Re: Subscription/Service Fees - OSD Intent
On Thu, Mar 29, 2001 at 07:51:15AM -0500, Forrest J Cavalier III wrote: [...] 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 would have said that, precisely speaking, a member of the public doesn't have "the right to enter the museum." He has "the right to enter the museum upon paying admission." Many rights are limited or assume certain conditions. Living the the US, I have the right to free speech, but that doesn't mean that it is the "right to free speech without limits." Maybe I missed the distinction you were making. Chris -- Chris Sloan [EMAIL PROTECTED] Systems Software Engineer Green Hills Software
Re: Subscription/Service Fees - OSD Intent
At 01:23 AM 3/31/01 -0800, Chris Sloan wrote: On Thu, Mar 29, 2001 at 07:51:15AM -0500, Forrest J Cavalier III wrote: [...] 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 would have said that, precisely speaking, a member of the public doesn't have "the right to enter the museum." He has "the right to enter the museum upon paying admission." Many rights are limited or assume certain conditions. Living the the US, I have the right to free speech, but that doesn't mean that it is the "right to free speech without limits." Maybe I missed the distinction you were making. Chris -- Chris Sloan [EMAIL PROTECTED] Systems Software Engineer Green Hills Software Stepping away from a technical interpretation of the OSD, the requirement of a license fee seems inconsistent because it jeopardizes the primary byproduct resulting from the open source model of developing and distributing software - the stability and high quality of the product. When the potential talent pool from which a product can draw programmers is the world - the consequences show in the quality of the product. Charging a license fee to run the product reduces that talent pool to a company's programmers and its paying customers. What's more it means centralized control. This isn't bazaar - its cathedral. Carol
RE: Subscription/Service Fees - OSD Intent
On Saturday, 31 March 2001 11:32 PM, Carol A. Kunze wrote: - Stepping away from a technical interpretation of the OSD, - the requirement - of a license fee seems inconsistent because it jeopardizes - the primary - byproduct resulting from the open source model of developing and - distributing software - the stability and high quality of - the product. - - When the potential talent pool from which a product can draw - programmers is - the world - the consequences show in the quality of the product. - - Charging a license fee to run the product reduces that - talent pool to a - company's programmers and its paying customers. What's more - it means - centralized control. This isn't bazaar - its cathedral. I believe most organizations which have looked into charging a license fee on software which would otherwise be Free Open Source do not wish to charge everyone. In fact, the common intent seems to be to charge ONLY those companies that use the product for a commercial purpose and derive revenue from it. In essence, "If you make money using the product then you must pay, if you use it privately or just make modifications to it then you don't need to pay." With this approach anyone may still work on the product. Furthermore, in many cases the intent of charging the license is twofold. 1) Naturally the creator is trying to get a return on their investment of creating a product which perhaps would not exist if they didn't invest the time in the first place. 2) More importantly, many creators wish to share the revenue in some way with developers who contribute modifications to the project thereby encouraging development. In most bazaars the prime space for stalls is often owned by someone who rents it to the merchants. Perhaps the "owners" were merchants themselves when the bazaar was a free-for-all an managed to hold and expand their prime position, this is the nature of enterprise. The owners of space do make money but they generally reinvest in the infrastructure for the bazaar to the good of everyone. Regards, David Davies
Re: Subscription/Service Fees - OSD Intent
on Fri, Mar 30, 2001 at 11:40:35AM -0800, Laura Majerus ([EMAIL PROTECTED]) wrote: -Original Message- From: Ben Tilly [mailto:[EMAIL PROTECTED]] To: [EMAIL PROTECTED]; [EMAIL PROTECTED] ... 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 is none for the GNU GPL. The resulting uncertainty is often branded as a weakness. But IMHO it should be viewed as a strength. Plenty of companies who were not particularly friendly to the GPL have been challenged for GPL violations. *NOT ONE* (after full review by their lawyers) thought that their odds of winning a case against it was good enough to take it to court. In my books that is pretty reassuring. :-) Cheers, Ben _ Get your FREE download of MSN Explorer at http://explorer.msn.com I'm collecting information on gpl disputes that have been settled amicably (or at least settled out of court). "Plenty of companies" is a bit vague. Pointers anyone? Among the more often cited, NeXT computer and the g++ compiler extensions. For general information, Eben Moglen or the FSF are a good start. Jeremy Allison, Samba Team (and VA Linux employee), has chased after any number of folks who've really liked the idea of a Legacy MS Windows-compatible networked fileshare but didn't feel quite the same about the GNU GPL. Some entertaining stories there. John Carmack, of Doom and Id Software fame, has had a few brushes, including one fellow who essentially tried to release Doom under an NDA-type agreement. This story was carried at Slashdot, which is also a good place to look for various allegations of GPL violations -- the words "GPL violation" turns up several hundred articles. The Carmack story is here: http://slashdot.org/articles/00/02/23/2014205.shtml My own experience in this light was with Microsoft's Unix Services for Windows NT. Several GNU utilities were included in binary format w/o sources or other GPL section 3 requirements. A note to Doug Miller (Microsoft VP of product marketing, former CEO of Interix, from whence the product was derived) wrote back with a "thanks for bringing this to our attention, we'll fix it". Not even an attempt at a fight. They pick theirs, I'm sure, and this certainly wasn't it. -- Karsten M. Self [EMAIL PROTECTED]http://kmself.home.netcom.com/ What part of "Gestalt" don't you understand? There is no K5 cabal http://gestalt-system.sourceforge.net/ http://www.kuro5hin.org PGP signature
Re: Subscription/Service Fees - OSD Intent
Corel had two recent GPL conflicts. First, they held a "private" beta that wasn't that private. Nothing much came of this one. The beta ended and all the source was publicly available. Second, they wrote a (pre-GPL) Qt front end to Debian apt-get. In this case, the original author gave Corel permission to do so. -- David Johnson ___ http://www.usermode.org
Re: Subscription/Service Fees - OSD Intent
Randy Kramer wrote: 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." After a little more thought, maybe I'd want to rephrase the preceding more like: The approved Open Source licenses have been approved on the basis that we (the OSF or whatever) believe the language of the approved licenses is consistent with the objectives stated above." It's probably irrelevant, because I don't see anyone jumping at the chance to draft such a statement. The reason for my change is to try to make it clear that I (we) are worried about how the language might be (mis) interpreted -- the hope is that the statement of intent is very clear and concise, and if there is some legal gobbledygook in the language of the license that could be interpreted in more than one way, our intent is that it be interpreted in accordance with the clear, concise statement of intent. IANAL, IANAL, IANAL Randy Kramer
RE: Subscription/Service Fees - OSD Intent
"Smith, Devin" [EMAIL PROTECTED] wrote: 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. The GNU GPL also is a very novel structure. IANAL, but I have seen plenty of lawyers agree that it is a copyright statement that offers a contract. Should you proceed to distribute you have accepted the contract and are bound to it under contract law, *NOT* copyright law. Or at least that is how the license is intended to work. In the absence of court decisions, it is hard to say that this would work. But that is the intended mechanism. 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. This comment is only true when the intended audience is a group of lawyers. Consider well that the majority of people who read the GPL and try to understand it are not (in my experience) lawyers. 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.) The best known example among politically aware programmers is probably the US Constitution. 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 is none for the GNU GPL. The resulting uncertainty is often branded as a weakness. But IMHO it should be viewed as a strength. Plenty of companies who were not particularly friendly to the GPL have been challenged for GPL violations. *NOT ONE* (after full review by their lawyers) thought that their odds of winning a case against it was good enough to take it to court. In my books that is pretty reassuring. :-) Cheers, Ben _ Get your FREE download of MSN Explorer at http://explorer.msn.com
RE: Subscription/Service Fees - OSD Intent
I'm collecting information on gpl disputes that have been settled amicably (or at least settled out of court). "Plenty of companies" is a bit vague. Pointers anyone? Laura Majerus -Original Message- From: Ben Tilly [mailto:[EMAIL PROTECTED]] Sent: Friday, March 30, 2001 11:31 AM To: [EMAIL PROTECTED]; [EMAIL PROTECTED] Subject: RE: Subscription/Service Fees - OSD Intent ... 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 is none for the GNU GPL. The resulting uncertainty is often branded as a weakness. But IMHO it should be viewed as a strength. Plenty of companies who were not particularly friendly to the GPL have been challenged for GPL violations. *NOT ONE* (after full review by their lawyers) thought that their odds of winning a case against it was good enough to take it to court. In my books that is pretty reassuring. :-) Cheers, Ben _ Get your FREE download of MSN Explorer at http://explorer.msn.com
Re: Subscription/Service Fees - OSD Intent
Laura Majerus writes: I'm collecting information on gpl disputes that have been settled amicably (or at least settled out of court). "Plenty of companies" is a bit vague. Pointers anyone? You should ask Professor Eben Moglen. http://old.law.columbia.edu/ -- Seth David Schoen [EMAIL PROTECTED] | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5
RE: Subscription/Service Fees - OSD Intent
When you get it, pls. post the information to the list, if you can do so legally and without ruffling too many feathers. Should make for some interesting reading. g Take care, Lou -Original Message- From: Laura Majerus [mailto:[EMAIL PROTECTED]] Sent: Friday, March 30, 2001 2:41 PM To: '[EMAIL PROTECTED]' Subject: RE: Subscription/Service Fees - OSD Intent I'm collecting information on gpl disputes that have been settled amicably (or at least settled out of court). "Plenty of companies" is a bit vague. Pointers anyone? Laura Majerus -Original Message- From: Ben Tilly [mailto:[EMAIL PROTECTED]] Sent: Friday, March 30, 2001 11:31 AM To: [EMAIL PROTECTED]; [EMAIL PROTECTED] Subject: RE: Subscription/Service Fees - OSD Intent ... 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 is none for the GNU GPL. The resulting uncertainty is often branded as a weakness. But IMHO it should be viewed as a strength. Plenty of companies who were not particularly friendly to the GPL have been challenged for GPL violations. *NOT ONE* (after full review by their lawyers) thought that their odds of winning a case against it was good enough to take it to court. In my books that is pretty reassuring. :-) Cheers, Ben _ Get your FREE download of MSN Explorer at http://explorer.msn.com
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/unmodifie
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
RE: Subscription/Service Fees - Legality
On Wednesday, 28 March 2001 8:57 AM, Seth David Schoen wrote: - Some people think that copyright law doesn't actually allow you to - prevent people who have a legal copy of the software from using it in - any way they like. In other words does transferring the software to another person also transfer the person the right to use that software ? Since legal obligations are inherently regional in nature perhaps the deeper question is whether such an obligation is morally enforceable. If a person chooses to release software (and source code) they have the right to release it under whatever terms they choose. This is a basic right of the person who created it. No ? If the terms state clearly an obligation for people to pay for the software if they choose to use it then by using the software we are obliged to honor the creators terms, are we not? The user of the software has the right to choose whether they use the software or not. This is the basic right of the user. If the user does not want to comply with the terms they should choose not to use the software. - D. J. Bernstein, author of qmail, is a well-known proponent of this - view: - - http://cr.yp.to/softwarelaw.html - The site makes many very interesting points. One key point of the argument is the "In the United States, once you own a copy of a program, you can back it up, compile it, run it, and even modify it as necessary, without permission from the copyright holder." The key point being "once you own" and the question raised therefore must be at what point do you "own" the software. After you obtain it by any means or After you comply with the stated terms of the copyright holder. And does this apply only to Closed Source Software ? If so why ? An interesting scenario. Suppose I download the 120-day evaluation edition of MS Exchange 2000 from MS site in accordance with the evaluation agreement. Is the software I receive mine because it is obtained legally ? If I apply a binary patch that alters the software so it will to continue to work after the 120 day period am I able to continue to use that software indefinitely ? Whilst noone likes paying money to Microsoft I think this is wrong. - The usual assumption in the free software community has been that - probably software _can_ be accompanied with a legally binding license - which even regulates non-copyright activities. But people don't - necessarily think that this is a good situation, just that - this is the - way the courts or the industry are going. It is perhaps NOT a good situation looking at it purely from the perspective of making software more freely available. In terms of freeing intellectual property and advancing computer science it might be a very good thing. (I thought these were the greater goals of the OSI.) If by having a means of deriving revenue directly from initial development efforts more commercial (and closed source) companies were to release software as Open Source then that may be to everyone's advantage. Just a thought ! - Professor Bernstein points out that there is no consistent legal - precedent in the U.S. for licenses to regulate use. Free software - licenses mostly don't attempt to -- although some licenses - claim to be - contracts. - I think the uncertainty around this question prevented the OSD from - specifically saying that the license must not forbid the program from - being used for any purpose by anyone who has a copy. So perhaps it can't be legally enforced in the U.S. (and elsewhere)? That seems to be a very good reason why the OSD would not include such a clause. Does the decision to NOT include such a clause therefore indicate that the OSD is NOT attempting to define such conditions as acceptable or not and leaving it open to legal jurisdiction? In other words is this perhaps something that is neither acceptable or unacceptable under the OSD?
Re: Subscription/Service Fees - Legality
On Wednesday March 28 2001 08:27 am, David Davies wrote: One key point of the argument is the "In the United States, once you own a copy of a program, you can back it up, compile it, run it, and even modify it as necessary, without permission from the copyright holder." The key point being "once you own" and the question raised therefore must be at what point do you "own" the software. After you obtain it by any means or After you comply with the stated terms of the copyright holder. I have always held the radical opinion that if I've paid for it, it's mine! I go into a store, see a shrink wrapped box with the symbol $59.95 on it. I give the retail cashier $59.95, she gives me a receipt. It's mine, damnit! If, instead, the software is being rented to me, I want to know before hand. If I am only purchasing the rights to use the program, I want to know before hand. And does this apply only to Closed Source Software ? If so why ? In the absence of a contract or other agreement (such as most licenses, whether or not you agree to them), any *copies* of software you legally aquire are your personal property. It doesn't matter if it's Open Source or not. An interesting scenario. Suppose I download the 120-day evaluation edition of MS Exchange 2000 from MS site in accordance with the evaluation agreement. Is the software I receive mine because it is obtained legally ? Did you agree to the terms of the evaluation? If so then you are under contract and must abide by those terms. If, on the other hand, you find yourself in possession of the software through other channels, then you probably don't have a legal copy anyway. -- David Johnson ___ http://www.usermode.org
RE: Subscription/Service Fees - OSD Intent
On Wednesday, 28 March 2001 8:45 AM, David Johnson wrote - The OSD is an attempt to formally define Free Software (*). - It was never - meant, I believe, to be a list of restrictions on licenses. Because of the well known ambiguity between Free (Beer) and Free (Speech) It would seem this is one area where the OSD should be particularly clear and spell out it's position. Is it trying to encourage the distribution of source code with software for the purpose of sharing knowledge? I'm sure this is the case so it is a rhetorical question. Is there a secondary purpose to also ensure that the software can be obtained and used without payment? Either Way if the definition exists at all it should make this fundamental point clear. On Wednesday, 28 March 2001 3:45 AM, David Johnson wrote: - This is the second thread in half a year trying to figure - out some way to - charge for usage of Open Source. Why? Why do you want to - charge usage fees - for Open Source Software? Why not stick with a normal - shareware license and - be done with it? I don't think that is the case at all, actually the reverse. It is trying to figure out whether a Software License which would require usage fees but would otherwise comply with the terms of the OSD would meet the OSI definition of "Open Source". It is NOT a case of trying to change the definition of "Open Source" but only of trying to understand and clarify what "Open Source" is accepted to mean. It is good that there is a forum for such discussion but if the issue has been raised before then doesn't it suggest that this should be clarified in the OSD? Regards, David Davies
Re: Subscription/Service Fees
If you really want registration fees from all users, then why not just keep your software closed source? Because "Open Source" and "Free Software" are ideologies. And a lot I know think, its right to incluse the source code. But its not right to get no fees from those who use the software (esecialy if those drive their business with it). So the man likely looks for a broad distribution, and all who likes it and benefit from it should pay a fee. Everybody should have access to the source code. I think this mailing list would run much better if people here would try to understand that ther is still demand to ordinyry sell software. Not everynody is in the habit of living from Consulting contracts etc. Also its a bit pathetic to say: "Yeah, he gives you also the source, but that is not Open Source. He should make it closed sorce again or true open source". That doesn't serve anybody. Regards, Angelo Schneider -- Angelo Schneider OOAD/UML [EMAIL PROTECTED] Putlitzstr. 24 Patterns/FrameWorks Fon: +49 721 9812465 76137 Karlsruhe C++/JAVAFax: +49 721 9812467
Re: Subscription/Service Fees - OSD Intent
On Wednesday March 28 2001 09:07 am, David Davies wrote: Is there a secondary purpose to also ensure that the software can be obtained and used without payment? It's pretty clear that the software can be used without payment. The only fees allowable are for the purposes of obtaining it. -- David Johnson ___ http://www.usermode.org
Re: Subscription/Service Fees
On Wednesday March 28 2001 12:27 pm, Angelo Schneider wrote: If you really want registration fees from all users, then why not just keep your software closed source? Also its a bit pathetic to say: "Yeah, he gives you also the source, but that is not Open Source. He should make it closed sorce again or true open source". That doesn't serve anybody. I was not attempting to cast disparaging remarks upon closed source and proprietary software, or to imply imoral behavior, or anything like that. But Open Source has some minimum requirements, and if those requirements are not met then the software is not Open Source. -- David Johnson ___ http://www.usermode.org
RE: Subscription/Service Fees
Title: RE: Subscription/Service Fees Gentle people, I hate to jump in the middle, sorry for the distraction. IMHO, what you describe is not open source or free software, but rather you can't buy this software. Carter Carter Bullard QoSient, LLC 300 E. 56th Street, Suite 18K New York, New York 10022 [EMAIL PROTECTED] Phone +1 212 588-9133 Fax +1 212 588-9134 http://qosient.com
RE: Subscription/Service Fees
Title: RE: Subscription/Service Fees Hey Dave, Hmmm, I did think that we were talking about licenses, but lets correct the statement. I hate to jump in the middle, sorry for the distraction. IMHO, what you describe is not open source or free software, but rather you can't buy this software license. Carter -Original Message- From: Dave J Woolley [mailto:[EMAIL PROTECTED]] Sent: Wednesday, March 28, 2001 1:23 PM To: 'License-Discuss (E-mail)' Subject: RE: Subscription/Service Fees From: Carter Bullard [SMTP:[EMAIL PROTECTED]] I hate to jump in the middle, sorry for the distraction. IMHO, what you describe is not open source or free software, but rather you can't buy this software. [DJW:] You generally can't buy conventional commercial software either. You can buy a licence to use it, the media it is on, and the service of placing it on that medium but not the actual intellectual property. -- --- DISCLAIMER - Any views expressed in this message are those of the individual sender, except where the sender specifically states them to be the views of BTS.
Re: Subscription/Service Fees
Angelo Schneider [EMAIL PROTECTED] writes: I think this mailing list would run much better if people here would try to understand that ther is still demand to ordinyry sell software. Not everynody is in the habit of living from Consulting contracts etc. I think most people on this list understand that. Also its a bit pathetic to say: "Yeah, he gives you also the source, but that is not Open Source. He should make it closed sorce again or true open source". That doesn't serve anybody. I think very few people on this list say that. What we do say is something which I think is very simple: open source has a meaning. It is probably true that it is harder to make money producing software that is open source than it is producing software which is not open source. However, that fact does not in any way mean that we should change the definition of open source. Quite a few people on this list have said that if you want to provide source, along with a license fee, by all means go and do it. Just don't call it open source. I think that is a very simple position. I honestly can not understand why anybody has a problem with it. Ian
RE: Subscription/Service Fees - OSI Intent
On Thursday, 29 March 2001 4:35 AM, Ian Lance Taylor wrote: - What we do say is something which I think is very simple: open source - has a meaning. It is probably true that it is harder to make money - producing software that is open source than it is producing software - which is not open source. However, that fact does not in - any way mean - that we should change the definition of open source. - - Quite a few people on this list have said that if you want to provide - source, along with a license fee, by all means go and do it. Just - don't call it open source. - - I think that is a very simple position. I honestly can not - understand - why anybody has a problem with it. That's a great point that everyone can respect. But who decides what the definition of Open Source is ? If that is the meaning of Open Source shouldn't it be spelt out a little better in the OSD ? If it is NOT stated clearly in the OSD then the assumption can be made that this is NOT an issue that the OSD intends to cover. "Quite a few people on this List" do not necessarily represent the OSI nor can they (or the OSI really) dictate what is understood by the term Open Source. It may or may not be the case that a clause obliging a user to pay a license fee would make a license non-compliant with the OSD. Regards, David Davies
Re: Subscription/Service Fees - OSI Intent
begin David Davies quotation: That's a great point that everyone can respect. But who decides what the definition of Open Source is ? http://www.opensource.org/osd.html does, because: 1. It's the only clear yardstick we have, and 2. The OSI got there first. If you want a concept that means something else, kindly avail yourself of the huge combinatorial possibilties that the Roman alphabet affords, and invent some other name. If that is the meaning of Open Source shouldn't it be spelt out a little better in the OSD ? I don't know: It's seemed to bear up very well over the years. Only a few people have failed to grasp the spirit of the document, even while arguing over the letter of it. Of course, OSI _certifications_ ensures in part that "holes" in the literal text cannot be used to pull a fast one over the open-source community -- e.g., attempting to justify shareware licensing. "Quite a few people on this List" do not necessarily represent the OSI nor can they (or the OSI really) dictate what is understood by the term Open Source. Indeed, you could always try appealing to the "silent majority": It worked for Nixon. -- Cheers, Right to keep and bear Rick Moen Haiku shall not be abridged [EMAIL PROTECTED] Or denied. So there.
Re: Subscription/Service Fees - OSD Intent
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. It is possible that upon registering the software, the license could convert to an Open Source license. From that point on, that copy and all derivatives of it cannot require a registration fee and remain Open Source. Does this make more sense? -- David Johnson ___ http://www.usermode.org
Re: Subscription/Service Fees - OSD Intent
Eric Jacobs [EMAIL PROTECTED] writes: David Johnson [EMAIL PROTECTED]: It may certainly be possible to have a registration fee for Open Source software. I am not denying that. However, until such a time as the registration fee is paid, the software cannot be considered Open Source. If a registration fee were allowed in an Open Source license, then if Andy has paid the registration fee, then gives the software to Bob, Bob does not have to pay the registration fee, since all the rights attached to the Andy's copy of the software transfer to Bob (#7). It is this sort of illogical argument that will prevent this issue from ever coming to rest. Let me offer an analogy. ) It may certainly be possible to have a [requirement that derivative works ) be licensed under the GPL] for Open Source software. I am not denying ) that. However, until such a time as the [requirement that derivative ) works be licensed under the GPL] is [met], the software cannot be ) considered Open Source. If a [requirement that derivative works be ) licensed under the GPL] were allowed in an Open Source license, then ) if Andy has [met the requirement by distributing his derivative work ) under the GPL], then gives the software to Bob, Bob does not have to ) [meet the requirement to distribute derivative works under the GPL], ) since all the rights attached to the Andy's copy of the software ) transfer to Bob (#7). Plainly, this is not what #7 means. Argument by analogy is always tricky. In this case, I don't think your analogy is correct. Your analogy presumes a scenario in which Andy has a legally obtained copy of the source but is not under the requirement that derivative works be licensed under the GPL. That is implied by your statement that Bob has all the rights which Andy has but does not have the requirement of distributing under the GPL. Here is my interpretation of David Johnson's point. If Andy has a copy of a program under an open source license which requires paying a license fee, and Andy pays that license fee, and Andy distributes the program to Bob, then by OSD #7 Bob has all the rights that Andy has. If Andy has the right to run the program, then Bob also has the right to run the program. If we apply your analogy to this, you are quite correct that if Andy has a copy of a program under an open source license which does not require redistribution under the GPL, and Andy distributes the program to Bob, then Bob is not require to redistribute under the GPL. But that argument proves nothing interesting. A way to work around this is to provide a license which is an open source license but which says that every time you run the program you must pay the developer a dollar. This gets back to the fact we've discussed before, which is that the OSD does not clearly state that 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. Ian
Re: Subscription/Service Fees - OSI Intent
David Davies [EMAIL PROTECTED] writes: It may or may not be the case that a clause obliging a user to pay a license fee would make a license non-compliant with the OSD. Well, I kind of think it would. But the way to test that is to propose a license which requires a license fee, and to try to get it OSI certified. If the license is rejected, I think we can safely say that it is not open source. Ian
Re: Subscription/Service Fees - OSD Intent
Ian Lance Taylor [EMAIL PROTECTED]: ) It may certainly be possible to have a [requirement that derivative works ) be licensed under the GPL] for Open Source software. I am not denying ) that. However, until such a time as the [requirement that derivative ) works be licensed under the GPL] is [met], the software cannot be ) considered Open Source. If a [requirement that derivative works be ) licensed under the GPL] were allowed in an Open Source license, then ) if Andy has [met the requirement by distributing his derivative work ) under the GPL], then gives the software to Bob, Bob does not have to ) [meet the requirement to distribute derivative works under the GPL], ) since all the rights attached to the Andy's copy of the software ) transfer to Bob (#7). Plainly, this is not what #7 means. Argument by analogy is always tricky. In this case, I don't think your analogy is correct. Your analogy presumes a scenario in which Andy has a legally obtained copy of the source but is not under the requirement that derivative works be licensed under the GPL. That is implied by your statement that Bob has all the rights which Andy has but does not have the requirement of distributing under the GPL. There is no such implication. A "not" has slipped in there! I am considering the case where Andy is licensed under some condition (whether it is a requirement that any derivative works be distributed under the GPL, or perhaps a requirement to pay a fee.) My statement that Bob has all the rights which Andy has but does not have the requirement of distributing under the GPL is derived from David Johnson's argument about OSD #7 -- namely, that a recipient of Open Source software gains all of the rights that the distributor had with regard to the software, _without_ having to meet any of the requirements that the distributor did. Here is my interpretation of David Johnson's point. If Andy has a copy of a program under an open source license which requires paying a license fee, and Andy pays that license fee, and Andy distributes the program to Bob, then by OSD #7 Bob has all the rights that Andy has. If Andy has the right to run the program, then Bob also has the right to run the program. That's how I understood it also. But no Open Source licenses (that I can think of) actually work that way. If Andy gives Bob a copy of the software, that does not mean that Bob should automatically be granted Andy's rights, _without_ meeting the conditions under which Andy obtained them. If we apply your analogy to this, you are quite correct that if Andy has a copy of a program under an open source license which does not require redistribution under the GPL, and Andy distributes the program to Bob, then Bob is not require to redistribute under the GPL. But that argument proves nothing interesting. That is not my analogy. I will be more explicit. Scenario 1 - Andy obtains a copy of a software program. - Andy reads the license. The license states, in part, that it will grant him rights to copy, modify, distribute and prepare derivative works, under certain conditions. The conditions include a requirement to pay a fee. - Andy accepts the license. Andy is now granted those rights. Andy has also now incurred an obligation to pay the fee. - Andy gives a copy of the program to Bob. (Legally, as Andy has been granted that right.) - Bob reads the license. The license states, in part, that if he has received his copy from somebody who was granted rights under this license, Bob is also granted those rights. - Bob accepts (or doesn't accept) the license. In case he accepts, he does not have to pay a fee to copy, modify, distribute, or prepare derivative works. Scenario 2 - Andy obtains a copy of a software program. - Andy reads the license. The license states, in part, that it will grant him rights to copy, modify, distribute and prepare derivative works, under certain conditions. The conditions include a requirement that any derivative works of the software that Andy creates must be licensed under the GPL. - Andy accepts the license. Andy is now granted those rights. Andy has also now incurred an obligation that any derivative work of the software he should create must be licensed under the GPL. - Andy gives a copy of the program to Bob. (Legally, as Andy has been granted that right.) - Bob reads the license. The license states, in part, that if he has received his copy from somebody who was granted rights under this license, Bob is also granted those rights. [Note: This license is not the GNU GPL, obviously.] - Bob accepts (or doesn't accept) the license. In case he accepts, he may prepare derivative works and license them under any license he chooses. A way to work around this is to provide a license which is an open source license but which says that every time
Re: Subscription/Service Fees - OSD Intent
On Thursday March 29 2001 05:35 am, Eric Jacobs wrote: My statement that Bob has all the rights which Andy has but does not have the requirement of distributing under the GPL is derived from David Johnson's argument about OSD #7 -- namely, that a recipient of Open Source software gains all of the rights that the distributor had with regard to the software, _without_ having to meet any of the requirements that the distributor did. Yup, that's pretty much what I said. I'll still stick by it. And that's why I don't believe that shareware Open Source is possible, because the recipient does not receive the same rights as the distributor. Paying a registration fee is something additional that the recipient must do before gaining full rights to the program. A payment (execution) to unlock additional rights (license), is not allowed by definition #7. The recipient gets all of the rights of the distributor. In the case of the GPL, the recipient can run the program without having to worry about a thing. He can also distribute the program provided he follows certain conditions, which is exactly the same rights as the distributor! Nothing has changed. There is no case where the distributor can do one thing but the recipient cannot. There may be conditions to those rights, but those conditions are the same for both parties. -- David Johnson ___ http://www.usermode.org
Re: Subscription/Service Fees
On Tuesday March 27 2001 08:16 am, David Davies wrote: It appears that the Open Source definition would not specifically limit a license from requiring users to pay a subscription fee or month service fee for using the software. Perhaps I am missing something? You can charge your customers whatever they will bear in order to acquire the software. However, you may not prevent them from distributing it to someone else for no charge. I don't see anything in the OSD that *specifically* forbids usage charges. But so what? Whether or not the OSD allows "usage charges" is irrelevant. All I have to do is give a copy to my friend, he gives me a copy back, and I don't have to pay him nor does he have to pay you. Tada! However, playing devil's advocate, you could distribute it as normal closed source shareware, and only offer an Open Source license upon registration... -- David Johnson ___ http://www.usermode.org
Re: Subscription/Service Fees
on Tue, Mar 27, 2001 at 06:09:03PM +0900, David Davies ([EMAIL PROTECTED]) wrote: On Tuesday, 27 March 2001 9:44 AM, David Johnson wrote On Tuesday March 27 2001 08:16 am, David Davies wrote: It appears that the Open Source definition would not specifically limit a license from requiring users to pay a subscription fee or month service fee for using the software. Perhaps I am missing something? You can charge your customers whatever they will bear in order to acquire the software. However, you may not prevent them from distributing it to someone else for no charge. I don't see anything in the OSD that *specifically* forbids usage charges. But so what? Whether or not the OSD allows "usage charges" is irrelevant. All I have to do is give a copy to my friend, he gives me a copy back, and I don't have to pay him nor does he have to pay you. Tada! Maybe I don't get some key part. I wasn't thinking of any form of copying restriction, only having it clearly stated in the license that if you continue to use the software you are required to pay $x to xyz inc. Nope. Violates #7: "The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties". http://www.opensource.org/docs/definition.html You can charge for subscriptions to updates (Cf: Red Hat). You can't charge for ongoing execution rights. You repeat this error several times in your post. There is no way to stop user A giving it to user B, and in fact that action is likely to be actively encouraged as it is with shareware. However, if the license clearly states an obligation to register and pay a subscription fee then users who are complying with either the legal or moral implication of the license will often pay. Does making the Source Open negate this obligation in some way? (That is assuming that you accept the obligation is valid in the first place) The OSD is not compatible with your stated goals. Netscape was able to actively sell into those corporations in a very interesting manner. "Since you already have our products and the license says you are required to pay we suggest you pay us." Support this statement with a citation and/or reference. However, playing devil's advocate, you could distribute it as normal closed source shareware, and only offer an Open Source license upon registration... Perhaps the issue is whether distributing software to a 3rd party means you have also transferred the right to use that software also. #7. -- Karsten M. Self [EMAIL PROTECTED]http://kmself.home.netcom.com/ What part of "Gestalt" don't you understand? There is no K5 cabal http://gestalt-system.sourceforge.net/ http://www.kuro5hin.org PGP signature
Re: Subscription/Service Fees
"Karsten M. Self" [EMAIL PROTECTED] writes: Netscape was able to actively sell into those corporations in a very interesting manner. "Since you already have our products and the license says you are required to pay we suggest you pay us." Support this statement with a citation and/or reference. Do you not believe that? I also thought that that was what they did. Of course, it was before Netscape was using an open source license. Back then the Netscape license said you could use it for some time for free (30 days, maybe) and then you had to purchase a license. This was not enforced by the code. I actually purchased a license, myself. I paid $30 or so. Netscape sent me a piece of paper. It was only after Internet Explorer was released for free that Netscape went to fully free licensing, and, for Mozilla, open source. If David thinks that Netscape asked for licensing fees after they were under an open source license, I'm sure he is mistaken. Ian
Re: Subscription/Service Fees
"Karsten M. Self" [EMAIL PROTECTED]: I wasn't thinking of any form of copying restriction, only having it clearly stated in the license that if you continue to use the software you are required to pay $x to xyz inc. Nope. Violates #7: "The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties". http://www.opensource.org/docs/definition.html How is there an additional license required? A requirement to pay somebody something does not imply that an additional license is required. I believe the original poster is envisioning it simply as a clause in the (sole) license. You can charge for subscriptions to updates (Cf: Red Hat). You can't charge for ongoing execution rights. Of course not. "Execution rights" are not among the exclusive rights listed in 17 USC 106 (assuming we are talking about a copyright license in the US), so it makes no sense to talk about granting them. A shareware style requirement to pay for use is not a matter of granting (or not granting) specific rights, but of imposing obligations in return for the rights which are granted. Clearly, #7 does not apply. --
Re: Subscription/Service Fees
David Davies writes: Maybe I don't get some key part. I wasn't thinking of any form of copying restriction, only having it clearly stated in the license that if you continue to use the software you are required to pay $x to xyz inc. There is no way to stop user A giving it to user B, and in fact that action is likely to be actively encouraged as it is with shareware. However, if the license clearly states an obligation to register and pay a subscription fee then users who are complying with either the legal or moral implication of the license will often pay. Some people think that copyright law doesn't actually allow you to prevent people who have a legal copy of the software from using it in any way they like. D. J. Bernstein, author of qmail, is a well-known proponent of this view: http://cr.yp.to/softwarelaw.html The usual assumption in the free software community has been that probably software _can_ be accompanied with a legally binding license which even regulates non-copyright activities. But people don't necessarily think that this is a good situation, just that this is the way the courts or the industry are going. Professor Bernstein points out that there is no consistent legal precedent in the U.S. for licenses to regulate use. Free software licenses mostly don't attempt to -- although some licenses claim to be contracts. I think the uncertainty around this question prevented the OSD from specifically saying that the license must not forbid the program from being used for any purpose by anyone who has a copy. -- Seth David Schoen [EMAIL PROTECTED] | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5
Re: Subscription/Service Fees
On Tuesday March 27 2001 09:09 am, David Davies wrote: Maybe I don't get some key part. I wasn't thinking of any form of copying restriction, only having it clearly stated in the license that if you continue to use the software you are required to pay $x to xyz inc. There's one key element of Open Source and Free Software that unfortunately is not explicitly spelled out in boldface in the OSD. But everyone agrees to it regardless of political ideology: once you own a copy of Open Source Software, you *own* the copy. And as the owner no one else can tell you that you can or cannot use it. Copyright Law will give you justification to restrict its distribution and public performance, but it gives you no legal grounds to prevent its use. There is no way to stop user A giving it to user B, and in fact that action is likely to be actively encouraged as it is with shareware. However, if the license clearly states an obligation to register and pay a subscription fee then users who are complying with either the legal or moral implication of the license will often pay. If I have given my friend a copy of an Open Source program, they now possess a legal copy. You cannot restrict their usage of it. This is much like what Netscape did originally. Many private users I assume didn't register or pay for Navigator, but most corporations did. Netscape Navigator was not Open Source at the time. Perhaps the issue is whether distributing software to a 3rd party means you have also transferred the right to use that software also. Absolutely you have! Definition #7. And according to a link given elsewhere in this thread, Copyright Law does not give you exclusive right to usage so that you can subsequently parcel that right out. This is the second thread in half a year trying to figure out some way to charge for usage of Open Source. Why? Why do you want to charge usage fees for Open Source Software? Why not stick with a normal shareware license and be done with it? -- David Johnson ___ http://www.usermode.org
RE: Subscription/Service Fees - Netscape
On Wednesday, 28 March 2001 7:25 AM, Karsten M. Self wrote: -Netscape was able to actively sell into those - corporations in a very -interesting manner. "Since you already have our - products and the -license says you are required to pay we suggest you pay us." - - Support this statement with a citation and/or reference. - - Do you not believe that? I also thought that that was - what they did. - - The statement is strongly worded, isn't supported by - reference, and is - ambiguously stated. Does the statement mean that these companies are - obligated to pay for use of Mozilla because of their prior - licensing of - Netscape versions = 4.x? Does it refer to Netscape server-side - products? Does it refer to contractual obligations to pay - for software - through some specified time period? Sorry for being unspecific but I did say in the paragraph immediately prior "This is much like what Netscape did originally." Originally (at the beginning) implies the practice is not continued to this date. Regarding the statement it was not meant to be an exact quote. I was consulting on intranet projects at a number of larger corporations during '97 and '98 and saw first hand Netscape's approach to sales. I meant to express only the tone of the approach Netscape took in sales to these companies. To clarify. The example refers to Netscape sales activity during '97 and '98 and perhaps a little on either side. It is my experience only but I assume other people will be able to verify whether it was a prevailing practice or not. It only applies to people who used versions = 4.x of Navigator and only to the registration fee.
RE: Subscription/Service Fees
On Wednesday, 28 March 2001 7:36 AM, Eric Jacobs wrote : - Violates #7: "The rights attached to the program must - apply to all to - whom the program is redistributed without the need for - execution of an - additional license by those parties". - - http://www.opensource.org/docs/definition.html - - How is there an additional license required? A requirement - to pay somebody - something does not imply that an additional license is - required. I believe - the original poster is envisioning it simply as a clause in - the (sole) - license. I confirm that that was what I envisioned. I can see no reason why a clause can not be added to the license that states; " x.1 If you continue to use this software or any derived work after a thirty (30) day evaluation period you are required to register it. x.2 Registration can be performed at register.xyz.com " This would also require another clause as follows for it to apply to derived works also. " y.1 Redistributions of source code or any derived works must retain the above copyright notice, this list of conditions and the following disclaimer. y.2 Redistributions of this product or derived works in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution." - You can charge for subscriptions to updates (Cf: Red - Hat). You can't - charge for ongoing execution rights. - - Of course not. "Execution rights" are not among the exclusive rights - listed in 17 USC 106 (assuming we are talking about a - copyright license - in the US), so it makes no sense to talk about granting - them. A shareware - style requirement to pay for use is not a matter of granting (or not - granting) specific rights, but of imposing obligations in - return for the - rights which are granted. Clearly, #7 does not apply. That is the way I understand it also and the basis of the original question. Is there any reason why the obligation to pay a registration fee can not be included in an Open Source license. The question also doesn't refer to the possibility of enforcing the obligation by way of law either. According to http://www.opensource.org/docs/definition.html " 7. Distribution of License ... Rationale: This clause is intended to forbid closing up software by indirect means such as requiring a non-disclosure agreement." The reason and intent of clause 7 appears to be to stop the limitations being imposed on the use of source code or program by way of a separate license. Requiring a registration fee does not "close up" in that sense. Regards, David Davies
Re: Subscription/Service Fees
On Wednesday March 28 2001 03:51 am, David Davies wrote: I can see no reason why a clause can not be added to the license that states; " x.1 If you continue to use this software or any derived work after a thirty (30) day evaluation period you are required to register it. x.2 Registration can be performed at register.xyz.com " Definition #2: "...here must be a well-publicized means of obtaining the source code for no more than a reasonable reproduction cost..." Thus, I must be able to obtain at least the source code with out having to pay a registration fee. Any other fees for the source code are not allowed. Definition #7: "The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties." An additional execution of the license after thirty days has expired is a no-no! When I give a copy of the program to someone else, they immediately gain all the rights that I do without having to get an additional permission from you. Open Source is not "gratis" software. But neither is it "non-gratis" software. You may not stop me from distributing my copies as gratis. You cannot prevent it from becoming free-beer. Is there any reason why the obligation to pay a registration fee can not be included in an Open Source license. Definition #1 says that I don't have to pay you royalties if I give away or sell copies of your software. And definition #7 says that those I give it away or sell it to deal directly with me, and not you. So you can't charge registration fees to third parties. If you really want registration fees from all users, then why not just keep your software closed source? -- David Johnson ___ http://www.usermode.org
RE: Subscription/Service Fees
To allow the user to improve the software for themselves to suit there environments. -Original Message- From: David Johnson [mailto:[EMAIL PROTECTED]] Sent: Wednesday, 28 March 2001 5:36 AM To: David Davies; 'Eric Jacobs'; License-Discuss (E-mail) Subject: Re: Subscription/Service Fees On Wednesday March 28 2001 03:51 am, David Davies wrote: I can see no reason why a clause can not be added to the license that states; " x.1 If you continue to use this software or any derived work after a thirty (30) day evaluation period you are required to register it. x.2 Registration can be performed at register.xyz.com " Definition #2: "...here must be a well-publicized means of obtaining the source code for no more than a reasonable reproduction cost..." Thus, I must be able to obtain at least the source code with out having to pay a registration fee. Any other fees for the source code are not allowed. Definition #7: "The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties." An additional execution of the license after thirty days has expired is a no-no! When I give a copy of the program to someone else, they immediately gain all the rights that I do without having to get an additional permission from you. Open Source is not "gratis" software. But neither is it "non-gratis" software. You may not stop me from distributing my copies as gratis. You cannot prevent it from becoming free-beer. Is there any reason why the obligation to pay a registration fee can not be included in an Open Source license. Definition #1 says that I don't have to pay you royalties if I give away or sell copies of your software. And definition #7 says that those I give it away or sell it to deal directly with me, and not you. So you can't charge registration fees to third parties. If you really want registration fees from all users, then why not just keep your software closed source? -- David Johnson ___ http://www.usermode.org
Re: Subscription/Service Fees
On Wednesday March 28 2001 04:48 am, Robert Kolzan wrote: To allow the user to improve the software for themselves to suit there environments. But you can do that without the software being Open Source. You do not need the approval of the OSI in order to make your source code available. There are dozens of software packages that are in no way Open or Free yet allow the user to modify the software for themselves. -- David Johnson ___ http://www.usermode.org
RE: Subscription/Service Fees - OSD Intent
On Wednesday, 28 March 2001 6:20 AM, David Johnson wrote - To allow the user to improve the software for themselves - to suit there - environments. - - But you can do that without the software being Open Source. - You do not need - the approval of the OSI in order to make your source code - available. There - are dozens of software packages that are in no way Open or - Free yet allow the - user to modify the software for themselves. So back to one of the questions in my original e-mail "Is this a practice that is intended to be prohibited?" [under the OSD] A number of people seem to feel it is against the spirit of the OSD. This may very well be the case. If so why isn't there a more specific clause in the OSD to clarify the point ? At least one of the annotations (Rationale sections) could be expanded to clarify that that is the intention of whichever clause has the effect of limiting this action. It has been suggested that clause 1. Free Redistribution or clause 7. Distribution of License would limit such a license being accepted but neither is specific or entirely clear in that regard. Regards, David Davies
Re: Subscription/Service Fees - OSD Intent
On Wednesday March 28 2001 07:28 am, David Davies wrote: So back to one of the questions in my original e-mail "Is this a practice that is intended to be prohibited?" [under the OSD] I would say that registration fees are intended to be prohibited. If so why isn't there a more specific clause in the OSD to clarify the point ? That's the trouble with a formal legal definition, and possibly why the FSF has never made one for Free Software. I have often wondered where the US Supreme Court finds some of the stuff it finds in the Constitution, and why they don't seem to recogize the clauses that seem obvious to me :-) The OSD is an attempt to formally define Free Software (*). It was never meant, I believe, to be a list of restrictions on licenses. If the definition is too broad, then it allows in licenses that are not Free Software licenses, and if it is too narrow then it could exclude some Free Software licenses. Then there is always the possibility that registration fees never occured to the authors of the OSD. You need to remember that Free Software and the OSD came out of the Unix milieu, where shareware is all but unheard of, despite its prominence in the DOS and Windows community. At least one of the annotations (Rationale sections) could be expanded to clarify that that is the intention of whichever clause has the effect of limiting this action. I would agree with this. Similar questions have arisen before, indicating there is some confusion out there. It's much add to a rationale than to add to a clause. (*) Oh, will I catch Hell for that statement... -- David Johnson ___ http://www.usermode.org