On 2004.02.12 21:03 Lawrence E. Rosen wrote:
I'll reply off-list.
I'm not ignorant about licenses or law. I'm an attorney. I'm general counsel of Open Source Initiative. I have written a book about open source licensing that will be published in a few months. And so I was not responding to NASA and its lawyers out of ignorance or as an "armchair lawyer."
They (and you) don't have to agree with me, but please respect my right to express myself. I'm not just spouting hot air.
I didn't see a many points in your original posting that served any purpose other than to "call on the carpet" the motives and approach of the authors.
If you are a lawyer, of all people, I would expect to see more constructive discussion about the license itself and how it can be made to comply with opensource.org's requirements. You should know, with all due respect to you and your profession, that providing specific reasons/alternatives, and avoiding taunting questions, is appropriate in helping NASA get their license to meet opensource.org requirements. If you're acting as council, please council on what they can do, not what they should have done. We would all learn from that approach.
And, yes, I'm offended at the tone of the response NASA got to their posting. They've done more for open source work than many other organizations would even dream. They invented Beowulf cluters, for heaven's sake.
Did I misread your response? Perhaps, but read it as such I did. I certainly respect what you do, but I also expect to see more respect directed to submitters of new licenses.
Now, with respect to the INDEMIFY clause (section 8), which says :
B. Waiver and Indemnity: RECIPIENT AGREES TO WAIVE ANY AND ALL CLAIMS AGAINST THE UNITED STATES GOVERNMENT, ITS CONTRACTORS AND SUBCONTRACTORS, AS WELL AS ANY PRIOR RECIPIENT AND SHALL INDEMNIFY AND HOLD HARMLESS THE UNITED STATES GOVERNMENT, ITS CONTRACTORS AND SUBCONTRACTORS, AS WELL AS ANY PRIOR RECIPIENT FOR ANY LIABILITIES, DEMANDS, DAMAGES, EXPENSES OR LOSSES THAT MAY ARISE FROM RECIPIENT'S USE OF THE SUBJECT SOFTWARE, INCLUDING ANY DAMAGES FROM PRODUCTS BASED ON, OR RESULTING FROM, THE USE THEREOF. RECIPIENT'S SOLE REMEDY FOR ANY SUCH MATTER SHALL BE THE IMMEDIATE, UNILATERAL TERMINATION OF THIS AGREEMENT.
There is nothing in opensource.org's criteria that says the licensing party shall refrain from waivers and indeminification. NASA's policies require specific wording in section 8, and if that wording is not significantly different than what has been accepted before, then I don't see a problem. It's an administrative detail, really.
I would like to see specific argument as to why, in NASA's case this wording does not need to apply to their sub-contractors. To me this is more appropriate to NASA's sub-contracting needs than what's in the other licenses. They know what's best for them, so let them demonstrate that.
And if opensource.org throws out a license on this issue, I think it would be wise for opensource.org to review its criteria. I would suggest separating (in opensource.org's criteria) certain areas when evaluating new licenses. For example, develop clear criteria for the following and specify which items make/break an open source designation:
distribution,
re-distribution,
deriverative works,
copyright,
waivers,
deriverative works,
related services,
quality controls.opensource.org says what a license should have, but the website doesn't say enough about what the authors *can* do with their license.
Specifically, I maintain that copyright and waivers are *not* determinants of an open source license, and I think it's improtant (if that's opensource.org criteria as well) to clearly state that. I would also suggest that as long as distribution is met, regardless of it's means, with or without re-distribution, the license be considered open source.
From the end user's perspective getting a software product from one place -vs- 1,000 places and having the software tracked are not determinants of an open source license, per se. They get freedom of availability, use, modification and a means to submit changes. And that's what defines a collaborative project. All else is optional.
Availability of the code and documentation, and the right to modify for personal use seem to me to be the baseline criteria to any open source license.
Richard --
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
