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.
Both the 2.0 and MPL licenses attempt to deal with the issue of accepting
contributions rather than simply licensing the right to copy. As such,
we don't want a person to "read a few paragraphs" and come away thinking
they understand the whole license -- they don't.
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.
We like it too. However, it also makes it somewhat difficult to apply
to documentation, and people are constantly asking us what it means in
terms of commercial use, open versus closed source, etc. It also doesn't
allow for licensing by reference, which is why we define Work.
As such, it doesn't work well for us as developers.
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.
It can be argued (and has been, successfully) that such a contract can only be valid if the buyer's understanding of those terms already matches that of the seller, since you are effectively telling the buyer that they don't need to understand the terms in order to understand and agree to the contract. The terms we define aren't that numerous and are defined in context to what we need to say anyway. What you are really suggesting is that we don't define the obvious terms at all and simply use them with their assumed meaning, which is certainly an option.
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.
Then you can't redistribute the software. The license terms are not present for an average user to understand -- they ONLY exist to provide the authors of the code with legal defense against the one-in-a-million person who hires a lawyer to sue the developers who are doing all of this for free. Otherwise, we wouldn't need any license.
It isn't too much to ask the people who do nothing but make money off
of our software to spend five extra minutes reading the license. If they
don't want to do that, we lose nothing. This is not a popularity contest.
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?
The number of FAQs on that topic have proven it.
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.
It defines three terms that are used repeatedly in the license and provides
instruction to those who wish to use it. The latter is why it is both at
the beginning and in the appendix -- it is a FAQ. Defining all of the
terms separately would significantly increase the amount of text that
the reader must understand. I don't believe that is a good trade-off.
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?
Because there is no signature. The clause states that you either agree to all of these terms (hence no signature is needed) or you have no permission to make copies, etc.
3. Contributors and Contributions.
Again, defining Contributor and Contribution, while essential, could be done in a footnote. Bring on the meat!
If it is essential, it cannot be done in a footnote. Legal text is either defined prior to use or is allowed to be construed in the reader's favor, which is definitely not the case here.
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.
The only obvious term there is You, and that is defined above for free. I don't know where you got the idea that there is no legal reason for definitions occurring before use -- litigation is the reason. People file suits all the time on the basis that they did not understand the contract, and one defense is that the term is not defined or defined in a place where the reader won't have that definition in mind when they are reading the terms. That is why MPL defines them all up front and why GPL defines them in context of 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 forinformational 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.
It says it does not *modify* the terms and conditions of this License. A statement of license does not modify anything but the reader's understanding of their permissions. In any case, the only statement of license in the example NOTICE file does not refer to the NOTICE file itself but rather to some portion of the product.
(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?
Yes. It is not an unusual requirement.
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?
No, the NOTICE file is not allowed to contain additional terms. It exists
solely to provide a place for attributions. The additional terms are
typically warranty or support-related, which are required by law in
some countries whenever money is exchanged.
Thanks for your comments,
....Roy
