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 - 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 - 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 - 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 - 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 - 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 - 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 - 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
