Can confirm Richard's recollection of MPL's history around this clause. On Sat, Aug 26, 2017, 7:18 PM Richard Fontana <rfont...@redhat.com> wrote:
> On Fri, Aug 25, 2017 at 05:10:45PM -0400, Wheeler, David A wrote: > > However, 2(e) makes me wonder: > > > e) Notwithstanding the terms of any Secondary License, no Contributor > makes additional grants to any Recipient (other than those set forth in > this Agreement) as a result of such Recipient's receipt of the Program > under the terms of a Secondary License (if permitted under the terms of > Section 3). > > > > It's not clear to me that this EPL-2.0 clause adds a conflict with > GPL-2.0 or GPL-3.0. For argument's sake I'll assume it doesn't, in part > because I expect that the EPL-2.0 drafters would have noticed this. > However, there's a weirdness: This text seems to add a constraint that a > *future* version of the GPL might conceivably conflict with. My crystal > ball is murky today :-). > > I can shed some light on some of the deeper origins of this text. > > In 2007, GPLv3 added the following language to the GPL license > updatability provision: > > Later license versions may give you additional or different > permissions. However, no additional obligations are imposed on any > author or copyright holder as a result of your choosing to follow a > later version. > > Although of course this does not by its terms relate to GPLv2, it was > intended primarily to make the point that if someone upgraded > GPLv2-or-later code to GPLv3, this would not somehow mean that an > upstream licensor would suddenly be held to have granted (or have an > obligation to grant) some permission present in GPLv3 but not in GPLv2 > (for example, some particular aspect of the GPLv3 express patent > license grant). > > (The language thus originated as an effort to mollify intellectual > property lawyers who had irrational fears around open source > licensing.) > > I am fairly sure that this language influenced MPL 2.0 section 2.4: > > No Contributor makes additional grants as a result of Your choice to > distribute the Covered Software under a subsequent version of this > License (see Section 10.2) or under the terms of a Secondary License > (if permitted under the terms of Section 3.3). > > Notice that the MPL GPL-family copyleft escape hatch feature is being > treated the same way as a future version of the MPL, for purposes of > that provision. > > EPL 2.0 adapted that language in 2(e): > > Notwithstanding the terms of any Secondary License, no Contributor > makes additional grants to any Recipient (other than those set forth > in this Agreement) as a result of such Recipient's receipt of the > Program under the terms of a Secondary License (if permitted under > the terms of Section 3). > > In light of the history I would like to take 2(e) just to be saying > that, for example: > > - A puts some code under EPL 2.0 with a Secondary License notice that > references GPLv3 (which might or might not be correctly describable > as 'EPL-2.0 OR GPL-3.0') > > - A also owns a patent with a claim that reads on some GPL-3.0 code > created by B > > - C takes A's code and combines it with B's code > > - Even if A's code was 'EPL-2.0 OR GPL-3.0', A did not grant a GPLv3 > section 11 patent license covering its patent which reads on B's > code (cf. GPLv3: licensed patent claims "do not include claims that > would be infringed only as a consequence of further modification of > the contributor version") > > I do think this is a somewhat tortured reading though and the > torturedness all seems to stem from that language in Exhibit A. > > > If my understanding is correct (and it might not be), then "(EPL-2.0 OR > GPL-2.0+)" is *NOT* correct, because you can't necessarily just use > arbitrary later versions of the GPL after 2.0 and ignore the EPL-2.0 text. > > I think the issue is simpler. > > Exhibit A should probably not have said: > > "This Source Code is also Distributed under one or more Secondary > Licenses ..." > > because I think the intention was something more like > > "This Source Code may [at some point in the future from the > perspective of me, the initial Contributor] also be Distributed > under one or more Secondary Licenses, under the circumstances > described in section 3.2..." > > (That supports the view that a simple OR expression is not truly the > right way to describe what's going on here.) > > cc'ing Mike Milinkovich so he is aware of this. > > Richard > > > _______________________________________________ > Spdx-legal mailing list > Spdx-legal@lists.spdx.org > https://lists.spdx.org/mailman/listinfo/spdx-legal >
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