Nigel, thanks for your suggestion. I am still concerned because "consideration"
can sometimes be very painful. (Example: "I'll license you my open source
software including all of my patents, but you must give me rights to all of
your patents.")
The issue is who – if anyone – will pay that consideration? The OSD doesn't
allow any downstream licensee (of a copy or derivative work) to be obligated to
pay anything at all for her own copies, even if she later sells them to third
parties. That downstream licensee needn't even share her own software, although
she must obey non-discriminatory license conditions such as copyleft and
attribution and access to the source code. Those copies are "free" in all
monetary, or monetarily-equivalent, ways.
So, who pays consideration in an open source transaction? No downstream
licensee is obligated to share her own software or pay any other consideration.
Requiring her to do so would be requiring extra consideration for that open
source (free) work. She may have accepted non-discriminatory conditions to
copyleft and attribute (etc.) her copies and derivative works. But she won't
pay one peppercorn for the right to make those copies and derivative works.
Hence the definition of "open source software" including a prohibition on
consideration paid by downstream licensees to distribute; that protects
downstream users from having to pay for free software.
Why do I say that "the sharing of open source software among users worldwide is
consideration enough"? Who pays it? There is a worldwide community of millions
of people who share their open source software ("licensors") who impose and
accept license conditions to share their open source software with the world;
others share it for free without copyleft and other license conditions.
But those millions of people never collect consideration for those downstream
copies or derivative works. Sharing alone (with non-discriminatory license
conditions) is consideration enough to share.
In all other respects, the payment of money (or equivalent) by a licensee to a
licensor for a single copy of an open source work is completely legitimate.
(Example: "Buy one copy from the developer for $1M, sell 2 million copies at $1
each.")
All that said, I'm more than willing to give permission to this online
community to improve this definition in any way. CC0 perhaps?
“Open source software” means software actually distributed under terms that
grant a copyright and patent license from all contributors to the software for
every licensee to access and use the complete source code, make copies of the
software or derivative works thereof and, without payment of royalties or other
consideration, to distribute the unmodified or modified software.
/Larry
From: Tzeng, Nigel H. <[email protected]>
Sent: Friday, December 28, 2018 9:37 AM
To: [email protected]; [email protected]
Subject: Re: [License-discuss] Proposed license decision process
Larry,
If there is non-monetary consideration present in open source licenses then
then “without payment of royalties or other consideration” would exclude most,
if not nearly all, OSI approved licenses using your definition.
The part of the definition we all would likely agree with would be “without
payment of royalties”. How much “other consideration” is too much seems to be
subject to debate. “BY” seems safe. “SA” seems safe. SSPL? Not so much.
Some forms of consideration is okay, even good. Others become overreach.
Have a Happy New Year!
Nigel
From: License-discuss <[email protected]
<mailto:[email protected]> > on behalf of
"[email protected] <mailto:[email protected]> " <[email protected]
<mailto:[email protected]> >
Reply-To: "[email protected] <mailto:[email protected]> "
<[email protected] <mailto:[email protected]> >,
"[email protected]
<mailto:[email protected]> "
<[email protected]
<mailto:[email protected]> >
Date: Friday, December 28, 2018 at 12:04 PM
To: "[email protected]
<mailto:[email protected]> "
<[email protected]
<mailto:[email protected]> >
Subject: Re: [License-discuss] Proposed license decision process
Regarding "consideration":
The sharing of open source software among users worldwide is consideration
enough for all of us to enforce our licenses!
Bruce Perens is right. Please comment on THAT. Kevin and Florian worry too much
about simple concepts about "consideration" in U.S. and U.K. law.
/Larry
From: License-discuss <[email protected]
<mailto:[email protected]> > On Behalf Of Bruce
Perens
Sent: Friday, December 28, 2018 8:38 AM
To: [email protected]
<mailto:[email protected]>
Subject: Re: [License-discuss] Proposed license decision process
We went over this in Jacobsen v. Katzer. I testified (and the court agreed)
that there _was_ consideration in Open Source licenses, although it was
non-monetary.
Thanks
Bruce
On Fri, Dec 28, 2018 at 4:39 AM Kevin P. Fleming <[email protected]
<mailto:kevin%[email protected]> > wrote:
One of my colleagues (who strongly prefers public domain dedications
and permissive licenses) recently indicated to me that in his opinion
as a software author, the obligation to distribute source code
qualified as 'consideration', since it requires a tangible (to some
degree) action on the part of the licensee. I had never thought about
it this way, but I can definitely see how someone could arrive at that
conclusion, and this seems to align with Florian's concern.
On Thu, Dec 27, 2018 at 9:14 AM Florian Weimer <[email protected]
<mailto:[email protected]> > wrote:
>
> * Lawrence Rosen:
>
> > But let us nevertheless agree on a pragmatic definition of "open
> > source software".
>
> > “Open source software” means software actually distributed under terms
> > that grant a copyright and patent license from all contributors to the
> > software for every licensee to access and use the complete source
> > code, make copies of the software or derivative works thereof and,
> > without payment of royalties or other consideration, to distribute the
> > unmodified or modified software.
>
> I think “consideration” is a bad word, it's difficult to understand
> for those of us who were not brought up in the English legal
> tradition.
>
> I'd be worried that “no other consideration” would exclude copyleft
> licenses, or more broadly speaking, licenses that use copyright as a
> tool to get the licensee to perform any additional action that is not
> inherently tied to exploitation of the copyright itself.
>
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