Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-05 Thread Francesco Poli 
On Thu, 4 Nov 2004 22:54:55 -0500 John Cowan wrote:

> You are already distributing code under the MPL license, which is a
> contract, in debian-stable main.

IIRC, the Mozilla relicensing is underway (though a bit slowly). Debian
is therefore waiting for any NPL/MPL-related issues to be solved.


P.S.: please do not Cc: me, as I am a debian-legal subscriber. Just
reply to the mailing list (and any other addresses in the
Mail-Followup-To: header).  Thanks!   :)

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Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-05 Thread Andrew Suffield 
On Tue, Nov 02, 2004 at 09:33:51PM -0500, Glenn Maynard wrote:
> > > However, it seems that a similar possible problem exists with contracts:
> > > that they're not binding without consideration.  
> > 
> > "Consideration is as much a matter of form as seal."  Any benefit to the
> > licensee, however slight, constitutes consideration.  A court has to go
> > out of its way to find that there is no consideration whatever.  (IANAL.)
> 
> This is an assertion of how the law works, I've seen contradicting assertions,
> and I've seen claims that it may be very different depending on where you are
> (that contract law isn't nearly as uniform as copyright law, which does vary
> but tends to sit in a couple major camps).

This is acutely true; copyright law is driven by the Berne convention,
to which most major nations are signatories. There is no similar
construct for copyright law, causing it to be all over the map. Within
the EU it is relatively consistent; within the US it is internally
consistent but distinct in several respects. Many other parts of the
world have weird and wacky contract laws.

Truly international contracts (rather than ones just between two
parties in two selected nations) are probably impossible. Certainly
they're lawyer bait. Let's not go there.

-- 
  .''`.  ** Debian GNU/Linux ** | Andrew Suffield
 : :' :  http://www.debian.org/ |
 `. `'  |
   `- -><-  |


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Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-05 Thread Anthony W. Youngman 
In message <[EMAIL PROTECTED]>, Glenn Maynard 
<[EMAIL PROTECTED]> writes

This isn't a legal principle, it's an assertion.  Why is my grant of
copyright license revokable?  I just can't find comparisons to "permission
to trespass" very convincing.  (I've also heard things along the lines
of "allow people to trespass on your land for long enough and you can no
longer prevent it"--some kind of implicit permission--and I'm very sure
that has no relation to copyright law.)


Under UK law, you lose title to the land ...

There's been a couple of cases in the news recently, and my mother is 
trying to do exactly that with a bit of land too. That bit may only be 
1ft wide by 10ft long, but it's strategically placed where it will cause 
a lot of nuisance to property speculators...


Cheers,
Wol
--
Anthony W. Youngman - wol at thewolery dot demon dot co dot uk
HEX wondered how much he should tell the Wizards. He felt it would not be a
good idea to burden them with too much input. Hex always thought of his reports
as Lies-to-People.
The Science of Discworld : (c) Terry Pratchett 1999

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-04 Thread Don Armstrong 
On Thu, 04 Nov 2004, John Cowan wrote:
> Francesco Poli scripsit:
> > And that is probably another issue with contract-ish licenses: who is
> > going to accept contracts? ftp-masters and all the mirror operators?
> > That sounds problematic...
> 
> You are already distributing code under the MPL license, which is a
> contract, in debian-stable main.

Hold on a second. You claim that the Mozilla Public License version
1.1 is a contract, not a license?

That's a totally new one to me.

Care to explain to us what exactly brought you to that conclusion?


Don Armstrong

-- 
Q: What Can a Thoughtful Man Hope for Mankind on Earth, Given the
Experience of the Past Million Years?
A: Nothing.
 -- Bokonon _The Fourteenth Book of Bokonon_ (Vonnegut _Cats Cradle_)

http://www.donarmstrong.com  http://rzlab.ucr.edu

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-04 Thread John Cowan 
Francesco Poli scripsit:

> And that is probably another issue with contract-ish licenses: who is
> going to accept contracts? ftp-masters and all the mirror operators?
> That sounds problematic...

You are already distributing code under the MPL license, which is a
contract, in debian-stable main.   You also have eclipse code in
debian-unstable contrib, which is under the CPL, another contract.
(To be in contrib it has to be free.)

So Debian has either solved the problem of free licenses that are
contracts, or has decided to ignore it.  So why pick on us and our
little package?

-- 
"Take two turkeys, one goose, four  John Cowan
cabbages, but no duck, and mix them http://www.ccil.org/~cowan
together. After one taste, you'll duck  [EMAIL PROTECTED]
soup the rest of your life."http://www.reutershealth.com
--Groucho

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-04 Thread Francesco Poli 
On Thu, 4 Nov 2004 11:49:12 -0500 John Cowan wrote:

> Francesco Poli scripsit:
> 
> > a) releasing the work under a real copyright license grant (such as
> > the Expat a.k.a. MIT license http://www.jclark.com/xml/copying.txt)
> 
> The AFL *is* a "real copyright license grant"; it already grants
> everything the MIT license does and more.

Well, the AFL is a copyright license grant *and* a contract.
By "real" copyright license grant, I meant something that is a copyright
license grant and nothing else.

[...]
> > In that case Debian would (probably) not accept the contract and
> > simply distribute under the Expat license.
> 
> Nothing requires Debian to become a licensor just because they are
> distributing AFLed code, though Debian would have that option.

But, if it's true (as you seem to say) that Debian can legally
distribute FIGlet under (say) the Expat license, with no mention to the
original license at all, why not making this much clearer by splitting
the AFL into an optional contract and a simple free non-copyleft license
(just like the Expat license). 

> (Is Debian a legal person?)

I don't think so.
And that is probably another issue with contract-ish licenses: who is
going to accept contracts? ftp-masters and all the mirror operators?
That sounds problematic...

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Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-04 Thread John Cowan 
Glenn Maynard scripsit:

> If you can point to a US statute or case law echoing the above, or in
> some way suggesting that it's relevant to the US, then it might help
> give me the specific question for the FSF that I'm hunting for.

Well, Lynn v. Raney (1964 OK 212, 400 P.2d 805) is a real-property case, online 
at
http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?citeID=36740
and the memorandum opinion online at
http://www.ded.uscourts.gov/SLR/Opinions/May2001/00-1013.PDF is a
patent case.  Both tell us, as a matter of black-letter law, that a
bare license is revocable at the will of the licensor.  Outside these
two fields, bare licenses are rare, because most would-be licensees
use lawyers who are careful to make sure any bare licenses on offer are
matured into contracts which they can enforce.

> This isn't a problem that can be fixed with contracts, though--it can
> probably only be fixed by legislation.  (And as it's mostly a "might be
> a problem decades from now for code that's still around", I don't see
> much effort being put to that.)

It exists as a protection for licensors who have made bad bargains, typically
by accepting a contract of adhesion from a publisher.  The same effect was
achieved in pre-1976 law by copyright renewal, but now that that no longer
exists, the recapture-of-copyright provision was inserted into the law instead.

-- 
John Cowan  http://www.ccil.org/~cowan[EMAIL PROTECTED]
To say that Bilbo's breath was taken away is no description at all.  There are
no words left to express his staggerment, since Men changed the language that
they learned of elves in the days when all the world was wonderful. --The Hobbit

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-04 Thread Glenn Maynard 
On Wed, Nov 03, 2004 at 03:26:54PM -0500, John Cowan wrote:
> The whole definition of "bare license" means a license that is unsupported
> by consideration (i.e. not a contract):
> 
>   A bare license must be executed by the party to whom it is given
>   in person, and cannot be made over or assigned by him to another;
>   and, being without consideration, may be revoked at pleasure,
>   as long as it remains executory; 39 Hen. VI. M. 12, page 7;
>   but when carried into effect, either partially or altogether,
>   it can only be rescinded, if in its nature it will admit of
>   revocation, by placing the other side in the same situation
>   in which he stood before he entered on its execution. 8 East,
>   R. 308; Palm. 71; S. C. Poph. 151; S. C. 2 Roll. Rep. 143, 152.
> 
>   --Bouvier (an 1856 public-domain law dictionary)
> 
> Note that the first citation is to a case decided in 1461, which puts it
> comfortably in the root of all common-law jurisdictions, unless explicitly
> overruled by statute (which is unlikely).

If you can point to a US statute or case law echoing the above, or in
some way suggesting that it's relevant to the US, then it might help
give me the specific question for the FSF that I'm hunting for.

(I'm aware that Free Software is global, and the law of jurisdictions
other than the US is relevant, but I have my hands full trying to grasp
my own country's law ...)

> The FSF is well familiar with this.

If they're familiar with it, they should be willing to make it known.  So,
I'll ask them about it.  (If I get around to it, anyway.)

This isn't a problem that can be fixed with contracts, though--it can
probably only be fixed by legislation.  (And as it's mostly a "might be
a problem decades from now for code that's still around", I don't see
much effort being put to that.)

> It's one of the many reasons (or excuses)
> why Daniel Bernstein refuses to release his software under a free license,
> since he says that free licenses claim to grant more rights than are actually
> grantable.  (BTW, Bernstein also grants a bare license to copy his almost
> unmodifiable files, and denies that it is within his power to revoke them,
> though with no argument why.)

I don't find the antics of DJB too interesting, personally.  :)

-- 
Glenn Maynard

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-04 Thread John Cowan 
Francesco Poli scripsit:

> a) releasing the work under a real copyright license grant (such as the
> Expat a.k.a. MIT license http://www.jclark.com/xml/copying.txt)

The AFL *is* a "real copyright license grant"; it already grants
everything the MIT license does and more.

> *and*
> 
> b) offering in parallel an optional `uni-lateral' contract in which the
> copyright holder promises things to anyone that is willing to accept the
> contract.
> 
> 
> In that case Debian would (probably) not accept the contract and simply
> distribute under the Expat license.

Nothing requires Debian to become a licensor just because they are distributing
AFLed code, though Debian would have that option.  (Is Debian a legal person?)

-- 
MEET US AT POINT ORANGE AT MIDNIGHT BRING YOUR DUCK OR PREPARE TO FACE WUGGUMS
John Cowan   http://www.reutershealth.com   [EMAIL PROTECTED]

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-03 Thread Francesco Poli 
On Tue, 2 Nov 2004 21:33:51 -0500 Glenn Maynard wrote:

> It seems that this license is actually doing two fundamentally
> distinct things: granting a license to people to do stuff, and making
> promises from the distributor/licensor.  I think this combination is
> what makes it so confusing:
[...]
> 
> I'm sure there's some way to make this stuff clearer for people used
> to more typical free licenses, but I'm not sure what it is.

Perhaps by

a) releasing the work under a real copyright license grant (such as the
Expat a.k.a. MIT license http://www.jclark.com/xml/copying.txt)

*and*

b) offering in parallel an optional `uni-lateral' contract in which the
copyright holder promises things to anyone that is willing to accept the
contract.


In that case Debian would (probably) not accept the contract and simply
distribute under the Expat license.
And everyone would be happy...


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Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-03 Thread Adam McKenna 
On Wed, Nov 03, 2004 at 03:26:54PM -0500, John Cowan wrote:
> The FSF is well familiar with this.  It's one of the many reasons (or excuses)
> why Daniel Bernstein refuses to release his software under a free license,
> since he says that free licenses claim to grant more rights than are actually
> grantable.  (BTW, Bernstein also grants a bare license to copy his almost
> unmodifiable files, and denies that it is within his power to revoke them,
> though with no argument why.)

Not sure why you refer to his files as "unmodifiable"?  Do you mean because
they are written in a style of C that is unfamiliar to most people?

I don't think he's ever argued that it is not within his power to revoke
distribution rights (in fact, many of his beta packages had expiration dates,
after which distribution was not allowed anymore).  What he has argued is
that since copyright does not cover use, he cannot revoke your right to use
the program after you have legally obtained it.

--Adam
-- 
Adam McKenna  <[EMAIL PROTECTED]>  <[EMAIL PROTECTED]>

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-03 Thread Adam McKenna 
On Wed, Nov 03, 2004 at 10:01:59AM -0500, John Cowan wrote:
> The GPL isn't a contract, everyone agrees on that.  So how can the
> licensor be bound by it?  If EvilCo buys the copyright of Alice's
> GPLed Hummity software, they can announce "No more GPL on Hummity" and then
> sue, say, Bob, who has copied, distributed, or modified after
> hearing (actually or constructively) about the announcement.

The licensor is bound by copyright law.  He cannot distribute the work or
any work based on it without accepting the GPL and abiding by its terms.

--Adam

-- 
Adam McKenna  <[EMAIL PROTECTED]>  <[EMAIL PROTECTED]>

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-03 Thread John Cowan 
Glenn Maynard scripsit:

> He was given permission to do so, and nothing in that permission
> included a condition that the permission may be revoked at will.

The whole definition of "bare license" means a license that is unsupported
by consideration (i.e. not a contract):

A bare license must be executed by the party to whom it is given
in person, and cannot be made over or assigned by him to another;
and, being without consideration, may be revoked at pleasure,
as long as it remains executory; 39 Hen. VI. M. 12, page 7;
but when carried into effect, either partially or altogether,
it can only be rescinded, if in its nature it will admit of
revocation, by placing the other side in the same situation
in which he stood before he entered on its execution. 8 East,
R. 308; Palm. 71; S. C. Poph. 151; S. C. 2 Roll. Rep. 143, 152.

--Bouvier (an 1856 public-domain law dictionary)

Note that the first citation is to a case decided in 1461, which puts it
comfortably in the root of all common-law jurisdictions, unless explicitly
overruled by statute (which is unlikely).

> Well, I found one bit in statute that seems to be what you're referring
> to.  Section 203(c) [1] appears to give a five year window, starting 35
> years after the grant of a license, during which authors can revoke licenses.

[snip]

> Unless somebody finds something that renders this irrelevant to free
> software in the next few days, I'll poke [EMAIL PROTECTED] with this.

The FSF is well familiar with this.  It's one of the many reasons (or excuses)
why Daniel Bernstein refuses to release his software under a free license,
since he says that free licenses claim to grant more rights than are actually
grantable.  (BTW, Bernstein also grants a bare license to copy his almost
unmodifiable files, and denies that it is within his power to revoke them,
though with no argument why.)

-- 
Her he asked if O'Hare Doctor tidings sent from far John Cowan
coast and she with grameful sigh him answered that  www.ccil.org/~cowan
O'Hare Doctor in heaven was. Sad was the man that word  www.reutershealth.com
to hear that him so heavied in bowels ruthful. All  [EMAIL PROTECTED]
she there told him, ruing death for friend so young,
algate sore unwilling God's rightwiseness to withsay.   Ulysses, "Oxen"

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-03 Thread Glenn Maynard 
On Wed, Nov 03, 2004 at 10:01:59AM -0500, John Cowan wrote:
> Sorry, I don't follow this.  How is enforcement involved here?

The example you gave showed a case where you've been promised something
and not given it, and you can't sue to get it.  The copyright license case
is different, since there's nothing in that "promise" that the licensee
might not actually be given that he needs to initiate legal action to
obtain.

> The GPL isn't a contract, everyone agrees on that.  So how can the
> licensor be bound by it?  If EvilCo buys the copyright of Alice's
> GPLed Hummity software, they can announce "No more GPL on Hummity" and then
> sue, say, Bob, who has copied, distributed, or modified after
> hearing (actually or constructively) about the announcement.
> 
> What possible legal theory does Bob have to defend himself from
> the charge of infringement?  I sure don't see any.

He was given permission to do so, and nothing in that permission
included a condition that the permission may be revoked at will.

Well, I found one bit in statute that seems to be what you're referring
to.  Section 203(c) [1] appears to give a five year window, starting 35
years after the grant of a license, during which authors can revoke licenses.

It has a "droit d'auteur"-esque clause: "Termination of the grant may be
effected notwithstanding any agreement to the contrary".  In order to
"protect" the freedom of authors, the law takes away their freedom to
license as they wish.  (Taking away freedom to protect freedom--backfires
again.)

It's limited: it must be served in writing at least two years in advance,
and joint works require "a majority of the authors".

Unless somebody finds something that renders this irrelevant to free
software in the next few days, I'll poke [EMAIL PROTECTED] with this.

[1] 
http://caselaw.lp.findlaw.com/casecode/uscodes/17/chapters/2/sections/section%5F203.html

-- 
Glenn Maynard

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-03 Thread John Cowan 
Glenn Maynard scripsit:

> You were previously talking about "contradicting the AFL", though.  Are
> there actually any cases of this, or is it a practically null set?

Well, I can invent really stoopid licenses that do it, like this:
Alice licenses Yoyo under the AFL; Bob adds his changes, and licenses
it under a license that says "If anything goes wrong or you lose money
with this code, you must sue Alice and not me."  But absent that sort of
nonsense, I think the set is practically null.

> This isn't the same as you claiming you'll give me something, not doing
> so and me suing for it; there's nothing I need to enforce, you're just
> giving up your right for me to not distribute your work.  It's you (the
> licensor) that's doing the enforcing, here: you've granted me permission
> to do something normally prohibited by copyright law.

Sorry, I don't follow this.  How is enforcement involved here?

> Turn it around: what is there about your license that might make it
> revocable?  Is there anything in the law that suggests this, that one
> could point the FSF at: "this looks like a problem; is it?"  Given the
> vague "this might be a problem, but I don't really know", it's hard to
> even formulate a decent question.  (If we had one, we could try asking
> the FSF--asking Eben Moglen directly isn't the right thing to do,
> anyway--but this is still so vague I wouldn't know what to ask.)

The AFL can't be revocable at will because it's a binding contract.
It binds both sides, technically, but only the licensor has made any
promises.

The GPL isn't a contract, everyone agrees on that.  So how can the
licensor be bound by it?  If EvilCo buys the copyright of Alice's
GPLed Hummity software, they can announce "No more GPL on Hummity" and then
sue, say, Bob, who has copied, distributed, or modified after
hearing (actually or constructively) about the announcement.

What possible legal theory does Bob have to defend himself from
the charge of infringement?  I sure don't see any.

-- 
John Cowan  [EMAIL PROTECTED]  http://www.ccil.org/~cowan
O beautiful for patriot's dream that sees beyond the years
Thine alabaster cities gleam undimmed by human tears!
America! America!  God mend thine every flaw,
Confirm thy soul in self-control, thy liberty in law!
-- one of the verses not usually taught in U.S. schools

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-02 Thread Glenn Maynard 
On Tue, Nov 02, 2004 at 10:24:29PM -0500, John Cowan wrote:
> > Could you give an example of something that would "contradict the AFL",
> > that isn't allowed?  (If I'm allowed to distribute the work under the X11
> > license, then it seems like anything is allowed, except for obvious things
> > like removing the author's name.)
> 
> That's the whole idea.  It's a "copycenter" license: take the code
> down to the copy center and make as many copies (or derivatives)
> as you want.

You were previously talking about "contradicting the AFL", though.  Are
there actually any cases of this, or is it a practically null set?

> You should rather ask: what is there about any statement that makes
> it irrevocable?  The fact that it forms part of a valid contract.
> Contracts *are* statements of intent by one party that the other can
> enforce.  If I say, "I'm going to give you a million dollars", and
> then say "No I'm not", I've revoked my promise, but because there is
> no contract you cannot enforce this promise.

This isn't the same as you claiming you'll give me something, not doing
so and me suing for it; there's nothing I need to enforce, you're just
giving up your right for me to not distribute your work.  It's you (the
licensor) that's doing the enforcing, here: you've granted me permission
to do something normally prohibited by copyright law.

Turn it around: what is there about your license that might make it
revocable?  Is there anything in the law that suggests this, that one
could point the FSF at: "this looks like a problem; is it?"  Given the
vague "this might be a problem, but I don't really know", it's hard to
even formulate a decent question.  (If we had one, we could try asking
the FSF--asking Eben Moglen directly isn't the right thing to do,
anyway--but this is still so vague I wouldn't know what to ask.)

-- 
Glenn Maynard

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-02 Thread John Cowan 
Glenn Maynard scripsit:

> It seems that this license is actually doing two fundamentally distinct
> things: granting a license to people to do stuff, and making promises
> from the distributor/licensor.

Correct.

> I think this combination is what makes it
> so confusing: it looks like it requires these promises be made by everyone.
> This is probably partially a result of the GPL's influence, and partially
> because almost no free licenses place any kind of "restrictions" on the
> licensor (calling them restrictions is also confusing; that's not really
> what they are, since they're voluntary and you lose nothing if you don't
> want to make them).

"Obligations", then.  I choose to use the AFL and make those promises
because I hold that the right to be sued (which is to say, the right to
make binding and enforceable promises) is one of my more important rights.
There are also other reasons.

> I'm sure there's some way to make this stuff clearer for people used to
> more typical free licenses, but I'm not sure what it is.

AFL code is freely redistributable and freely usable in programs under
any kind of license, proprietary, copyleft, or BSD-ish.  The claim
that it's incompatible with the GPL, in particular, is just wrong, because
you can change the license on the copies you distribute from AFL to GPL.

> Could you give an example of something that would "contradict the AFL",
> that isn't allowed?  (If I'm allowed to distribute the work under the X11
> license, then it seems like anything is allowed, except for obvious things
> like removing the author's name.)

That's the whole idea.  It's a "copycenter" license: take the code
down to the copy center and make as many copies (or derivatives)
as you want.

> > "Consideration is as much a matter of form as seal."  Any benefit to the
> > licensee, however slight, constitutes consideration.  A court has to go
> > out of its way to find that there is no consideration whatever.  (IANAL.)
> 
> This is an assertion of how the law works, I've seen contradicting
> assertions, and I've seen claims that it may be very different
> depending on where you are (that contract law isn't nearly as uniform
> as copyright law, which does vary but tends to sit in a couple major
> camps).  I can't draw any useful conclusions from all that, though
> I'd speculate that all of them may be correct: that in some places,
> any benefit is consideration, and others require more.

Possibly.  No one can authoritatively say what the law is except the
various courts of final jurisdiction worldwide.

> This isn't a legal principle, it's an assertion.  Why is my grant of
> copyright license revocable?

You should rather ask: what is there about any statement that makes
it irrevocable?  The fact that it forms part of a valid contract.
Contracts *are* statements of intent by one party that the other can
enforce.  If I say, "I'm going to give you a million dollars", and
then say "No I'm not", I've revoked my promise, but because there is
no contract you cannot enforce this promise.

> I just can't find comparisons to "permission
> to trespass" very convincing.  (I've also heard things along the lines
> of "allow people to trespass on your land for long enough and you can no
> longer prevent it"--some kind of implicit permission--and I'm very sure
> that has no relation to copyright law.)

That is a matter of the trespasser *obtaining* a legal right to do so,
which is called an easement in common-law countries and prescription
in civil-law ones.  These are transferable independent legal rights --
I can sell you my easement, for example -- and are not at all a
matter of "implicit permission".  But that's by the way.

IANAL.

-- 
John Cowan  [EMAIL PROTECTED]  www.reutershealth.com  www.ccil.org/~cowan
Original line from The Warrior's Apprentice by Lois McMaster Bujold:
"Only on Barrayar would pulling a loaded needler start a stampede toward one."
English-to-Russian-to-English mangling thereof: "Only on Barrayar you risk to
lose support instead of finding it when you threat with the charged weapon."

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-02 Thread Glenn Maynard 
On Tue, Nov 02, 2004 at 08:03:49PM -0500, John Cowan wrote:
> The AFL's restrictions are intended to protect the licensor and his
> original licensees.  Other persons (including said licensees if they
> choose to become licensors as well) can undertake whatever obligations
> they wish to.

It seems that this license is actually doing two fundamentally distinct
things: granting a license to people to do stuff, and making promises
from the distributor/licensor.  I think this combination is what makes it
so confusing: it looks like it requires these promises be made by everyone.
This is probably partially a result of the GPL's influence, and partially
because almost no free licenses place any kind of "restrictions" on the
licensor (calling them restrictions is also confusing; that's not really
what they are, since they're voluntary and you lose nothing if you don't
want to make them).

I'm sure there's some way to make this stuff clearer for people used to
more typical free licenses, but I'm not sure what it is.


Could you give an example of something that would "contradict the AFL",
that isn't allowed?  (If I'm allowed to distribute the work under the X11
license, then it seems like anything is allowed, except for obvious things
like removing the author's name.)

> I was referring to corporate licenses that are OSI-open-source or FSF-free
> or both.  (Is there a current list of Debian-free licenses?)

I'm not sure.

> > However, it seems that a similar possible problem exists with contracts:
> > that they're not binding without consideration.  
> 
> "Consideration is as much a matter of form as seal."  Any benefit to the
> licensee, however slight, constitutes consideration.  A court has to go
> out of its way to find that there is no consideration whatever.  (IANAL.)

This is an assertion of how the law works, I've seen contradicting assertions,
and I've seen claims that it may be very different depending on where you are
(that contract law isn't nearly as uniform as copyright law, which does vary
but tends to sit in a couple major camps).  I can't draw any useful
conclusions from all that, though I'd speculate that all of them may be
correct: that in some places, any benefit is consideration, and others require
more.

> > It seems to me that the "free software contracts aren't enforcable due to
> > lack of consideration" claims are more likely than the nebulous "we're
> > not sure, but some people seem to think copyright licenses are revokable"
> > claims (at least the contract concern is based in a specific legal 
> > principle),
> 
> So is the other: that a bare license, *because* it is not a contract, is
> revokable.

This isn't a legal principle, it's an assertion.  Why is my grant of
copyright license revokable?  I just can't find comparisons to "permission
to trespass" very convincing.  (I've also heard things along the lines
of "allow people to trespass on your land for long enough and you can no
longer prevent it"--some kind of implicit permission--and I'm very sure
that has no relation to copyright law.)

-- 
Glenn Maynard

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-02 Thread John Cowan 
Glenn Maynard scripsit:

> Watch out: it only says "if you sue me for patent infringement, you lose
> your license", not "you can't sue me for patent infringement".  

Of course.  I was oversimplifying.

> General (but not unanimous) feeling on d-legal is that choice of venue is
> not free.  (This is another topic that would subvert the thread, though.)

Understood.

> > And even these modest restrictions apply only to the original work,
> > not to any derivative works.
> 
> So what's the point?  Why spend the cost of a longer license (and all
> of the related costs, such as mailing list threads as people struggle
> to comprehend the license :) to say "don't remove the change list",
> if you can still do so if you simply distribute the result under a
> different license?

The AFL's restrictions are intended to protect the licensor and his
original licensees.  Other persons (including said licensees if they
choose to become licensors as well) can undertake whatever obligations
they wish to.

> It seems like a lot of the stuff in this license is essentially optional--it
> says "please do this, but if you don't want to, feel free to use a different
> license"--they're just requests, made in an extremely complicated way.

Not so.  If you are a licensee under the AFL, then the licensor has made
specific, enforceable promises to you.  Not many, but some.
> > Quite right so far as it goes, but contracts have advantages, and are
> > used by most corporate licenses (the MPL is a contract, for example).
> 
> Most corporations do this to place heavily onerous restrictions on users
> that have nothing to do with copyright law, which requires them to use
> contracts.

I was referring to corporate licenses that are OSI-open-source or FSF-free
or both.  (Is there a current list of Debian-free licenses?)

> I don't believe this ability to restrict people in more ways
> is an "advantage", from the perspective of free software.

The "people" being restricted are the licensors.  Again, the AFL is a
unilateral contract: only the licensor makes binding promises.  The licensee
makes no promises.

> The only hint that it might have some validity is that I havn't been able
> to find any statement from the FSF or their councel (eg. Eben Moglen) saying
> that it isn't true, and some googling does show people claiming that
> they've asked about it and received no response--glaring silence is very
> suspicious.

Indeed.  It would certainly be embarrassing if the GPL failed the Tentacles
of Evil test, but I see absolutely no evidence that it passes.  The AFL
definitely passes that particular test: the licensor has no way of revoking his
promises (to distribute source and to warrant the provenance of the source),
because anyone who gets the software can accept the contract, become a
licensee, and enforce the contract.

> However, it seems that a similar possible problem exists with contracts:
> that they're not binding without consideration.  

"Consideration is as much a matter of form as seal."  Any benefit to the
licensee, however slight, constitutes consideration.  A court has to go
out of its way to find that there is no consideration whatever.  (IANAL.)

> It seems to me that the "free software contracts aren't enforcable due to
> lack of consideration" claims are more likely than the nebulous "we're
> not sure, but some people seem to think copyright licenses are revokable"
> claims (at least the contract concern is based in a specific legal principle),

So is the other: that a bare license, *because* it is not a contract, is
revokable.

> But the licensor isn't assured of that, since the "licensor" isn't actually
> forced to give it to him--since he can just use a different license.  It seems
> like this license says "you (the licensor) may bind yourself to give the
> source, but you don't have to", and I'm not seeing the point.

When I release source under the AFL, I have bound myself.  I can't renege unless
I can round up all the copies and destroy them before anyone becomes a licensee.
No one except a person releasing under the AFL is bound.

> In terms of freeness, if Debian is allowed to simply remove the AFL,
> distribute the work under the X11 license and pretend the AFL doesn't exist,
> then it's clearly free, though this implementation is so unusual among free
> software licenses that I wouldn't assume that an author placing his work
> under the AFL agrees with that--in other words, I'd look for confirmation
> from the author that this is what he intended by placing his work under
> it.

I so confirm, at least for FIGlet and TagSoup.

-- 
What is the sound of Perl?  Is it not the   John Cowan
sound of a [Ww]all that people have stopped [EMAIL PROTECTED]
banging their head against?  --Larryhttp://www.ccil.org/~cowan

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-02 Thread Glenn Maynard 
On Tue, Nov 02, 2004 at 06:30:42PM -0500, John Cowan wrote:
> > but I can distribute it under the X11
> > license, so the person I send it to is no longer forced to include source
> > (or to grant patent licenses, and so on).
> 
> Just so.  AFL original and derivative works may be redistributed under
> any license ranging from X11/MIT to a proprietary license.  The AFL is
> intended to belong to the BSD/MIT/Apache family of licenses, placing
> almost no restrictions or obligations on the licensee, except:
> 
> 1) Mark your changes and don't delete other peoples' change marks.
> 2) Don't sue me for liability, warranty, or patent infringement.

Watch out: it only says "if you sue me for patent infringement, you lose
your license", not "you can't sue me for patent infringement".  (There's
no way to do the latter, of course.)  This means that only people who
care about using your software are discouraged from suing you--people
who are just out to prevent competition or extort license fees (who
are the real problem, in my opinion) don't care.

(I think you understand this already--I'm pointing it out since it's
important that people using these clauses understand their limitations.)

> 3) If you do sue me for something else, sue me where I am.

General (but not unanimous) feeling on d-legal is that choice of venue is
not free.  (This is another topic that would subvert the thread, though.)

> And even these modest restrictions apply only to the original work,
> not to any derivative works.

So what's the point?  Why spend the cost of a longer license (and all
of the related costs, such as mailing list threads as people struggle
to comprehend the license :) to say "don't remove the change list",
if you can still do so if you simply distribute the result under a
different license?

It seems like a lot of the stuff in this license is essentially optional--it
says "please do this, but if you don't want to, feel free to use a different
license"--they're just requests, made in an extremely complicated way.
Requests don't belong in licenses.

> > For what it's worth, I think the general feeling here is that licenses that
> > need to do things which require a contract to be formed, and not a simple
> > copyright license grant, are "probably non-free".  It also brings in a
> > bunch of bags of worms: "consideration", for example, and to my (very
> > poor) understanding, contract law differs across jurisdictions far more
> > widely than copyright law.
> 
> Quite right so far as it goes, but contracts have advantages, and are
> used by most corporate licenses (the MPL is a contract, for example).

Most corporations do this to place heavily onerous restrictions on users
that have nothing to do with copyright law, which requires them to use
contracts.  I don't believe this ability to restrict people in more ways
is an "advantage", from the perspective of free software.

> The trouble with bare licenses is that they may be revocable -- nobody
> knows, but certainly a bare license to trespass on land, for example,
> is revocable at will.  The AFL is a unilateral contract: *only* the
> licensor makes promises.

Most people making this claim are saying that they're revokable because
of lack of consideration, which implies the person is confusing copyright
licenses with contracts.

The only hint that it might have some validity is that I havn't been able
to find any statement from the FSF or their councel (eg. Eben Moglen) saying
that it isn't true, and some googling does show people claiming that
they've asked about it and received no response--glaring silence is very
suspicious.

However, it seems that a similar possible problem exists with contracts:
that they're not binding without consideration.  I've read some text
from people claiming to be lawyers explaining that things like "agreeing
to the warranty disclaimer" and so just don't cut it as consideration.

(I don't claim that there's real credibility in that, since I havn't been
able to track them down.  If anyone has any credible and human-understandable
explanations of what generally qualifies as compensation--which is quite
possibly different in different parts of the world, or even different
states--please link.)

It seems to me that the "free software contracts aren't enforcable due to
lack of consideration" claims are more likely than the nebulous "we're
not sure, but some people seem to think copyright licenses are revokable"
claims (at least the contract concern is based in a specific legal principle),
making me skeptical of using the former to solve the latter.

> As I said above, the AFL is intended to be a maximally permissive license
> that still provides some modest protections for both licensor and licensee.
> The licensor is protected from certain kinds of lawsuits; the licensee
> is assured of actually getting the original work (DFSG #2) and that
> the licensor has the right to license it, as well as the full MIT-style
> set of freedoms (note that by one r

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-02 Thread John Cowan 
Glenn Maynard scripsit:

> This also implies that, for example, "Licensor hereby agrees to provide
> a machine-readable copy of the Source Code of the Original Work ..."
> means "if you distribute this, you're the licensor, so *you* agree to
> provide ...".  This clause reads as if it says "the original author
> agrees ...".  Placing conditions by asserting that the licensor agrees
> to something and then arranging for redistribution to turn you into the
> licensor may well be legally valid, but it's extremely confusing, and
> most people aren't going to understand it.

Rather, you *may* turn yourself into the licensor by distributing, but
you are not, and cannot be, compelled to do so.  If you want to do so (for
example, if you intend to offer a distro of AFL-licensed content from
various authors and assume responsibility for source code distribution)
then you can.

> If the "sublicense" doesn't have to be the AFL, though, I don't quite
> understand what the intention is.  That seems to mean that if I redistribute
> the work, I have to include source--

If you are distributing the original work under the AFL, or a derivative
work of your own under the AFL.  But those are not your only choices.

> but I can distribute it under the X11
> license, so the person I send it to is no longer forced to include source
> (or to grant patent licenses, and so on).

Just so.  AFL original and derivative works may be redistributed under
any license ranging from X11/MIT to a proprietary license.  The AFL is
intended to belong to the BSD/MIT/Apache family of licenses, placing
almost no restrictions or obligations on the licensee, except:

1) Mark your changes and don't delete other peoples' change marks.
2) Don't sue me for liability, warranty, or patent infringement.
3) If you do sue me for something else, sue me where I am.

And even these modest restrictions apply only to the original work,
not to any derivative works.

> This doesn't make sense to me.  A license gives a set of permissions,
> sometimes with conditions.  Allowing anything that the AFL doesn't,
> or restricting it in any way that it doesn't, seems to "contradict the
> AFL".

The AFL applies only to works which claim to be licensed under the AFL.
A derivative work need not be licensed under the AFL, for the simple
reason that the AFL does not so require (unlike its sister, the OSL).
It can be licensed under a license that is more or less restrictive.

> For what it's worth, I think the general feeling here is that licenses that
> need to do things which require a contract to be formed, and not a simple
> copyright license grant, are "probably non-free".  It also brings in a
> bunch of bags of worms: "consideration", for example, and to my (very
> poor) understanding, contract law differs across jurisdictions far more
> widely than copyright law.

Quite right so far as it goes, but contracts have advantages, and are
used by most corporate licenses (the MPL is a contract, for example).

The trouble with bare licenses is that they may be revocable -- nobody
knows, but certainly a bare license to trespass on land, for example,
is revocable at will.  The AFL is a unilateral contract: *only* the
licensor makes promises.

For example, if the licensor's warranty of provenance (that he has
either a valid copyright on the code or a valid license to use it) is
broken, the licensee can sue.  Similarly, if the licensor distributes
the original work in binary form but under the AFL, the licensee can
sue to get the source (probably -- courts won't always enforce specific
performance).

In a bare license, the licensee has no standing to sue whatsoever,
except on the shaky theory of promissory estoppel (which amounts to the
notion that a bare promise without contract formation can be treated as
a contract if the promisee relied on it to his detriment).

> I'd recommend not debating [patent defenses] in this thread, though--if
> you do, it's almost guaranteed to subvert the thread entirely.

Understood.

> What I don't understand is 1: what are the AFL's goals, particularly
> (for the sake of discussion) in "agrees to provide a machine-readable
> copy of the Source Code ...", and 2: why are those goals not subverted
> by this sublicensing stuff?

As I said above, the AFL is intended to be a maximally permissive license
that still provides some modest protections for both licensor and licensee.
The licensor is protected from certain kinds of lawsuits; the licensee
is assured of actually getting the original work (DFSG #2) and that
the licensor has the right to license it, as well as the full MIT-style
set of freedoms (note that by one reading, at least, the MIT contains
an implicit patent license in the verb "use", which is not relevant to
copyrights but is relevant to patents).

IANAL, TINLA.  I hope this helps clarify matters.

-- 
De plichten van een docent zijn divers, John Cowan
die van het gehoor ook. [EMAIL PROTECTED]
  --Edsger Di

[jcowan@reutershealth.com: Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?]

2004-11-02 Thread Glenn Maynard 
You can post to d-legal even if you're not subscribed.

(reply separate)

-- 
Glenn Maynard
--- Begin Message ---
(Please forward to debian-legal; I don't seem to be able to sign up for it
successfully.)

Glenn Maynard scripsit:

> This also implies that, for example, "Licensor hereby agrees to provide
> a machine-readable copy of the Source Code of the Original Work ..."
> means "if you distribute this, you're the licensor, so *you* agree to
> provide ...".  This clause reads as if it says "the original author
> agrees ...".  Placing conditions by asserting that the licensor agrees
> to something and then arranging for redistribution to turn you into the
> licensor may well be legally valid, but it's extremely confusing, and
> most people aren't going to understand it.

Rather, you *may* turn yourself into the licensor by distributing, but
you are not, and cannot be, compelled to do so.  If you want to do so (for
example, if you intend to offer a distro of AFL-licensed content from
various authors and assume responsibility for source code distribution)
then you can.

> If the "sublicense" doesn't have to be the AFL, though, I don't quite
> understand what the intention is.  That seems to mean that if I redistribute
> the work, I have to include source--

If you are distributing the original work under the AFL, or a derivative
work of your own under the AFL.  But those are not your only choices.

> but I can distribute it under the X11
> license, so the person I send it to is no longer forced to include source
> (or to grant patent licenses, and so on).

Just so.  AFL original and derivative works may be redistributed under
any license ranging from X11/MIT to a proprietary license.  The AFL is
intended to belong to the BSD/MIT/Apache family of licenses, placing
almost no restrictions or obligations on the licensee, except:

1) Mark your changes and don't delete other peoples' change marks.
2) Don't sue me for liability, warranty, or patent infringement.
3) If you do sue me for something else, sue me where I am.

And even these modest restrictions apply only to the original work,
not to any derivative works.

> This doesn't make sense to me.  A license gives a set of permissions,
> sometimes with conditions.  Allowing anything that the AFL doesn't,
> or restricting it in any way that it doesn't, seems to "contradict the
> AFL".

The AFL applies only to works which claim to be licensed under the AFL.
A derivative work need not be licensed under the AFL, for the simple
reason that the AFL does not so require (unlike its sister, the OSL).
It can be licensed under a license that is more or less restrictive.

> For what it's worth, I think the general feeling here is that licenses that
> need to do things which require a contract to be formed, and not a simple
> copyright license grant, are "probably non-free".  It also brings in a
> bunch of bags of worms: "consideration", for example, and to my (very
> poor) understanding, contract law differs across jurisdictions far more
> widely than copyright law.

Quite right so far as it goes, but contracts have advantages, and are
used by most corporate licenses (the MPL is a contract, for example).

The trouble with bare licenses is that they may be revocable -- nobody
knows, but certainly a bare license to trespass on land, for example,
is revocable at will.  The AFL is a unilateral contract: *only* the
licensor makes promises.

For example, if the licensor's warranty of provenance (that he has
either a valid copyright on the code or a valid license to use it) is
broken, the licensee can sue.  Similarly, if the licensor distributes
the original work in binary form but under the AFL, the licensee can
sue to get the source (probably -- courts won't always enforce specific
performance).

In a bare license, the licensee has no standing to sue whatsoever,
except on the shaky theory of promissory estoppel (which amounts to the
notion that a bare promise without contract formation can be treated as
a contract if the promisee relied on it to his detriment).

> I'd recommend not debating [patent defenses] in this thread, though--if
> you do, it's almost guaranteed to subvert the thread entirely.

Understood.

> What I don't understand is 1: what are the AFL's goals, particularly
> (for the sake of discussion) in "agrees to provide a machine-readable
> copy of the Source Code ...", and 2: why are those goals not subverted
> by this sublicensing stuff?

As I said above, the AFL is intended to be a maximally permissive license
that still provides some modest protections for both licensor and licensee.
The licensor is protected from certain kinds of lawsuits; the licensee
is assured of actually getting the original work (DFSG #2) and that
the licensor has the right to license it, as well as the full MIT-style
set of freedoms (note that by one reading, at least, the MIT contains
an implicit patent license in the verb "use", which is not relevant to
copyrights but is relevant to pat

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-11-02 Thread Glenn Maynard 
On Tue, Oct 19, 2004 at 05:59:42PM -0400, John Cowan wrote:
> > Sublicensing means that you are still bound by the original licence, 
> > but you can offer any licence in the specified range to those you 
> > distribute to.
> 
> Quite so, and I should have clarified that point.  If Alice licenses
> a work to Bob under a sublicenseable license, and Bob sublicenses the
> same work or a derivative work to Charlie, then Charlie cannot receive
> from Bob under a license that contradicts Alice's license.  In the
> case of the AFL, as of the MIT license, it is so permissive that it
> is almost impossible to contradict it.

This also implies that, for example, "Licensor hereby agrees to provide
a machine-readable copy of the Source Code of the Original Work ..."
means "if you distribute this, you're the licensor, so *you* agree to
provide ...".  This clause reads as if it says "the original author
agrees ...".  Placing conditions by asserting that the licensor agrees
to something and then arranging for redistribution to turn you into the
licensor may well be legally valid, but it's extremely confusing, and
most people aren't going to understand it.

If the "sublicense" doesn't have to be the AFL, though, I don't quite
understand what the intention is.  That seems to mean that if I redistribute
the work, I have to include source--but I can distribute it under the X11
license, so the person I send it to is no longer forced to include source
(or to grant patent licenses, and so on).

If I can't do that, then I can't distribute it "under any license whatsoever"
(below).

> > The wording in the AFL looks like the range of 
> > permitted sublicences consists of only the AFL, but maybe I 
> > misunderstood it.
> 
> No, it permits sublicensing the work and derivative works under any
> license that doesn't contradict the AFL, since it would require particular
> words (as found in the OSL, the AFL's sibling license) to restrict it.
> The license need not even be a free license.  So works under the AFL
> can be treated much like those under the BSD or MIT licenses.
> 
> I have urged Larry to add explicit words "under any license whatsoever" to
> the next version of the AFL, to make the consequences of sublicenseability
> clear.

This doesn't make sense to me.  A license gives a set of permissions,
sometimes with conditions.  Allowing anything that the AFL doesn't,
or restricting it in any way that it doesn't, seems to "contradict the
AFL".

> > I'm surprised if the author of the AFL thinks it can 
> > be replaced by any licence, as that would seem to be a trivial way to 
> > defeat its overbroad patent termination.
> 
> The AFL, being a contract, cannot and does not attempt to defend Licensor
> against patent lawsuits by third parties who are not licensees.

For what it's worth, I think the general feeling here is that licenses that
need to do things which require a contract to be formed, and not a simple
copyright license grant, are "probably non-free".  It also brings in a
bunch of bags of worms: "consideration", for example, and to my (very
poor) understanding, contract law differs across jurisdictions far more
widely than copyright law.

>   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.
> 
> So it takes away Bob's right to use Alice's software if Bob claims that
> that very software infringes Bob's or Charlie's patent.

This has been discussed recently at extreme length, and no strong consensus
was reached.

One issue is defensive countersuits: if you sue me claiming patent
infringement, and I countersue with another patent, I lose my license
to the software.  Allowing this is arguably worthwhile, due to the
current legal environment where the only strong patent defense is other
patents.

Some people think that this is an acceptable trade-off; some think that
it's not, and that there probably is no way to construct a patent defense
clause without this type of side-effect.

I'd recommend not debating this issue in this thread, though--if you do,
it's almost guaranteed to subvert the thread entirely.

> > I think you are right that it's an unusual practice for free software, 
> > though, but I'm not a lawyer.
> 
> There's an awful lot of MIT-licensed and MPL-licensed software out there.
> Any of it can be sublicensed (with varying restrictions on the sublicense);
> whether it is or not, nobody knows.

I don't know about the MPL, but the MIT license isn't attempting to
"accomplish" anything: it says "do whatever you want".  Releasing
modifications under a more restrictive license doesn't subvert any
of its goals, since it doesn't have any.  On the other hand, the GPL
has some very specific goals: requiring that source always accompany
binaries

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-10-31 Thread John Cowan 
Note:  lists.debian.org is refusing to allow me to subscribe: please
forward this post.

MJ Ray scripsit:

> Sublicensing means that you are still bound by the original licence, 
> but you can offer any licence in the specified range to those you 
> distribute to.

Quite so, and I should have clarified that point.  If Alice licenses
a work to Bob under a sublicenseable license, and Bob sublicenses the
same work or a derivative work to Charlie, then Charlie cannot receive
from Bob under a license that contradicts Alice's license.  In the
case of the AFL, as of the MIT license, it is so permissive that it
is almost impossible to contradict it.

> The wording in the AFL looks like the range of 
> permitted sublicences consists of only the AFL, but maybe I 
> misunderstood it.

No, it permits sublicensing the work and derivative works under any
license that doesn't contradict the AFL, since it would require particular
words (as found in the OSL, the AFL's sibling license) to restrict it.
The license need not even be a free license.  So works under the AFL
can be treated much like those under the BSD or MIT licenses.

I have urged Larry to add explicit words "under any license whatsoever" to
the next version of the AFL, to make the consequences of sublicenseability
clear.

By contrast, the MPL is also sublicenseable, but the Original Work and
Modifications can only be sublicensed under the MPL itself.

> I'm surprised if the author of the AFL thinks it can 
> be replaced by any licence, as that would seem to be a trivial way to 
> defeat its overbroad patent termination.

The AFL, being a contract, cannot and does not attempt to defend Licensor
against patent lawsuits by third parties who are not licensees.

I'd be interested to learn why you think the patent-termination language
of the AFL 2.1 is overbroad.  It says:

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.

So it takes away Bob's right to use Alice's software if Bob claims that
that very software infringes Bob's or Charlie's patent.

> I think you are right that it's an unusual practice for free software, 
> though, but I'm not a lawyer.

There's an awful lot of MIT-licensed and MPL-licensed software out there.
Any of it can be sublicensed (with varying restrictions on the sublicense);
whether it is or not, nobody knows.

IANAL, TINLA.

Glenn Maynard scripsit:

> For example, the choice of venue clause in the AFL doesn't exist in
> the GPL.  If I receive a work under the AFL from John, integrate some
> code from gcc, and send the result to Bob, can Bob sue John without
> being bound by the choice of venue?  If not, it's GPL-incompatible.
> How does "sublicenseability" help here?

Of course, your distribution to Bob is under the GPL.  

The fact that Bob receives code that was originally licensed by John
under the AFL doesn't make Bob a licensee of John.  The only ways
for Bob to become a licensee are to explicitly manifest his assent
(in which case he is bound) or to do one of the things mentioned
in AFL section 1 provided there is no other way to do those things.
In fact, however, Bob can make and distribute copies and derivative
works under the GPL license which he has from you.

=

To respond to a few points made by others: the fact that the AFL is
a contract does not make it violate the Autocrat Test, since the licensee
makes no promises under the AFL (it is a *unilateral* contract).  The
right to use, as well as all the copyright and patent rights, are
explicitly granted.  The only thing a licensee can't do is remove the
copyright notices, which is also prohibited by many other free licenses.

The OSI board definitely does analyze licenses themselves; the fact that
the AFL's author has an institutional connection does not mean their
judgment of his licenses is biased, any more than the fact that RMS has
an institutional connection with the FSF means that the GPL and LGPL are
not free licenses.

All Figlet authors are within U.S. jurisdiction, or were at the time when
they were authors.

The claim that *all* authors must agree to a change of license must
depend on some legal theory that I'm not aware of and that is not
stated.  We are dealing here with a single module that has been repeatedly
patched, not with independently licensed modules (apart from the zip stuff,
which is now out of the case).  That seems to meet the U.S. statutory
definition of joint authorship, by which any author can act unilaterally
but is responsible to the other authors for the profits (not an issue here).

-- 
John Cowan  [EMAIL PROTECTED]  www.reutershealth.com  www.ccil.org/~cowan
I am he that buries his friends alive and drowns them and draws them
alive again from the water. I cam

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-10-21 Thread Branden Robinson 
On Fri, Oct 15, 2004 at 10:57:44AM +0100, MJ Ray wrote:
> I suspect Larry Rosen's work was part of the motive for Branden 
> proposing the contract/ autocrat test for licences.

You're not wrong, but as you imply, he's far from the only offender.

-- 
G. Branden Robinson| The power of accurate observation
Debian GNU/Linux   | is frequently called cynicism by
[EMAIL PROTECTED] | those who don't have it.
http://people.debian.org/~branden/ | -- George Bernard Shaw


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Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-10-18 Thread MJ Ray 

On 2004-10-18 22:58:58 +0100 Glenn Maynard <[EMAIL PROTECTED]> wrote:

"Sublicensing" is an uncommon practice in free software licenses, so 
we

(debian-legal) don't have a very good understanding of what it is, how
it works, and why it's used.  Any input you can provide would be 
helpful.


Sublicensing means that you are still bound by the original licence, 
but you can offer any licence in the specified range to those you 
distribute to. The wording in the AFL looks like the range of 
permitted sublicences consists of only the AFL, but maybe I 
misunderstood it. I'm surprised if the author of the AFL thinks it can 
be replaced by any licence, as that would seem to be a trivial way to 
defeat its overbroad patent termination.


I think you are right that it's an unusual practice for free software, 
though, but I'm not a lawyer.


--
MJR/slefMy Opinion Only and not of any group I know
 Creative copyleft computing - http://www.ttllp.co.uk/
Will HLF fund tree-killings? http://www.thewalks.co.uk/

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-10-18 Thread Glenn Maynard 
(CC to John Cowan since most of this response is directed at him, and there's
no indication that he's on this list.)

On Thu, Oct 14, 2004 at 02:39:31PM -0300, Carlos Laviola wrote:
> From: John Cowan <[EMAIL PROTECTED]>
>
> with the GNU GPL, but I (and the author of the AFL) believe this to be
> incorrect, and a failure to reflect on the sublicenseability (that is,
> the right of a distributor of original or modified works to replace the
> AFL with his own license, proprietary or open) of the AFL.  I have asked
> the AFL's author to make this point clearer in AFL 2.2.

I'd be interested in details.  It sounds like you're saying that people
distributing modified versions can do so under any license.  That doesn't
make sense to me, since it would mean that the terms of the AFL aren't
binding and can be discarded completely--which I doubt is the case.  Could
you explain this in a little more depth?

For example, the choice of venue clause in the AFL doesn't exist in the
GPL.  If I receive a work under the AFL from John, integrate some code from
gcc, and send the result to Bob, can Bob sue John without being bound by the
choice of venue?  If not, it's GPL-incompatible.  How does "sublicenseability"
help here?

"Sublicensing" is an uncommon practice in free software licenses, so we
(debian-legal) don't have a very good understanding of what it is, how
it works, and why it's used.  Any input you can provide would be helpful.

-- 
Glenn Maynard

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-10-17 Thread Raul Miller 
On Sun, Oct 17, 2004 at 01:23:42PM +0200, Francesco Poli wrote:
> "stating that *you* changed the files" is weaker than requiring "stating
> that you changed the files and stating which *your name* is".
> 
> Requiring that the modifier's name is placed in a comment line fails the
> Dissident Test.

People have many names -- family names, personal names, irc handles,
trademarks, nicknames, pen names, pseudonyms, informal names, ...

The general case of a requirement for a name which does not also specify
that that name be unique and/or be witnessed and/or be notarized and/or
appear on some kind of government certificate or other document and/or
be contact information does not seem to me to fail the dissident test.

Ok, if the requirement for a name required that it appear in some sort
of legal document, I'd see that as failing the dissident test.  Or,
if the name needed to be accompanied by a signature.  Or, if there were
some other indicator that the name had lasting legal significance.

But a name on list of changed files?

It's not even asking for the name of the copyright holder for those
changes.  [If it was, you could assign copyright to some arbitrary
organization and put that name on it, which should satisfy the dissident
test.]

Putting a name in a file -- when that name doesn't need to be the name
of the copyright holder, nor be useable as contact information, and when
the file's purpose is only to indicate that changes have been made --
doesn't seem to me to involve any dissident risk.  At least, not if the
dissident in question knows that they are a dissident and also chooses
to avoid using contact information as a name.

-- 
Raul

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-10-17 Thread Francesco Poli 
On Thu, 14 Oct 2004 14:39:31 -0300 Carlos Laviola wrote:

[...]
> -- Forwarded message --
> From: John Cowan <[EMAIL PROTECTED]>
> Date: Thu, 14 Oct 2004 13:27:26 -0400
> Subject: Re: figlet license change from Artistic to Clarified Artistic
> or Artistic 2.0?
> To: Carlos Laviola <[EMAIL PROTECTED]>
> Cc: Ian Chai <[EMAIL PROTECTED]>, [EMAIL PROTECTED], John
> Cowan <[EMAIL PROTECTED]>, Christiaan Keet <[EMAIL PROTECTED]>
[...]
> Carlos Laviola scripsit:
> 
> > Thanks for that, but I think I'd need permission from the other
> > copyright holders -- in this case, everyone involved in this
> > discussion -- for that change to happen. They contributed code under
> > Artistic back then.
> 
> Since none of us can possibly suffer a commercial loss, and since
> FIGlet is not registered with the Copyright Office, there is no one
> with standing to sue for statutory damages (actual damages being
> obviously $0).  Still, I agree that unanimous consent is a good thing,
> where achievable.

I think it is *necessary* that each contributor agrees on a relicensing
under a new license N...

Excluding, of course, contributions released under a license L
compatible with N (these contributions may be kept under L) or under a
weak license W that explicitly permits conversion into N (these
contributions may be relicensed without asking anything else to the
contributor(s)).

> 
> > There are also some issues with the default fonts, which have
> > statements such as
> >
> > Shadow by Glenn Chappell 6/93 -- based on Standard & SmShadow
> > Includes ISO Latin-1
> > figlet release 2.1 -- 12 Aug 1994
> > Permission is hereby given to modify this font, as long as the
> > modifier's name is placed on a comment line.
> >
> > The "(...) as long as the modifier's name is placed on a comment
> > line" is a lot like the advertisement clause on the older BSD-like
> > licenses.
> 
> Not at all.  The old 4-clause BSD license required that any
> *advertising* of any product incorporating licensed code had to
> mention the name of the licensor as a source of the code.  That is not
> at all the same as saying that the *code itself* must mention the name
> of anyone who changes it. Many free licenses, notably the GPL (clause
> 2a) and the MPL (clause 3.3), require at least that much.

The GPL does not require as much.
GPLv2, clause 2a reads:

|   2. You may modify your copy or copies of the Program or any portion
|   of it, thus forming a work based on the Program, and copy and
|   distribute such modifications or work under the terms of Section 1
|   above, provided that you also meet all of these conditions:
|
|a) You must cause the modified files to carry prominent notices
|stating that you changed the files and the date of any change.

"stating that *you* changed the files" is weaker than requiring "stating
that you changed the files and stating which *your name* is".

Requiring that the modifier's name is placed in a comment line fails the
Dissident Test.

[...]
> Both the Open Source Initiative and the Free Software Foundation have
> analyzed the AFL and declared it conformant to their definitions of
> "open source" and "free".  The FSF also claims that the AFL is
> incompatible with the GNU GPL, but I (and the author of the AFL)
> believe this to be incorrect, and a failure to reflect on the
> sublicenseability (that is, the right of a distributor of original or
> modified works to replace the AFL with his own license, proprietary or
> open) of the AFL.  I have asked the AFL's author to make this point
> clearer in AFL 2.2.

It seems that a rather clear consensus about the AFL is being formed
here at debian-legal: it doesn't comply with DFSG and it's
GPL-incompatible.

[...]
> > Wouldn't you agree on choosing a more thoroughly analyzed license,
> > such as the GPL, version 2, for FIGlet?
> 
> Definitely not.  Copyleft licenses are antithetical to the spirit of
> FIGlet.

If upstream authors don't like copyleft (nothing wrong in liking it, nor
in disliking it: it's a matter of tastes...), I can suggest some
simple non-copyleft DFSG-free license they could consider:

Expat (a.k.a. MIT) license ___ http://www.jclark.com/xml/copying.txt
X11 (a.k.a. MIT) license _ http://www.x.org/Downloads_terms.html
2-clause BSD license _ http://www.fsf.org/licenses/info/BSD_2Clause.html
3-clause BSD license _ http://www.fsf.org/licenses/info/BSD_3Clause.html




-- 
  Today is the tomorrow you worried about yesterday.
..
  Francesco Poli GnuPG Key ID = DD6DFCF4
 Key fingerprint = C979 F34B 27CE 5CD8 DC12  31B5 78F4 279B DD6D FCF4


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Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-10-15 Thread MJ Ray 
On 2004-10-14 18:39:31 +0100 Carlos Laviola <[EMAIL PROTECTED]> 
wrote:



-- Forwarded message --
From: John Cowan <[EMAIL PROTECTED]>

[...]
Since none of us can possibly suffer a commercial loss, and since 
FIGlet
is not registered with the Copyright Office, there is no one with 
standing

to sue for statutory damages (actual damages being obviously $0).


Is this assuming all contributors live in a particular jurisdiction? 
Do they?



[...]  How sure are you that a declaration that something is in the
public domain actually makes it so?  Lawyers don't agree on this 
point.


I looked at the web site of Union for the Public Domain 
http://www.public-domain.org/ and finding useful nothing there, I 
emailed someone there. No reply yet.


I must admit that I lack the legal expertise to claim that the AFL 
2.1

conforms to the Debian Free Software Guidelines, since it talks about
needlessly complicated things like patents and jurisdictions.

Both the Open Source Initiative and the Free Software Foundation have
analyzed the AFL and declared it conformant to their definitions of 
"open

source" and "free".


The FSF list evaluates licences in abstract, not applied to particular 
software. Also, I suspect they assume that no free software patents 
are valid, so ignore those aspects, but I don't have a sure answer 
either way about that.


The current process of the failed Open Source Initiative seems to say 
that they do not analyse licences themselves, but use the licence 
author's or owner's lawyers. The author of the AFL is the OSI board's 
legal adviser.



[...] The AFL,
on the other hand, is a contract between licensor and licensee whereby
the licensor makes promises (mostly to refrain from certain things)
that the licensee can readily enforce in court.


I think this is the reason it is a practical problem. Entering into a 
contract readily enforceable in court usually needs some evidence of 
proper offer and acceptance, which most GNU/Linux distributions can't 
record. I could be wrong because I am not a lawyer but some of my 
friends are.


If it's a contract, why isn't it called "Academic Free Contract" just 
to make that clear? ;-)


I suspect Larry Rosen's work was part of the motive for Branden 
proposing the contract/ autocrat test for licences.


--
MJR/slefMy Opinion Only and not of any group I know
 Creative copyleft computing - http://www.ttllp.co.uk/
Speaking at ESF on Sat 16 Oct - http://www.affs.org.uk/

Re: Fwd: figlet license change from Artistic to Clarified Artistic or Artistic 2.0?

2004-10-15 Thread Andrew Suffield 
On Thu, Oct 14, 2004 at 02:39:31PM -0300, Carlos Laviola wrote:
> > I must admit that I lack the legal expertise to claim that the AFL 2.1
> > conforms to the Debian Free Software Guidelines, since it talks about
> > needlessly complicated things like patents and jurisdictions.
> 
> Both the Open Source Initiative and the Free Software Foundation have
> analyzed the AFL and declared it conformant to their definitions of "open
> source" and "free".

Yuck. They really aren't trying very hard when analysing licenses
these days if crap like this gets through. I get the feeling that you
could manage to get the "pet a cat" license past them.


It sounds like upstream has gone completely insane. Not a promising
sign.

-- 
  .''`.  ** Debian GNU/Linux ** | Andrew Suffield
 : :' :  http://www.debian.org/ |
 `. `'  |
   `- -><-  |


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