A few comments on the proposed license.
First, some background. I've read many open-source licenses carefully, and am reasonably facile with contracts, especially software license agreements. The current crop of open-source licenses range in readability from great to awful. No matter how reasonable the license terms are, if the license is hard to understand without spending 15 minutes reading it carefully, its not going to be effective.
My first reaction to the new ASL license is "The Second System Effect." I think you did a good job at addressing goals 2-8, to the serious detriment of goals 1 and 9.
I think there are two reasons the ASL license is one of the most widely-used open-source licenses -- it is clear, and it is reasonable. In reading the new draft, the same reasonability comes through, but I think some clarity is lost.
Now, perhaps I'm being naive, but I think that an open-source license should be clearly understandable by non-lawyers. ASL 1.0 was. (MPL was not.) I think the proposed ASL 2.0 has taken a big step away from clarity in the interests of comprehensiveness. Perhaps both goals can be realized.
To wit:
* Redistribution and use in source and binary forms, with or without * modification, are permitted provided that the following conditions * are met:
I just love this. You get right to the punchline straight away. This is what makes the ASL a great license.
Eric Friedman suggested this:
I'd like to suggest that the first section of the license contain a complete set of terms and definitions for the rest of the document.
I think this is exactly the opposite of what we want. While this is a contract, there's a strong desire to make it NOT read like one. (Its not a program, either.)
There's no reason you have to define "You" before you use the term "You." Most people will know what it means. Those who don't can read the definition in the footnote. This is not an arcane contract. Things like "You", "Contributor", "Source Code", and the like are likely to be understood well enough by the reader. Don't make them wade through those definitions before they can get to the meat.
Here's an approach we take in our contracts. The contract body is a one-page document that describes business terms -- what, when, who, how much (including things like scope of license grant.) The legal terms are all described in a multi-page terms-and-conditions attachment. The body may refer to things defined in the T&C (e.g., "source code"), but if you are comfortable that you know what source code is, you don't have to wade through the definition.
Perhaps this approach would work well for ASL -- have the first half be plain-language descriptions of the rights and obligations, and refer to definitions that occur later in the document. People can then start at the beginning and stop when they feel they "get it", which might not require reading the whole thing.
Everyone knows ASL is an open-source license. When confronted with an open-source license, a businessperson wants to know "how open is it really?" We should strive to answer those questions in the first few paragraphs. Again, take the MPL. Were I a typical businessperson, confronted with a package of technology licensed under MPL, I would keep looking, not because MPL is an unreasonable license, but because I can't understand it.
Now, to the draft. My goal here is to suggest things that can be (a) cut, or (b) moved down in the license.
Copyright (C) 2003 The Apache Software Foundation.
Everyone is permitted to copy and distribute verbatim copies
of this license document, but changing it is not allowed.
Does a license agreement need a license agreement?
TERMS AND CONDITIONS FOR USE, REPRODUCTION, DISTRIBUTION, AND MODIFICATION
1. Licensing the Work. These terms and conditions for use, reproduction, distribution, and modification (the "License") apply to any original work of authorship (the "Work") containing a notice placed by the copyright owner (the "Licensor") indicating that the Work is licensed under the Apache License, Version 2.0.
As far as I can tell, this says nothing. Its kind of like "the party of the first part shall heretofore be known as the party of the first part." Any work that has a notice that incorporates by reference the ASL meets the need to define the work and the license. If you have to say this, make this the last paragraph, not the first.
2. You. "You" or "Your" means an individual or legal entity
exercising permissions granted by this License.
Such definitions are probably better made in a footnote. I'm three paragraphs in and I still don't know what any of my rights are!
By exercising any
of the permissions granted to You in Sections 4 through 8 herein,
You indicate Your acceptance of this License and all of its terms
and conditions.
By signing this contract, the parties hereby agree to abide by the contract. Redundant. Again, why does this precede the statement of rights?
3. Contributors and Contributions.
Again, defining Contributor and Contribution, while essential, could be done in a footnote. Bring on the meat!
4. Contributor Grant of License. Subject to the terms and conditions of this License, each Contributor hereby grants to You:
(a) a perpetual, non-exclusive, worldwide, fully paid-up, royalty free, irrevocable copyright license under its licensable copyrights in the Work to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute the Work and such derivative works; and,
(b) a perpetual, non-exclusive, worldwide, fully paid-up, royalty free, irrevocable (subject to Section 5) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work and derivative works thereof, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution alone or by combination of their Contribution with the Work to which such Contribution was submitted by the Contributor.
Ah, meat. This should be the FIRST thing in the license. There's no legal reason why a term, especially an obvious one like You, has to be defined before its first use.
No assurances are provided by any Contributor that the Work does
not infringe the patent or other intellectual property rights of
any other entity. Each Contributor disclaims any liability to You
for claims brought by any other entity based on infringement of
intellectual property rights or otherwise. You assume sole
responsibility to secure any other intellectual property rights
needed, if any.
Entirely reasonable. Perhaps moving 4 and 5 to section labeled "Patents" would help those who don't care about patents not have to read it.
6. Redistribution without Modification. You may reproduce and
distribute verbatim copies of the Work as You received it, in any
medium, provided that You conspicuously publish on each copy an
appropriate copyright notice and disclaimer of warranty, keep
intact all of the notices that refer to this License and to the
absence of any warranty, and give any other recipients of the Work
a copy of this License along with the Work.
Mmm, more meat. Move this higher.
The contents of the NOTICE file are for
informational purposes only and do not modify the terms and
conditions of this License.
I'm not sure that this is legally viable, unless I misread the intent. The NOTICE file contains the statement of license, incorporating by reference these terms and conditions. The terms and conditions which are incorporated by reference can't then place a limitation on the validity of the NOTICE file as a license instrument which incorporates the terms.
(c) You must cause any modified files to carry prominent notices
stating that You changed the files.
This is a pretty strong requirement. Every change must be commented, or I am in breach? Is this really what you want to say?
8. Redistribution with Additional Terms. You may choose to offer, and
to charge a fee for, warranty, support, indemnity, or liability
obligations and/or other rights consistent with the scope of the
license granted herein ("Additional Terms"). However, You may do
so only on Your own behalf and as Your sole responsibility, not
on behalf of any other Contributor, and only if You agree to
indemnify, defend, and hold every Contributor harmless for any
liability incurred by, or claims asserted against, such
Contributor by reason of any such Additional Terms.
Appears to be inconsistent with the thing about the NOTICES file above. If I can redistribute with additional terms, wouldn't the NOTICES file be the place to say this?
OK, now to the goals.
Clear
Lots of questions get asked about 'can I include Tomcat/Jserv/xxx in my commercial product,' even though *careful* reading of the current license answers that. It may be better to be verbose if that cuts down on frequently asked questions. Likewise, many lawyers have commented that the original license did not define the terminology precisely. Solved in 2.0 by defining most important terms and separating the permissions into identifiable sections.
I think significant clarity has been lost, not because the license is not more clear than the previous iteration, but the level of effort required to extract the information of what the license really says has gone up by an order of magnitude. I'm confident that I understood the original ASL after three minutes without legal consultation; this one will take many times that time, and still I would want to consult a lawyer to make sure I understand it.
Reusable Trademarks Compatible with other licenses Patent protection.
Good.
Short!
Complete license should be as short as possible, and with as little opaque legalese as possible. Less than a page is excellent; shorter still is even better. This is the trade-off -- we lost shortness in exchange for more clarity and extra patent and contribution coverage. However, the 2.0 license is still considerably shorter than comparative licenses, and the ability to license by reference makes the actual citations within source files much shorter than before.
I think it can be made quite a bit shorter and clearer without compromising your goals.
-- Brian Goetz Quiotix Corporation [EMAIL PROTECTED] Tel: 650-843-1300 Fax: 650-324-8032
http://www.quiotix.com
