[ Please discuss this license. I have stored the PDF copy of the
license at http://russnelson.com/SybaseOpenWatcomPublicLicense.v.1.0.pdf
-russ ]
On behalf of Sybase, Inc., I am submitting the attached Sybase Open Wat=
com
Public License v. 1.0 ("License") as part of OSI's software certificati=
on
program.
(See attached file: SybaseOpenWatcomPublicLicense.v.1.0.doc)
1. A copy of the license will be posted tomorrow (Wednesday, April 24)=
at
www.sybase.com/developer/opensource.
2. The License is based on the Apple Public License version 1.2 ("Appl=
e
License"), which has been approved by OSI. The changes from the Apple
License are as follows, with comments.
All references to Apple throughout the document have been changed to
Sybase.
Section 2.1. A new subsection (c) has been added, as follows: "(c)
Whenever reasonably feasible you should include the copy of this Licens=
e in
a click-wrap format, which requires affirmative acceptance by clicking =
on
an "I accept" button or similar mechanism. If a click-wrap format is n=
ot
included, you must include a statement that any use (including without
limitation reproduction, modification or distribution) of the Software,=
and
any other affirmative act that you define, constitutes acceptance of th=
is
License, and instructing the user not to use the Covered Code in any ma=
nner
if the user does not accept all of the terms and conditions of the
License." COMMENT: This section has been added because of last year's
Specht v. Netscape decision, which threw doubt on the validity of what =
has
become an accepted industry standard - of trying to make terms and
conditions applicable (particularly in the web site context) without ma=
king
it clear to the user that he/she is accepting a contract and being boun=
d by
its terms, and without requiring some affirmative "manifestation of
assent". That court found that Netscape's terms and conditions posted =
on
its website were not enforceable against a user that downloaded free
software from the site, because nothing required the user to view any
license terms, and the user had to do nothing to indicate assent to tho=
se
terms, prior to downloading the product.
A click-wrap format is the most clearly enforceable structure under cur=
rent
case law (although other "affirmative manifestations of assent" should
arguably be adequate, too). Making sure that the terms of an open sour=
ce
license are enforceable (which would include things like the various
damages waivers and limitations included in many of these licenses, the=
licenses-back to other contributors, etc.) protects everyone involved i=
n
the process. The addition of a requirement to use a click-wrap structu=
re
when feasible does not change the basic concept of an open source licen=
se -
many of these documents previously approved by OSI are currently struct=
ured
as contracts, going beyond a mere license grant. see, for example, Moz=
illa
Public License, Section 11 ("This License represents the complete agree=
ment
concerning [the] subject matter hereof"); IBM Public License, introduct=
ory
recital ("Any use, reproduction or distribution of the program constitu=
tes
recipient's acceptance of this agreement"), GNU General Public License,=
Section 5 (". . .by modifying or distributing the Program (or any work
based on the Program), you indicate your acceptance of this License to =
do
so, and all its terms and conditions . . .." The Apple Public License =
is
structured as a click-wrap on the Apple site (www.apple.com/publicsourc=
e).
The conceptual difference in the Sybase Open Watcom Public License is t=
hat
it requires (when reasonably feasible) use of that format by Contributo=
rs.
Section 2.2: A new subsection (e) has been added, as follows: "(e) Th=
e
object code form of the Covered Code may be distributed under Your own
license agreement, provided that such license agreement contains terms =
no
less protective of Sybase and each Contributor than the terms of this
License, and stating that any provisions which differ from this License=
are
offered by You alone and not by any other party." COMMENT: This sectio=
n is
adapted from a similar provision in the IBM Public License (Section 3,
Requirements). It is added to give licensees flexibility in licensing
terms, so long as the substance of the License is covered.
Section 3 ("Your Grants"), subpart (b): This subpart has been deleted.=
COMMENT: Determined not necessary to retain in the context of this
particular open source project.
Section 6 ("Additional Terms"): "the scope of the license granted herei=
n
has been replaced with "this License". COMMENT: The purpose of this
change was just to clarify that consistency had to be with the entire
agreement, not just the license grant.
Section 9 ("Limitation of Liability"): added "DIRECT" before "INCIDENTA=
L";
replaced "OR CONSEQUENTIAL DAMAGES" with "CONSEQUENTIAL OR OTHER DAMAGE=
S OF
ANY KIND, added "or any Contributor's" before "total liability"; replac=
ed
"fifty dollars ($50.00)" with "five hundred dollars ($500.00)". COMMENT=
:
The purpose of this change was to exclude the possibility of direct dam=
ages
as well as other damages. The increase in the maximum damages was to
increase likely enforceability of the provision.
Section 10 ("Trademarks"). The section in the Apple License was delet=
ed
and replaced with the following: "This License does not grant any righ=
ts
to use the trademarks or trade names "Sybase" or any other trademarks o=
r
trade names belonging to Sybase (collectively "Sybase Marks") or to any=
trademark or trade name belonging to any Contributor("Contributor Marks=
").
No Sybase Marks or Contributor Marks may be used to endorse or promote
products derived from the Original Code or Covered Code other than with=
the
prior written consent of Sybase or the Contributor, as applicable. COMM=
ENT:
The purpose of these changes was to remove the references to Apple-spec=
ific
names and policies, and to expand the protections of the section to
Contributors.
Section 12.1 ("Termination"): subpart (a), deleted "from Sybase"; COMME=
NT:
Termination may be by any Contributor; the removal of "from Sybase"
eliminates any implication that Sybase is the only participant with the=
right to terminate.
subpar=
t
(c), deleted "from Sybase" COMMENT: same reason as above
subpa=
rt
(c), after "patent infringement" added "(including as a cross claim or
counterclaim)", and at the end of the sentence added "or any Contributo=
r".
COMMENT: Adds a protective clarification and expands the scope of the
protection to include patent infringement claims brought against
Contributors.
Exhibit A: Apple copyright notice replaced with Sybase copyright notice=
.
Deleted "please obtain a copy of the license . . . ." and replaced it =
with
"BY USING THIS FILE YOU AGREE TO ALL TERMS AND CONDITIONS OF THE LICENS=
E."
. A copy of the License is provided with the source code for the Origi=
nal
Code and Modifications, and is also available at
http://www.sybase.com/developer/opensource";. COMMENT: Language "Pleas=
e
refer to ___________" was found by the Specht v. Netscape court to be
merely an invitation, and inadequate to put a user on notice that he/sh=
e
was bound by the terms of a contract. The language used here indicates=
that the affirmative act of use constitutes an acceptance of the licens=
e,
and is in bold and capitalized letters so that a court would be more li=
kely
to find it sufficiently conspicuous and therefore enforceable.
Replaced "AND SYBASE HEREBY DISCLAIMS" WITH "AND SYBASE AND ALL
CONTRIBUTORS HEREBY DISCLAIM" COMMENT: This expands the protection o=
f
this provision to include Contributors.
3. The License expressly provides that Covered Code or portions thereo=
f
may be combined with code not governed by the terms of this License. I=
t
should therefore be possible to segregate what license governs what cod=
e
portions in the event of multiple open source components in a combined
work. I am not aware of any software license that is entirely incompat=
ible
with the proposed license.
4. The license may be posted with the Sybase identification, but my
individual identification should not be posted.
Thank you for your consideration. I look forward to working with you
through this process.
Karen K. Williams
Senior Corporate Counsel
Sybase, Inc.
=
--
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