *use* a work you already legally possess.

> Lucent Technologies Inc. may publish new versions (including
> revisions) of this Agreement from time to time. Each new version of
> the Agreement will be given a distinguishing version number. The
> Program (including Contributions) may always be distributed subject
> to the version of the Agreement under which it was received. In
> addition, after a new version of the Agreement is published,
> Contributor may elect to distribute the Program (including its
> Contributions) under the new version.

Appears to be cribbed from GPLv2.

> No one other than Lucent has the right to modify this
> Agreement.

I believe even Lucent doesn't have the right to modify the agreement
on a work already received under this license.

> Except as expressly stated in Sections 2(a) and 2(b) above,
> Recipient receives no rights or licenses to the intellectual
> property of any Contributor under this Agreement, whether expressly,
> by implication, estoppel or otherwise. All rights in the Program not
> expressly granted under this Agreement are reserved.

Any copyright license that talks about intellectual property is doomed
to be talking in broad ambiguities. There's no clear referent of
"intellectual property", so it's impossible to say exactly what this
applies to. Best avoided entirely.

> This Agreement is governed by the laws of the State of New York and
> the intellectual property laws of the United States of America. No
> party to this Agreement will bring a legal action under this Agreement
> more than one year after the cause of action arose. Each party waives
> its rights to a jury trial in any resulting litigation. 

Choice of law has been judged DFSG-free on many works before. Seems okay.

> =====

General comments:

Has several clauses that are either definitely or possibly
non-free. On that basis I think works licensed this way are unsuitable
for Debian.

Discusses the term "intellectual property" as though that term had an
unambiguous referent. It doesn't, and any statement using that term
cannot be understood without clarifying exactly what is being referred
to. Definite lawyerbomb unless those references are removed or
rewritten to be unambiguous.

Appears to be a clumsy copy of the GPLv2 with rewritten and extra
poorly-understood clauses. I'd recommend they simply re-license the
work under a better-understood, peer-reviewed free software license.

 \     "Our task must be to free ourselves from our prison by widening |
  `\    our circle of compassion to embrace all humanity and the whole |
_o__)                       of nature in its beauty." —Albert Einstein |
Ben Finney

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