On Fri, 17 Oct 2003, Chuck Swiger wrote:"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. [ ... ]"
It's curious how far apart the wording of #10 and its rationale are.
Agreed. Some people have suggested that the intent of OSD #10 is not to forbid licenses from obtaining consent, but to make sure that the mechanism for obtaining consent does not impede activities like SourceForge and automated package-building systems (portbld & bento under FreeBSD, fink for Darwin, RPMs for some flavors of Linux, etc).
At any rate, it's been said by lawyers on this list that licenses like the
GPL would probably be evaluated as contracts by a judge, not just as
copyright licenses.
Yes. Of course, the GPL itself states:
"Activities other than copying, distribution and modification are not covered by this License; they are outside its scope. The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does."
...and that consent to the GPL is implied by the act of redistributing a GPL'ed work per section 5. In contrast to the type of usage restriction that Chris was proposing, the GPL makes no attempt to prevent a user of Emacs from using that editor to produce proprietary software, and I think that is as it should be, at least in general.
Many open source licenses contain provisions that affect use - the patent termination clause in the APSL, for example (paraphrased, your right to *use* APSL software is gone if you file a patent claim against Apple).
True. For that claim to be meaningfully enforcable, however, doesn't it require the user to have signed or otherwise agreed to the APSL? I remember that when the Darwin project was first starting up, the Darwin sources were made publicly available by an Apple employee on the MIT Athena/AFS cell _without_ requiring people to agree with the APSL in order to access those sources.
Ernie, please correct me if I misspeak, but I believe that person made the case with the powers-that-be at Apple's management that "open sourcing" Darwin should mean just that, and that existing copyright provisions governing redistribution would be adequate to protect Apple's legitimate concerns and interests in much the same fashion that GPL #5 does.
There have been long threads on this list in
days past regarding whether open source authors *should* be seeking assent
before allowing their software to be downloaded, or at least before use -
some claim it would make our licenses that much less vulnerable to being
ignored by the user or mooted by a court, if I'm capturing the discussion
accurately.
I think that there is little question that if a license provision is of a nature to require assent from the user, that obtaining their consent via a contract would represent a much stronger position.
However, like Wilfredo Sanchez, I believe that "open source" should mean just that-- the source code is publicly open and freely available to everyone to at least examine and submit or publish changes as they wish without requiring a contract, click-wrap EULA, or other such agreement. Restrictions on how software may be used are onerous, but if the author feels such restrictions are necessary, the author's reasons ought to be explicitly stated and the restrictions imposed ought to be justified, specific, and narrow in scope.
-- -Chuck
-- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
