On Thu, 16 Oct 2003, Chris F Clark wrote:[ ... ] However, in distinction, one can create non-open source software using ones own IP. Thus, that can be a field of endeavor. Moreover, one can use a different editor to create such software. Thus, a usage restriction on a particular editor, would prohibit its use in that field of endeavor (which would otherwise be legal and thus a valid field of endeavor). And to my mind that contrvenes OSD #6.
OK, this is an interesting theory, but it still rests on the assumption that "creating non-free software" is a "field of endeavor", which I'd dispute.
Creating software is a field of endeavor, surely, both in the personal sense-- people identify _themselves_ as being "programmers"-- and in the formal/legal sense that one's occupation listed on business cards, tax forms, and so forth describe people as being "software engineers", "developers", etc.
That being said, I agree with you, Brian, that programmers who create open-source software and programmers who create non-free software are members of one and the same field of endeavor. Many programmers who write proprietary software contribute patches or bugfixes to open-source projects, and many people who write free software by choice end up working on closed, proprietary projects at least once in a while.
[ ...] That is, one must release an open source copy of the derived work when one creates such a derived work, not only when one distributes such a derived work. (There are many details to work out, which is why I have not submitted it for review.)
I am hoping that such a restriction will not be considered contravening the OSD, and that the license will become approved.
Interesting twist. For practical reasons I'd argue that a license clause
that is still triggered on distribution, but applies to all work, is more
likely to make sense than a license that is triggered upon the act of
creation - after all, when is that creative act, is it as soon as you
create a tarball, or is it once you've edited the file? Are you going to
require public CVS trees for any derivative work?
People who are copyright lawyers focus on the circumstances of redistribution as being of paramount importance, and at least to some extent, the OSD reflects that viewpoint. People who are not copyright lawyers tend to focus more on activities like using or modifying the software.
Restrictions on how people _use_ software, such as "you may only use my editor if you are writing open-source software", are more appropriately handled by end-user license agreements and contract law than by copyright law, at least if my understanding is correct. Therefore, if the license that Chris has proposed does require active consent from the end-user in order to form a contract, it would fail OSD #10:
"10. License Must Be Technology-Neutral
No provision of the license may be predicated on any individual technology or style of interface. Rationale: This provision is aimed specifically at licenses which require an explicit gesture of assent in order to establish a contract between licensor and licensee. [ ... ]"
-- -Chuck
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