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

Short summary, two potential freeness issues:
      * the contributor indemnification clause,
      * the patent retaliation clause.

Le vendredi 21 septembre 2007 à 00:03 +1000, Ben Finney a écrit :

This section is OK.


> 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.

It seems reasonable enough, we have accepted much more intrusive things.


This section as a whole is quite annoying and badly worded. First of
all, commercial distribution is not correctly defined.

> 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. In order to qualify, an Indemnified Contributor must: a)
> promptly notify the Commercial Distributor in writing of such claim,
> and b) allow the Commercial Distributor to control, and cooperate with
> the Commercial Distributor in, the defense and any related settlement
> negotiations. The Indemnified Contributor may participate in any such
> claim at its own expense. 

This clause is really borderline. It could be seen as an additional
cost, but it clearly protects only against consequences of the
distributor's own actions, something for which a contributor shouldn't
be liable anyway.

> For example, a Distributor might include the Program in a commercial
> product offering, Product X. That Distributor is then a Commercial
> Distributor. If that Commercial Distributor then makes performance
> claims, or offers warranties related to Product X, those performance
> claims and warranties are such Commercial Distributor's responsibility
> alone. Under this section, the Commercial Distributor would have to
> defend claims against the Contributors related to those performance
> claims and warranties, and if a court requires any Contributor to pay
> any damages as a result, the Commercial Distributor must pay those
> damages. 

... and the contributor would have to go to court to obtain
indemnification according to this clause, etc.


Usual blablah.


> 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. 

Patent retaliation clause, applicable to patents unrelated to the
software. IIRC this was already declared non-free.

> This Agreement is governed by the laws of the State of New York and
> the intellectual property laws of the United States of America. 

Choice of law, OK.

> 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. 

I'm not sure I understand what this clause means. What if there is no
jury for the trial?

: :' :      We are debian.org. Lower your prices, surrender your code.
`. `'       We will add your hardware and software distinctiveness to
  `-        our own. Resistance is futile.

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