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Re: Analysis of the Academic Free License ("AFL") v3.0

On Sun, 30 Sep 2012 17:12:08 +0200 Francesco Poli wrote:

> My personal comments will follow shortly.

My own personal analysis of this license is included below.

> Academic Free License ("AFL") v. 3.0
>  3) Grant of Source Code License. The term "Source Code" means the
>     preferred form of the Original Work for making modifications to it
>     and all available documentation describing how to modify the
>     Original Work.

This is problematic, as was in AFL v2.1: if I want to distribute
"Source Code", have I to ship *every* single piece of available
documentation that describes how to modify the Original Work?
Even independently written documentation?
Does this satisfy DFSG#9?

>     Licensor agrees to provide a machine-readable copy
>     of the Source Code of the Original Work along with each copy of
>     the Original Work that Licensor distributes. Licensor reserves the
>     right to satisfy this obligation by placing a machine-readable
>     copy of the Source Code in an information repository reasonably
>     calculated to permit inexpensive and convenient access by You for
>     as long as Licensor continues to distribute the Original Work.

This is weird, as was in AFL v2.1: Licensor promises to distribute
source, but it seems that there is no requirement for the *licensee*
to do so.
This could weaken my concerns above...

The license indeed does not seem to attempt implementing a copyleft
mechanism, hence the *licensee* seems to have permission to distribute
non-source forms, without providing the corresponding source code.

>  5) External Deployment. The term "External Deployment" means the use,
>     distribution, or communication of the Original Work or Derivative
>     Works in any way such that the Original Work or Derivative Works
>     may be used by anyone other than You, whether those works are
>     distributed or communicated to those persons or made available as
>     an application intended for use over a network. As an express
>     condition for the grants of license hereunder, You must treat any
>     External Deployment by You of the Original Work or a Derivative
>     Work as a distribution under section 1(c).

This is an Affero-like restriction: use through network is assimilated
to distribution.
This means that, among other restrictions, the obligation to obtain
express license acceptance assent from recipients also extends to
remote users (through the network).
I would say that this clause makes other non-free restrictions even

>  6) Attribution Rights. You must retain, in the Source Code of any
>     Derivative Works that You create, all copyright, patent, or
>     trademark notices from the Source Code of the Original Work, as
>     well as any notices of licensing and any descriptive text
>     identified therein as an "Attribution Notice."

This is basically unchanged from AFL v2.1 and concerns me: any section
marked as "Attribution Notice" must be retained. Regardless of what
it actually contains? Looks like some sort of unremovable (or even
possibly unmodifiable?) section...
Seems to conflict with DFSG#3...

As Andrew Suffield commented on AFL v2.1: that's non-free if there
are any significant 'Attribution Notice's.
This is a thinly disguised variation on 'Invariant Sections'.

>  9) Acceptance and Termination. If, at any time, You expressly
>     assented to this License, that assent indicates your clear and
>     irrevocable acceptance of this License and all of its terms and
>     conditions. If You distribute or communicate copies of the
>     Original Work or a Derivative Work, You must make a reasonable
>     effort under the circumstances to obtain the express assent of
>     recipients to the terms of this License.

This is almost unchanged from AFL v2.1 and is my main concern:
distributors must obtain express license acceptance assent from
This is non-free, I would say. DFSG#1?
Because of the Affero-like clause, this assent must be obtained from
remote users, too.
This makes it even worse.

As MJ Ray commented on AFL v2.1, this is also a practical problem
for Debian mirrors, regardless of any DFSG consideration.

> 10) Termination for Patent Action. This License shall terminate
>     automatically and You may no longer exercise any of the rights
>     granted to You by this License as of the date You commence an
>     action, including a cross-claim or counterclaim, against Licensor
>     or any licensee alleging that the Original Work infringes a
>     patent. This termination provision shall not apply for an action
>     alleging patent infringement by combinations of the Original Work
>     with other software or hardware.

This is problematic, even though I've seen clauses that are even worse.
There is no clear consensus about the DFSG-freeness of such a clause.
Some think clauses like this are OK, others think they are non-free,
and/or too broad.

> 11) Jurisdiction, Venue and Governing Law. Any action or suit relating
>     to this License may be brought only in the courts of a
>     jurisdiction wherein the Licensor resides or in which Licensor
>     conducts its primary business, and under the laws of that
>     jurisdiction excluding its conflict-of-law provisions.

This is choice of law (acceptable), but also choice of venue (non-free
in many debian-legal regulars' opinion, but not in everyone's).

>     The
>     application of the United Nations Convention on Contracts for the
>     International Sale of Goods is expressly excluded.

This Convention allows its own exclusion, if both parties agree to
exclude it (as was explained to me by Arnoud Engelfriet, during the
AFL v2.1 analysis). Hence, this exclusion is possible, but this license
is intended to a common-law contract, rather than a unilateral grant
(as confirmed by other clauses, too).

Being a common-law-contract is troublesome, for the licensee could
result in having given up a freedom that he/she had before accepting the
contract. Even if the triggering clause is subtle and we don't notice
the issue.
With a unilateral license grant, we are guaranteed that no pre-existing
right can disappear upon the act of copying, distributing or modifying
and distributing...

> 12) Attorneys' Fees. In any action to enforce the terms of this
>     License or seeking damages relating thereto, the prevailing party
>     shall be entitled to recover its costs and expenses, including,
>     without limitation, reasonable attorneys' fees and costs incurred
>     in connection with such action, including any appeal of such
>     action. This section shall survive the termination of this
>     License.

This section is basically unchanged from AFL v2.1: Andrew Suffield
commented that this is probably non-free ("Greedy lawyer bitch-clause").

 New GnuPG key, see the transition document!
..................................................... Francesco Poli .
 GnuPG key fpr == CA01 1147 9CD2 EFDF FB82  3925 3E1C 27E1 1F69 BFFE

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