Wording in Open Source Definition
This will appear to be an extremely pedantic email, but it arises from a discussion with a corporate lawyer who I believe was genuinely confused by some of the wording in the Open Source Definition. The discussion focussed around the intent of clause 1, Free Redistribution, in particular "The license may not require a royalty or other fee for such sale." The lawyer believed that this should be read equivalently to "The license may not require a royalty, but it could do" whereas I believe that this should be read equivalently to "The license must not require a royalty..." He pointed to the use of the word "must" elsewhere in the document as evidence that the distinction between may and must was understood by the writers of the document. Also, looking at the Rationale for clause 1, he claimed that the word "free" should be considered to be the "freedom" sense of free, rather than "free-of-cost". We were unable to come to a satisfactory agreement, so I am asking this list: "Is it permissible in any circumstances for an Open Source license to require a royalty or other fee for sale of the software?" If the answer is no, I humbly suggest that the "may not" be changed to "must not" where it appears in clause 1, and that "free" be changed to "free-of-cost" in the rationale for clause 1, to avoid others falling into this same argument. I understand that the Open Source Definition is not meant to be a legally secure document, but rather a guide to what an Open Source license should be, but it would be helpful to me if this point could be cleared up. Yours, -- Richard Boulton
Re: Wording in Open Source Definition
Richard Boulton scripsit: We were unable to come to a satisfactory agreement, so I am asking this list: "Is it permissible in any circumstances for an Open Source license to require a royalty or other fee for sale of the software?" The answer is clearly "no". If the answer is no, I humbly suggest that the "may not" be changed to "must not" where it appears in clause 1, and that "free" be changed to "free-of-cost" in the rationale for clause 1, to avoid others falling into this same argument. I think you are absolutely right, and "may not" should be changed to "must not" everywhere. As evidence that "may not" means "must not" in this document, however, consider clause 6. The second sentence purports to be an example of the general principle given in the first sentence, yet the second sentence reads "may not" where the first reads "must not". -- John Cowan [EMAIL PROTECTED] One art/there is/no less/no more/All things/to do/with sparks/galore --Douglas Hofstadter
RE: Wording in Open Source Definition
From: Richard Boulton [SMTP:[EMAIL PROTECTED]] We were unable to come to a satisfactory agreement, so I am asking this list: "Is it permissible in any circumstances for an Open Source license to require a royalty or other fee for sale of the software?" [DJW:] The GPL is Open Source and the answer for the GPL is, as I understand it: No licence fee may be charged for the use of any intellectual property in the software (i.e. copyright or patent licences). An indefinitely large fee may be charged for: - the media; - placing the software on the media; - warranties; - support; - etc. This fee is is between the immediate supplier and immediate recipient; a supplier cannot insist that the recipient charge anyone down stream, although, I would hope, that they could impose a restriction that they would not provide any support or any warranty to an indirect recipient, or allow the the immediate recipient to act as their agent in selling support and warranty downstream. I think you will find that RedHat is based on the ability to charge in this way. (The one restriction on supply charges in the GPL is that, once executables are supplied, charges for source must be based on true copying, handling and media costs, not on what the market will bear. One point of the GPL is that the market will not bear large prices when anyone can redistribute or support the software.) IANAL
Re: Wording in Open Source Definition
On Friday 16 February 2001 01:49 am, Richard Boulton wrote: The discussion focussed around the intent of clause 1, Free Redistribution, in particular "The license may not require a royalty or other fee for such sale." As a child, when your lawyer's mother told him that he "may not have a cookie before dinner", take that to mean that he could? In the game of life, one mother always beats a pair of lawyers. -- David Johnson ___ http://www.usermode.org
Re: Wording in Open Source Definition
John Cowan writes: Richard Boulton scripsit: We were unable to come to a satisfactory agreement, so I am asking this list: "Is it permissible in any circumstances for an Open Source license to require a royalty or other fee for sale of the software?" The answer is clearly "no". If the answer is no, I humbly suggest that the "may not" be changed to "must not" where it appears in clause 1, and that "free" be changed to "free-of-cost" in the rationale for clause 1, to avoid others falling into this same argument. I think you are absolutely right, and "may not" should be changed to "must not" everywhere. As evidence that "may not" means "must not" in this document, however, consider clause 6. The second sentence purports to be an example of the general principle given in the first sentence, yet the second sentence reads "may not" where the first reads "must not". Maybe the OSD should be written to use terms like MAY, MUST, and SHOULD as defined by RFC 2119: http://www.ietf.org/rfc/rfc2119.txt (And it could then say so.) -- 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
