Re: Subscription/Service Fees - OSD Intent
Eric Jacobs scripsit: Indeed, if the execution of a software program is not an exclusive right of the copyright holder, then all shareware concepts (with or without source) are faced with a problem -- how to get the user to execute the license at all. Considering that most shareware users are not interested in copying, modifying, distributing, or preparing derivative works, this is a serious problem. I don't think so. In order for you to obtain a shareware program, copying had to happen somewhere: either you copied it from some source, or a distributor copied it and distributed the copy to you. In either case the Copyright Act gets involved. The kind of copying involved in running a program -- from disk to memory -- is explicitly licensed by the Act. But whether or not shareware-with-source can be practically or legally enforced is not my main point. My main point is that OSD #7 cannot be sensibly construed as a criterion that a requirement-to-pay be waived for users to whom the software is redistributed, *without* also implying the waiver of other kinds of requirements, such as GNU GPL-style "viral" requirements. I agree. -- John Cowan [EMAIL PROTECTED] One art/there is/no less/no more/All things/to do/with sparks/galore --Douglas Hofstadter
Re: Subscription/Service Fees - OSD Intent
Eric Jacobs [EMAIL PROTECTED] wrote: But whether or not shareware-with-source can be practically or legally enforced is not my main point. My main point is that OSD #7 cannot be sensibly construed as a criterion that a requirement-to-pay be waived for users to whom the software is redistributed, *without* also implying the waiver of other kinds of requirements, such as GNU GPL-style "viral" requirements. True, with respect to #7. But there is OSD #1. The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale. A "royalty" is payment to the author. --- I spent some time discussing the IntraDAT viewpoint off-list in January. The stumbling block and misunderstanding were very simlar. Perhaps the OSD could be written to be more clear. There was also another point of contention. Apparently in German the idea of "right to do something" is not the same as "permission to do something." (It was very difficult to determine that it was this difference which was causing us to argue in circles.) I am (mostly) bi-lingual, but not German, and I never asked anyone else about it. He explained the difference using the example of a museum open to the public. Any member of the public has a "right" to enter the museum. But they still have to pay the admission fee. I explained that when the OSD used the term, it was in the sense of "license" and "permission." When you define "right" as "not otherwise restricted by law", as he did, the OSD reads very differently. That is how IntraDAT planned to charge usage fees without violating the OSD. --- Nowhere in the OSD is the right to use software required. Although I believe this to be permitted by copyright law, perhaps placing a mention in the OSD (or rationale) would also eliminate confusion. -- Forrest J. Cavalier III, Mib Software Voice 570-992-8824 http://www.rocketaware.com/ has over 30,000 links to source, libraries, functions, applications, and documentation.
Re: Subscription/Service Fees - OSD Intent
On 28 Mar 2001, Ian Lance Taylor wrote: I myself am uncertain, which is why I would be happier if the OSD had an explicit statement that a recipient of a program was permitted to run it. That seems a good idea. Also, OSD #1 says that you can redistribute "as a component of an aggregate software distribution containing programs from several different sources" but doesn't explicitly says you can redistribute a program on its own. To me this implies that you have no such automatic right, and suggests the bizarre scenario that if you want to redistribute, you have to bundle it up with a trivial "hello world" program. -- * Phil Hunt * "An unforseen issue has arisen with your computer. Don't worry your silly little head about what has gone wrong; here's a pretty animation of a paperclip to look at instead." -- Windows2007 error message
Re: Subscription/Service Fees - OSD Intent
On 28 Mar 2001, Ian Lance Taylor wrote: the recipient is permitted to run the program. The last time this was discussed, Russ Nelson (who is on the OSI board) said this: | If you have legally received a copy of a program (and | OSD #1 guarantees the right of the person giving you a copy to do so), | you are free to use it or not, as you wish. Copyright law only | restricts copying. You could only restrict the activities of a | *recipient* if you could require them to execute a license, but OSD #7 | prohibits that. Perhaps I'm being stupid, but that doesn't make much sense to me. Say I write a program and distribute it under the GPL, then any of the recipients of the program may only use it under the terms of the GPL; they may not do anything that the GPL prohibits. So they are not "free to use it as [they] wish". Or does #7 only apply to usage *other than* copying? If so, does this mean that if someone illegally encapsulates my GPL'd code then they can still legally run my program? -- * Phil Hunt * "An unforseen issue has arisen with your computer. Don't worry your silly little head about what has gone wrong; here's a pretty animation of a paperclip to look at instead." -- Windows2007 error message
Re: Subscription/Service Fees - OSD Intent
On Wed, 28 Mar 2001, Eric Jacobs wrote: Plainly, this is not what #7 means. OK, what does #7 mean? -- * Phil Hunt * "An unforseen issue has arisen with your computer. Don't worry your silly little head about what has gone wrong; here's a pretty animation of a paperclip to look at instead." -- Windows2007 error message
Re: Subscription/Service Fees - OSD Intent
On Wed, 28 Mar 2001, David Johnson wrote: On Thursday March 29 2001 03:25 am, Eric Jacobs wrote: It is this sort of illogical argument that will prevent this issue from ever coming to rest. Let me offer an analogy. I did manage to pass logic in college. However, I don't always do so well in English. Let me restate what I meant: Software that requires a registration fee is possible, and exists. Such software cannot be considered Open Source, however. What about software that require registration (e.g. by email), but not a registration *fee*? Can that be Open Source? -- * Phil Hunt * "An unforseen issue has arisen with your computer. Don't worry your silly little head about what has gone wrong; here's a pretty animation of a paperclip to look at instead." -- Windows2007 error message
Re: Subscription/Service Fees - OSD Intent
"Lou Grinzo" [EMAIL PROTECTED] writes: My solution is for some group of people (like us) to collectively assemble a list of every permutation of activity we can think of involving software--sell it modified/unmodified with/without source, linked/not linked with non-free/open SW, bundled/not bundled with other software, etc.--and then have the licenses that care about where such lines are drawn include a list that explicitly says something along the lines of, "Subject to the other terms and conditions of this license, you are granted the rights to do the following things with this software. You are not granted the right to do anything with this software that is not explicitly mentioned below unless you make separate arrangements with the original author(s)." [list of activities] Obviously some licenses, like the BSD license, would not benefit from changing, since it's so wide open to begin with. How about http://www.gnu.org/philosophy/free-sw.html http://www.gnu.org/philosophy/license-list.html Ian
RE: Subscription/Service Fees - OSD Intent
Lou Grinzo wrote: I've contended for a long time that the primary problem with open/free licenses is that they're not specific enough. My experience (as a lawyer) with open/free licenses is that many of them are not properly drafted. The GNU GPL is particularly difficult to interpret, probably because it was written by a non-lawyer. The resulting legal uncertainty makes it very difficult for me to give sound advice to my clients, and makes licensing rights in or out under the GNU GPL very risky. Statements of intent are fine as separate commentary but only muddy the waters when included in documents that are meant to be legally binding. With regard to specificity, sometimes more is better but sometimes it's not needed and can be harmful. Statutory and case law frequently fill in the "gaps" left in agreements and there's no need to elaborate. For instance, if a license grants the licensee the right to create derivative works of the licensed software, the law provides that the licensee owns the derivative works created by the licensee (but not the underlying work on which the derivative work is based). So there's no need to add a provision that "licensee owns the derivative work and may distribute it . . ." In fact, adding a poorly drafted provision on the issue is even worse than staying silent. Finally, Randy Kramer is absolutely correct that "it is sometimes considered an advantage to never change the language of a law or agreement but allow the interpretation of the language to evolve." The best example of this that I can think of is insurance policies. The wording of the policies -- which is pretty standard from insurance company to insurance company -- is archaic and confusing to someone not familiar with insurance law. But the wording has been the subject of decades of court decisions (e.g. "advertising injury" includes claims of trademark infringement) and the meaning of most policies is now pretty much fixed. Insurance companies are loath to insert new language into policies lest the new wording be interpreted in a way that they did not intend. (There is, I believe, a lot of litigation brewing over the Y2K exclusions that insurance companies hastily issued before 1/1/00.) In the case of Open Source licenses, however, this stuff is too new for there to be any value in simply sticking with bad language. I did a search of Lexis recently and could not find a single case interpreting the GNU GPL or the Mozilla GL. Devin Smith -Original Message- From: Randy Kramer [mailto:[EMAIL PROTECTED]] Sent: Thursday, March 29, 2001 2:18 PM To: [EMAIL PROTECTED] Subject: Re: Subscription/Service Fees - OSD Intent Amen!! And, if that is too much work, maybe (and I say maybe because I think there may be some legal risks) someone could create a plain language statement of the intent of open source. By this, I mean something like: "It is the intent of the open source licenses to promote blah blah blah by: -allowing software to be distributed at no charge -preventing anyone from charging for open source software -blah -blah -blah The approved Open Source licenses have been approved on the basis that we (the OSF or whatever) believe the terms of the approved licenses achieve the objectives stated above." (Maybe this is already done somewhere??) I have occasionally heard that, in the legal profession, it is sometimes considered an advantage to never change the language of a law or agreement but allow the interpretation of the language to evolve. I don't know the reasons for this -- I may have been given some reasons once, even by a lawyer -- IIRC, one viewpoint is that if the language is not changed there may be a stronger case to say such and such agreement is based on a long line of precedent which has never changed. And maybe, if an amendment is made to an Open Source license to explicitly prohibit charging for Open Source software, it opens the door to an argument that licenses before the amendment allowed the charging of fees. But, if so, we can do better, can't we? IANAL, IANAL, IANAL Thanks, Randy Kramer Lou Grinzo wrote: I'm sure I'm going to get beat up for suggesting this (as happens every time I offer the idea, it seems), but what the heck... I've contended for a long time that the primary problem with open/free licenses is that they're not specific enough. Look at this conversation thread that's been running for days. We have a bunch of intelligent, honest, and genuinely interested people here who are having a hard time figuring out just what in the world the GPL and/or the OSD mean. How the heck are average computer users or people who aren't as benign in their outlook on OS supposed to interpret these documents? My solution is for some group of people (like us) to collectively assemble a list of every permutation of activity we can think of involving software--sell it modified/unmodified with/without source, linked/not linked with
RE: Subscription/Service Fees - OSD Intent
It belongs in the license, not on a web page, IMHO. If the FSF wants to provide additional information on their web site, that's great, but the license should be complete and clear enough that there's virtually no "wiggle room" for interpretation. Take care, Lou -Original Message- From: Ian Lance Taylor [mailto:[EMAIL PROTECTED]] Sent: Thursday, March 29, 2001 2:44 PM To: [EMAIL PROTECTED] Subject: Re: Subscription/Service Fees - OSD Intent "Lou Grinzo" [EMAIL PROTECTED] writes: My solution is for some group of people (like us) to collectively assemble a list of every permutation of activity we can think of involving software--sell it modified/unmodified with/without source, linked/not linked with non-free/open SW, bundled/not bundled with other software, etc.--and then have the licenses that care about where such lines are drawn include a list that explicitly says something along the lines of, "Subject to the other terms and conditions of this license, you are granted the rights to do the following things with this software. You are not granted the right to do anything with this software that is not explicitly mentioned below unless you make separate arrangements with the original author(s)." [list of activities] Obviously some licenses, like the BSD license, would not benefit from changing, since it's so wide open to begin with. How about http://www.gnu.org/philosophy/free-sw.html http://www.gnu.org/philosophy/license-list.html Ian
RE: Subscription/Service Fees - OSD Intent
Devin, Good points about laws remaining fixed (as in unchanging, not "not broken" g), and also the business about not saying things that don't really need saying. But I still contend that we could collectively put together a much clearer and more comprehensible license. As an editor an writer in the Linux field for some time, I'm dismayed by all the e-mail I've received from people asking how to interpret licenses. Many of these people are new to the concept of free/open source licensing, but a sizable percentage aren't, and they've traditionally used the GPL and simply "thrown code out there" without really understanding what they're doing. I think we can do better than that, and it will benefit everyone involved. Take care, Lou -Original Message- From: Smith, Devin [mailto:[EMAIL PROTECTED]] Sent: Thursday, March 29, 2001 3:51 PM To: [EMAIL PROTECTED] Subject: RE: Subscription/Service Fees - OSD Intent Lou Grinzo wrote: I've contended for a long time that the primary problem with open/free licenses is that they're not specific enough. My experience (as a lawyer) with open/free licenses is that many of them are not properly drafted. The GNU GPL is particularly difficult to interpret, probably because it was written by a non-lawyer. The resulting legal uncertainty makes it very difficult for me to give sound advice to my clients, and makes licensing rights in or out under the GNU GPL very risky. Statements of intent are fine as separate commentary but only muddy the waters when included in documents that are meant to be legally binding. With regard to specificity, sometimes more is better but sometimes it's not needed and can be harmful. Statutory and case law frequently fill in the "gaps" left in agreements and there's no need to elaborate. For instance, if a license grants the licensee the right to create derivative works of the licensed software, the law provides that the licensee owns the derivative works created by the licensee (but not the underlying work on which the derivative work is based). So there's no need to add a provision that "licensee owns the derivative work and may distribute it . . ." In fact, adding a poorly drafted provision on the issue is even worse than staying silent. Finally, Randy Kramer is absolutely correct that "it is sometimes considered an advantage to never change the language of a law or agreement but allow the interpretation of the language to evolve." The best example of this that I can think of is insurance policies. The wording of the policies -- which is pretty standard from insurance company to insurance company -- is archaic and confusing to someone not familiar with insurance law. But the wording has been the subject of decades of court decisions (e.g. "advertising injury" includes claims of trademark infringement) and the meaning of most policies is now pretty much fixed. Insurance companies are loath to insert new language into policies lest the new wording be interpreted in a way that they did not intend. (There is, I believe, a lot of litigation brewing over the Y2K exclusions that insurance companies hastily issued before 1/1/00.) In the case of Open Source licenses, however, this stuff is too new for there to be any value in simply sticking with bad language. I did a search of Lexis recently and could not find a single case interpreting the GNU GPL or the Mozilla GL. Devin Smith
Re: Subscription/Service Fees
I'm sorry if someone has already said this, or something similar, but why can't people who want to distribute source, as they say, but keep a financial gain from it, use conditions like: 1) On paying the license fee, you have access to the source code - you may not distribute it in whole or in part, except illustrative excerpts not more then [x] lines long 2) You may modify the source code as you wish, and distribute you modifications only to other license holders. 3) On receiving a modified version of the source code, or any form of instructions as to its modification, you may not redistribute them to any unlicensed party, but may distribute freely to other license holders Make the evalutaion entirely closed-source, if you wish, or include pre-download or pre-execution agreement to a 30-day evaluation period with some or all of the rights And then not bother trying to claim it is Open Source, as it is clearly not SamBC
Re: Subscription/Service Fees - OSD Intent
"Smith, Devin" [EMAIL PROTECTED] writes: The GNU GPL is particularly difficult to interpret, probably because it was written by a non-lawyer. The GPL was extensively reviewed by the FSF lawyers. I personally have always found the GPL to be clear. The main problem I've seen people have with the GPL is that it does not define what a derivative work is. However, RMS feels that that is unavoidable, because the GPL is not a shrink wrap license. It is a description of rights permitted under copyright law. Because of that, the GPL can only apply to programs which are derivative works under copyright law. And copyright law on software is completely unclear. The resulting legal uncertainty makes it very difficult for me to give sound advice to my clients, and makes licensing rights in or out under the GNU GPL very risky. The GPL only applies to whether you can copy a program or not. It only applies to the work itself and to derivative works. If you can figure out what a derivative work is in software, then you understand the GPL. With regard to specificity, sometimes more is better but sometimes it's not needed and can be harmful. Statutory and case law frequently fill in the "gaps" left in agreements and there's no need to elaborate. For instance, if a license grants the licensee the right to create derivative works of the licensed software, the law provides that the licensee owns the derivative works created by the licensee (but not the underlying work on which the derivative work is based). So there's no need to add a provision that "licensee owns the derivative work and may distribute it . . ." In fact, adding a poorly drafted provision on the issue is even worse than staying silent. I don't know where you are getting that provision. I don't see it in the GPL. In the case of Open Source licenses, however, this stuff is too new for there to be any value in simply sticking with bad language. I did a search of Lexis recently and could not find a single case interpreting the GNU GPL or the Mozilla GL. There haven't been any. It's actually not in anybody's interest to bring a court case over the GPL. The only way it is likely to happen is if someone starts a law suit for philosophical reasons, and not that many people have both the cash and the motivation. Ian
RE: Subscription/Service Fees - OSD Intent
On Thu, 29 Mar 2001, Smith, Devin wrote: My experience (as a lawyer) with open/free licenses is that many of them are not properly drafted. The GNU GPL is particularly difficult to interpret, probably because it was written by a non-lawyer. The resulting legal uncertainty makes it very difficult for me to give sound advice to my clients, and makes licensing rights in or out under the GNU GPL very risky. What particular problems do you have with the GPL? IMO it is quite clearly written, as licenses go. I also think the Mozilla license is quite clear. -- * Phil Hunt * "An unforseen issue has arisen with your computer. Don't worry your silly little head about what has gone wrong; here's a pretty animation of a paperclip to look at instead." -- Windows2007 error message
Re: Subscription/Service Fees
On Thu, 29 Mar 2001, SamBC wrote: I'm sorry if someone has already said this, or something similar, but why can't people who want to distribute source, as they say, but keep a financial gain from it, use conditions like: 1) On paying the license fee, you have access to the source code - you may not distribute it in whole or in part, except illustrative excerpts not more then [x] lines long 2) You may modify the source code as you wish, and distribute you modifications only to other license holders. 3) On receiving a modified version of the source code, or any form of instructions as to its modification, you may not redistribute them to any unlicensed party, but may distribute freely to other license holders No reason at all. In fact, this sort of "gated community" license may well be advantagous for some purposes. And then not bother trying to claim it is Open Source, as it is clearly not Indeed. I (and I suspect most people on this list) have no problem with software that isn't open source, as long as they don't try to pass it off as open source. The sort of license you suggest above, if it included the proviso that it becomes open source (e.g. GPL'd) after a time delay, would be one I would approve of -- I'd be happy to buy software under that license. -- * Phil Hunt * "An unforseen issue has arisen with your computer. Don't worry your silly little head about what has gone wrong; here's a pretty animation of a paperclip to look at instead." -- Windows2007 error message
Re: Subscription/Service Fees - OSD Intent
On Thursday March 29 2001 12:51 pm, Forrest J Cavalier III wrote: There was also another point of contention. Apparently in German the idea of "right to do something" is not the same as "permission to do something." (It was very difficult to determine that it was this difference which was causing us to argue in circles.) That's interesting to know. But even in English the word "right" can be very confusing. In the case of software licenses, the users' rights granted by the author are synonymous with "permission" while the right retained by the author are synonymous with "priviledge". -- David Johnson ___ http://www.usermode.org
Re: Subscription/Service Fees - OSD Intent
Replying to several posts, sorry if this is confusing: Phil Hunt wrote: Or does #7 only apply to usage *other than* copying? If so, does this mean that if someone illegally encapsulates my GPL'd code then they can still legally run my program? As I understand it, the GPL does not restrict the private usage of the software in any way. You do all sorts of mean and nasty stuff to GPLd in the privacy of your own home. You just can't distribute it in some cases. Phil Hunt wrote: What about software that require registration (e.g. by email), but not a registration *fee*? Can that be Open Source? I don't believe it would be Open Source. Fees are not required to execute an additional license. Lou Grinzo wrote: As an editor an writer in the Linux field for some time, I'm dismayed by all the e-mail I've received from people asking how to interpret licenses. Many of these people are new to the concept of free/open source licensing, but a sizable percentage aren't, and they've traditionally used the GPL and simply "thrown code out there" without really understanding what they're doing. I've seen several cases of gross license misunderstanding. In a recent case, I saw on a FAQ the following (paraphrased): "This software was originally released under the BSD license. But since it now uses the Qt license, which is dual licensed as GPL/QPL, I must either one of those licenses. I have chosen the GPL." The FSF has a nice page explaining some licenses. Unfortunately it is rather biased towards copyleft and GPL compatibility. I would definitely like to see a similar page written from a more license-neutral stance. Ian Lance Taylor wrote: The main problem I've seen people have with the GPL is that it does not define what a derivative work is. However, RMS feels that that is unavoidable, because the GPL is not a shrink wrap license. It is a description of rights permitted under copyright law. Because of that, the GPL can only apply to programs which are derivative works under copyright law. And copyright law on software is completely unclear. Unfortunately, "derivative work" is not too well defined for software under copyright law either. Other confusing spots in the GPL are the operating system component , and module clauses. What are the extents of an operating system? And what is a module? -- David Johnson ___ http://www.usermode.org
