Re: bittorrent open source license version 1.1
[ Fwd to the list, I apologize for the private mail. ] Hi MJR, thank for your reply! On Fri, Jan 16, 2009 at 12:33:52PM +, MJ Ray wrote: qtorrent has a serious bug if it includes bencode.py under BTOSL 1.0 AFAICS all files under qtorrent-2.9.1/pyqtorrent3/BitTorrent/, with the except of zurllib.py, are licensed under BTOSL 1.0. Both should switch to the clean room implementation of bencode from http://bittorrent.cvs.sourceforge.net/viewvc/bittorrent/BitTorrent/ I'm not sure about metafile.py - I only find it in deluge. Are you sure it's from bittorrent.com? The addition commit log email was http://www.mail-archive.com/deluge-com...@googlegroups.com/msg00077.html but I don't see it in the next bittorrent.com sources http://download.bittorrent.com/dl/archive/BitTorrent-5.2.2.tar.gz Well, after writing my mail I contacted deluge's author asking for clarifications. Both files come from BitTorrent sources, but he couldn't remember which version was used. So I suggested him to update bencode.py to the latest revision included in BitTorrent-5.2.2 which is released under the PSF License 2.3: http://www.mail-archive.com/deluge-com...@googlegroups.com/msg00713.html File metafile.py is a modified version of makemetafile.py from BitTorrent, but unfortunately it is released under BTOSL 1.1 also in the latest release. Thanks, -- Cristian Greco GPG key ID: 0x0C095825 signature.asc Description: Digital signature
Re: Re: BitTorrent Open Source License (Proposed Changes)
On 8/5/05, Nathanael Nerode [EMAIL PROTECTED] wrote: Michael K. Edwards wrote: a self-selected crew of ideologues with brazen contempt for real-world law and no fiduciary relationship to anyone is not too swift -- whether or not they have law degrees (or university chairs in law and legal history). Not all debian-legal participants deserve to be tarred with that brush, but the ones who do are numerous enough and loud enough to give me pause. You're referring to yourself here, I assume? I read, and am enlightened! To repeatedly disclaim authority, either as a representative of the community or as a subject matter expert, is to self-select as an authority! To acknowledge error, in response to concrete evidence brought to bear by others or by one's own further research, is to be an ideologue! To respect the integrity of judges, cite extensively from case law, and take seriously precedents raised by others is to have brazen contempt for real-world law! War is peace! Freedom is slavery! Ignorance is strength! (I do, however, have no fiduciary relationship to anyone involved -- and I'm certainly planning to keep it that way at this rate.)
Re: Re: BitTorrent Open Source License (Proposed Changes)
On 8/6/05, Michael K. Edwards [EMAIL PROTECTED] wrote: I read, and am enlightened! To repeatedly disclaim authority, either as a representative of the community or as a subject matter expert, is to self-select as an authority! To acknowledge error, in response to concrete evidence brought to bear by others or by one's own further research, is to be an ideologue! To respect the integrity of judges, cite extensively from case law, and take seriously precedents raised by others is to have brazen contempt for real-world law! War is peace! Freedom is slavery! Ignorance is strength! Please don't pretend that that's what Nathanael was talking about. You have rather freely incorporated your own opinions -- sometimes very disparaging opinions -- in with the citations, facts, and disclaimers you mention above. Granted, you now exhibit reluctance when you make crack smoking comments, and you don't use that particular phrase as often as you used to. But you're still rather free with your implications (and the above paragraph of yours is another example of this).
Re: BitTorrent Open Source License (Proposed Changes)
Sean Kellogg [EMAIL PROTECTED] wrote: [...] I think that sounds lovely in theory... however, I really have no sense of how the ftpmasters synthesis the debates that go on here. I don't think many do. I watch the effects and try to work out what's happening. Sometimes it's good, sometimes bad, but more data would be great. Mostly, contributors seem to work on other interfaces which give more feedback. What I do know is that this list spends a lot of time declaring licenses to be non-free based= on dubious tests that are poorly grounded in the DFSG or legal thinking that would never fly in a court room. The recent work which concentrates more on the DFSG and less on the tests. Until the tests are explicitly reconnected, I expect that to continue. this list doesn't declare anything about licences. There is currently no mechanism for it to do so. There have been attempts to construct a mechanism, but none worked IMO. Some contributors comment on licences, but that's not the same thing. It's also not a court room. Sorry if anyone was confused. The discussion on what constitutes discrimination under DFSG #1 continues to be so outside of mainstream legal thinking to be debilitating. I don't follow the list that closely, especially off-topic and meta discussion, but should that really say DFSG 1? It doesn't mention discrimination itself, does it? I was actually trying to describe the thinking to a legal prof who is pretty well respected among the software industry and he was amazed to hear that was considered a viable way of thinking of discrimination. That description is not included here and I have no faith in its accuracy, based on this effect. [...] The problem is that when there are potential areas of abuse in other=20 licenses people rush to declare it is non-free. When? Personally, I try to write watch out for [potential], it could be a problem in [situation] and could be improved. I believe that the GPL and the BSD represent the mainstream of free licenses. If the position is that the GPL is the extreme to one side, then I fear for Debian and its ability to evolve as FOSS licensing thinking changes. The GPL is one side of mainstream and BSD is another side of mainstream. I think most people would agree. Not extremes, perhaps, but apart. Debian has mechanisms for evolution, but debian-legal by itself can't enact them (and nor should it try IMO). As itself, -legal works within the parameters known at the time. I'm willing to wager money that this list will declare GPL 3 to be non-free... and I say that without even= knowing what will be in the license. The kneejerk reaction to apply super= strict rules and worse case scenario prognosticating doesn't seem helpful. Until the FDL, I would have taken that wager. Now I'm not so sure. [...] Seriously man, where do you get off? Oh, the usual place, I expect. People in the Southern Hemisphere aren't _that_ different from us. :-) There is a cultural problem here on d-l... To me, it seems that the problem is mostly lack of respect for others and their different cultures, but it's more common in off-topic and meta discussions than the directly on-topic ones. those with the most extreme views of the DFSG seem to have been attracted to this list as a place to force their views. I'd much rather see honest legal debate based on common, mainstream values held by the FOSS community. Cute, but: 1. Honest legal debate brings questions of what legal system to use and which lawyers in it are honest? 2. Some of the extreme views are common so who judges mainstream? (Some say debian isn't mainstream because of its SC anyway.) 3. How do we bring it about? 4. Why would DDs accept it? That includes REASONABLE=20 readings of DFSG #1. Clearly OSI, who has very similar terms, has adopted a reasonable interpretation and approved several license. Why is Debian special to go the other way? AIUI, the Open Source Initiative took debian's practical guidelines and cast them into a legalish definition. What works well as a tool is not a very good definition. It should be no surprise that the initiative failed and open source becomes more and more ambiguous. Ask them why they aren't returning to debian. -- MJR/slef My Opinion Only: see http://people.debian.org/~mjr/ Please follow http://www.uk.debian.org/MailingLists/#codeofconduct -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Re: BitTorrent Open Source License (Proposed Changes)
Michael K. Edwards wrote: a self-selected crew of ideologues with brazen contempt for real-world law and no fiduciary relationship to anyone is not too swift -- whether or not they have law degrees (or university chairs in law and legal history). Not all debian-legal participants deserve to be tarred with that brush, but the ones who do are numerous enough and loud enough to give me pause. You're referring to yourself here, I assume? -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: BitTorrent Open Source License (Proposed Changes)
Ken Arromdee writes: On Sun, 31 Jul 2005, Michael Poole wrote: It is not a fee: implicit warranty and similar liabilities are created by law. Where a warranty disclaimer applies, it is because the relevant law allows that warranty to be disclaimed. I'm not sure that's a distinction. After all, a fee applies when the relevant law allows a fee to be charged. I apparently did not express what I wanted to. For implicit warranties, the law creates the cost and (at least sometimes) allows that created cost to be disclaimed. For choice of venue, the license is what imposes the cost, and that is why it is forbidden by the DFSG. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: BitTorrent Open Source License (Proposed Changes)
On Sun, Jul 31, 2005 at 04:04:53PM -0400, Joe Smith wrote: For that reason, A non-lawyer is equally suited to point out potential wording problems in a contract as a lawyer. I don't believe anybody has ever disputed this. It would be kinda silly, since that's what we do around here all the time. -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: BitTorrent Open Source License (Proposed Changes)
On Mon, 1 Aug 2005, Michael Poole wrote: It is not a fee: implicit warranty and similar liabilities are created by law. Where a warranty disclaimer applies, it is because the relevant law allows that warranty to be disclaimed. I'm not sure that's a distinction. After all, a fee applies when the relevant law allows a fee to be charged. I apparently did not express what I wanted to. For implicit warranties, the law creates the cost and (at least sometimes) allows that created cost to be disclaimed. For choice of venue, the license is what imposes the cost, and that is why it is forbidden by the DFSG. I wouldn't compare an implicit warranty to a choice of venue. I would compare a disclaimer of an implicit warranty to a choice of venue. The implicit warranty itself is imposed by law, but the disclaimer is imposed by the license. Think of it this way: Normally you could sue because of breach of an implicit warranty. However, because there is a disclaimer, you're not allowed to do this. Normally you could have a lawsuit in a more convenient venue to you. However, because there's a choice of venue clause, you're not allowed to do this. In both cases, if the clause was not in the license at all, you get to do something that you can't do with the clause present. They both seem to be costs, in a sense. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: BitTorrent Open Source License (Proposed Changes)
Ken Arromdee writes: On Mon, 1 Aug 2005, Michael Poole wrote: It is not a fee: implicit warranty and similar liabilities are created by law. Where a warranty disclaimer applies, it is because the relevant law allows that warranty to be disclaimed. I'm not sure that's a distinction. After all, a fee applies when the relevant law allows a fee to be charged. I apparently did not express what I wanted to. For implicit warranties, the law creates the cost and (at least sometimes) allows that created cost to be disclaimed. For choice of venue, the license is what imposes the cost, and that is why it is forbidden by the DFSG. I wouldn't compare an implicit warranty to a choice of venue. I would compare a disclaimer of an implicit warranty to a choice of venue. The implicit warranty itself is imposed by law, but the disclaimer is imposed by the license. Think of it this way: Normally you could sue because of breach of an implicit warranty. However, because there is a disclaimer, you're not allowed to do this. Normally you could have a lawsuit in a more convenient venue to you. However, because there's a choice of venue clause, you're not allowed to do this. In both cases, if the clause was not in the license at all, you get to do something that you can't do with the clause present. They both seem to be costs, in a sense. The law that creates the warranty also allows its disclaimer; it allows a developer to refuse the cost that the law incurs. In that way, the disclaimer reverts the cost balance to its state in the absense of the law. This is distinct from a choice-of-venue clause, which creates a new cost that did not exist before the license existed. The licensee's cost under choice-of-venue also did not exist before the law describing personal jurisdiction. I understand your position, but think (for both moral and pragmatic reasons) that it is not correct to take an implied warranty as the origin state. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: BitTorrent Open Source License (Proposed Changes)
On 8/1/05, Michael Poole [EMAIL PROTECTED] wrote: The law that creates the warranty also allows its disclaimer; it allows a developer to refuse the cost that the law incurs. In that way, the disclaimer reverts the cost balance to its state in the absense of the law. This is distinct from a choice-of-venue clause, which creates a new cost that did not exist before the license existed. The licensee's cost under choice-of-venue also did not exist before the law describing personal jurisdiction. That is neither (AIUI, IANAL, TINLA) how implied warranty works nor how choice of venue works. Implied warranties such as merchantability and fitness for a particular purpose, in common-law systems at least, are originally judicially created; in most states of the US they are now codified, along with standards of disclaimer, in the portion of commercial code modeled on UCC 2314-2317. But in some states (conspicuously California) there are additional statutes governing implied warranty elsewhere in the code, such as the Song-Beverly Consumer Warranty Act ( http://caselaw.lp.findlaw.com/cacodes/civ/1792-1795.7.html ). It is not true that some language in a form contract reliably allows a developer to refuse the cost that the law incurs. The relevant statutes simply provide a minimum quality standard for attempts to disclaim warranty in a given contract of sale, and courts are perfectly capable of ruling that such language is too inconspicuous, or accompanied by language or conduct indicating that it is not binding on end users (IMHO clearly the case for the GPL), and hence allowing a breach-of-warranty suit to go forward. The Song-Beverly example is very interesting because it seems to be a favorite for class-action suits and comes with a duty of indemnity between manufacturer and seller. Not to be alarmist or anything, but this could easily bankrupt Debian. Suppose Rip-And-Burn, Inc. sells Debian-based in-car playback equipment for ripped DVDs. They obtain no patent licenses and don't do a good enough job on notice of warranty disclaimer. DTS sues them for patent infringement, obtains their customer list, and sends cease-and-desist letters to all of their customers. A customer in California can probably turn around and sue Rip-And-Burn for breach of implied warranty of merchantability under Song-Beverly, get a class certified, and claim that the box is now essentially valueless to all its owners because there is no less reason to fear Dolby (AC-3) and Thomson (MP3) than DTS. Either the customer or Rip-And-Burn can pull Debian into the suit, demanding that it indemnify as the manufacturer of the audio decoder libraries (especially libdts, which upstream has pulled, leaving Debian the most conspicuous supplier). Anybody care to run the numbers on Debian's probable liability to the class, including attorneys' fees and costs of litigation? Did I mention that I know of several companies in California who are building exactly such products (though I don't know whether any of them are using Debian or treating patents so cavalierly)? Anyway, as to personal jurisdiction -- this is a legal principle lost in the mists of time, adapted in modern times to fit the realities of commerce without personal contact. A choice of venue clause is not dispositive even in a negotiated contract -- see 28 U.S.C. 1404(a) and Stewart Organization v. Ricoh (1988) -- and a choice of law clause, together with a long arm statute, can contribute to the exercise of personal jurisdiction in the licensor's home state over a licensor who has never been there -- see Burger King v. Rudzewicz (1985). But there isn't that much for a licensee to fear here; mere language in a form contract may or may not oblige the offeree to _bring_ suit in the specified forum (compare Carnival Cruise v. Shute (1991) against Lauro Lines v. Chasser (1989)), but is unlikely to satisfy a minimum contacts standard and put her at risk of _being_ sued in a forum which would not otherwise have personal jurisdiction over her. If anything, it makes it harder for the offeror to sue _anywhere_ on a claim that is not pure tort, since the offeree may not have enough contact with the named forum to be sued there but may be protected elsewhere by the offeror's covenant not to sue outside the named forum. I haven't researched all the ins and outs of this, and in particular the combination of a forum selection clause in a copyright license with a patent infringement claim is potentially explosive -- but if you're distributing code licensed from the holder of a presumptively valid patent, and relying on jurisdictional niceties to protect you from accusations of infringing that patent, you're an idiot. You might think that contract language would only affect actions for breach of contract, but statutory and contractual causes of action are so tangled together nowadays that a forum selection clause can sometimes be used to block even securities fraud and antitrust
Re: BitTorrent Open Source License (Proposed Changes)
Michael K. Edwards writes: Anyway, as to personal jurisdiction -- this is a legal principle lost in the mists of time, adapted in modern times to fit the realities of commerce without personal contact. A choice of venue clause is not In sum, trying to shoehorn any of the warranty / liability / breach of contract calculus into a box marked fee, in order to test it against DFSG #1, is almost as silly as calling it discrimination for the purposes of #5 or #6. This is all about risk management, and where the risks are not routine, I agree with Sean that relying on risk assessment by a self-selected crew of ideologues with brazen contempt for real-world law and no fiduciary relationship to anyone is not too swift -- whether or not they have law degrees (or university chairs in law and legal history). Not all debian-legal participants deserve to be tarred with that brush, but the ones who do are numerous enough and loud enough to give me pause. All rambling and ad hominem attacks aside, DFSG analysis is not at all about risk; it is about determining whether or not the license imposes non-free restrictions or requirements on licensees. Argument from authority will not change that, particularly since it is unclear that anyone has -- or will ever have -- relevant experience in law or fiduciary duty you specified. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: BitTorrent Open Source License (Proposed Changes)
On 8/1/05, Michael Poole [EMAIL PROTECTED] wrote: All rambling and ad hominem attacks aside, DFSG analysis is not at all about risk; it is about determining whether or not the license imposes non-free restrictions or requirements on licensees. Argument from authority will not change that, particularly since it is unclear that anyone has -- or will ever have -- relevant experience in law or fiduciary duty you specified. One man's rambling is another man's grounding in real-world law. As for ad hominem attacks, I did say that not all debian-legal participants deserve to be tarred with that brush -- so it's only an attack on _you_ if you think that ideologues with brazen contempt for real-world law fits _you_. (The self-selected and no fiduciary relationship bits are, I think, uncontroversial -- does anyone here feel like asserting that they are legally liable for the consequences of decisions influenced by d-l discussions?) I did have a couple of conspicuous individuals in mind, and you were not one of them; if you can't think of anyone around here whom the shoe fits a lot better than it fits you, my apologies. In any case, if you want to say that risk management is outside DFSG analysis (whatever that is), that's fine; but then you shouldn't be equating DFSG-free with OK, ftpmasters, let it into the archive. A formalist attitude towards the DFSG, in which every objection to an upload has to map into one of its clauses, would probably even strike Justice Clarence Thomas as taking strict constructionism a little too far. Call citations to the actual law in one jurisdiction or another argument from authority if you like, but if that kind of authority isn't relevant to debian-legal then I hope that debian-legal isn't very relevant to Debian. Cheers, - Michael
Re: BitTorrent Open Source License (Proposed Changes)
Michael K. Edwards writes: On 8/1/05, Michael Poole [EMAIL PROTECTED] wrote: All rambling and ad hominem attacks aside, DFSG analysis is not at all about risk; it is about determining whether or not the license imposes non-free restrictions or requirements on licensees. Argument from authority will not change that, particularly since it is unclear that anyone has -- or will ever have -- relevant experience in law or fiduciary duty you specified. One man's rambling is another man's grounding in real-world law. As for ad hominem attacks, I did say that not all debian-legal participants deserve to be tarred with that brush -- so it's only an attack on _you_ if you think that ideologues with brazen contempt for real-world law fits _you_. (The self-selected and no fiduciary relationship bits are, I think, uncontroversial -- does anyone here feel like asserting that they are legally liable for the consequences of decisions influenced by d-l discussions?) I did have a couple of conspicuous individuals in mind, and you were not one of them; if you can't think of anyone around here whom the shoe fits a lot better than it fits you, my apologies. In any case, if you want to say that risk management is outside DFSG analysis (whatever that is), that's fine; but then you shouldn't be equating DFSG-free with OK, ftpmasters, let it into the archive. A formalist attitude towards the DFSG, in which every objection to an upload has to map into one of its clauses, would probably even strike Justice Clarence Thomas as taking strict constructionism a little too far. Call citations to the actual law in one jurisdiction or another argument from authority if you like, but if that kind of authority isn't relevant to debian-legal then I hope that debian-legal isn't very relevant to Debian. I have not meant to equate DFSG freeness with what can go into Debian, but DFSG freeness is an important threshold issue. If my messages misled on that point, I apologize. There are other factors to consider, but this thread was originally about which changes were necessary to make the BitTorrent Open Source License DFSG-free, and I meant only to address that question. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: BitTorrent Open Source License (Proposed Changes)
On 8/1/05, Michael Poole [EMAIL PROTECTED] wrote: I have not meant to equate DFSG freeness with what can go into Debian, but DFSG freeness is an important threshold issue. If my messages misled on that point, I apologize. There are other factors to consider, but this thread was originally about which changes were necessary to make the BitTorrent Open Source License DFSG-free, and I meant only to address that question. Fair enough. :-) But be aware that, if you are in the US and Burger King v. Rudzewicz is any guide, negotiating the terms with the licensor does more to bring you, and anyone on whose behalf you can be said to be negotiating, into the personal jurisdiction of their home state than a choice of venue clause ever could. It makes it a lot more likely that the loser-pays and waiver-of-jury-trial provisions will stick. (Looks like waiver-of-jury-trial was cut from the latest draft; but there's also that can't construe against the drafter garbage.) It guarantees that the Section 4c language about adding notice of effect on third-party IP rights will tangle with the Song-Beverly Act and Ninth Circuit law on vicarious liability and indemnification. You may not think that you are negotiating on legal issues, just freeness -- but no court will see it that way. Myself, I would no more redistribute a peer-to-peer client offered under a license like BitTorrent's than I would play Russian Roulette with a loaded Uzi. But YMMV. Cheers, - Michael (IANAL, TINLA)
Re: BitTorrent Open Source License (Proposed Changes)
On Mon, Aug 01, 2005 at 01:46:50PM -0700, Michael K. Edwards wrote: On 8/1/05, Michael Poole [EMAIL PROTECTED] wrote: All rambling and ad hominem attacks aside, DFSG analysis is not at all about risk; it is about determining whether or not the license imposes non-free restrictions or requirements on licensees. Argument from authority will not change that, particularly since it is unclear that anyone has -- or will ever have -- relevant experience in law or fiduciary duty you specified. One man's rambling is another man's grounding in real-world law. So you believe that posting your life story to debian-legal qualifies as grounding in real-world law? -- Steve Langasek postmodern programmer signature.asc Description: Digital signature
Re: BitTorrent Open Source License (Proposed Changes)
On 8/1/05, Michael K. Edwards [EMAIL PROTECTED] wrote: Myself, I would no more redistribute a peer-to-peer client offered under a license like BitTorrent's than I would play Russian Roulette with a loaded Uzi. But YMMV. I suppose I should explain that. I may or may not have used one BitTorrent client or another for the purpose of obtaining, say, an Ubuntu LiveCD image over a peer-to-peer network. But I have not knowingly consented to _any_ contract terms regarding _any_ such client, nor have I distributed any software bundle that might contain such a thing to anyone else in any way that I don't consider to be transfer of a copy, made under someone else's auspices, that I own under 17 USC 109. Now that I look at it, it seems blazingly obvious to me that the BitTorrent protocol, hierarchy, and license are designed as a package to push the liability for Napster-like usage patterns onto someone, _anyone_ other than the software authors. That's prima facie evidence that they fully expect to have to defend such a suit sooner or later -- and, judging from a friendly visit to someone near and dear to me from an IT staffer on whose operations console a BitTorrent client came up as eDonkey / eMule, I'm guessing sooner. I don't lie down in front of oncoming trains, and I don't climb into bed with people who are daring the RIAA and MPAA to drop lawyerbombs on their bedrooms. Especially not in a jurisdiction with interesting indemnity provisions. If I bore any legal or fiduciary relationship to Debian (which I don't), I wouldn't really advise Debian to do so either. Cheers, - Michael (IANAL, TINLA)
Re: BitTorrent Open Source License (Proposed Changes)
On 8/1/05, Steve Langasek [EMAIL PROTECTED] wrote: So you believe that posting your life story to debian-legal qualifies as grounding in real-world law? It qualifies as a reminder to anyone who's considering taking me seriously that they're doing so based on the arguments I raise and whatever opinion of me they may derive from them, not my credentials. Given that I am making myself somewhat conspicuous by espousing unpopular positions and citing case law out the yin-yang, it seemed prudent to do a little more to cover my ass than sprinkle IANAL around liberally. Cheers, - Michael
Re: BitTorrent Open Source License (Proposed Changes)
On 7/30/05, Sean Kellogg [EMAIL PROTECTED] wrote: [snip] ... choice-of-venue clauses just keep people from playing the venue shopping game. Is there actually anywhere in the world that a choice-of-venue clause in a contract of adhesion is worth the paper it isn't written on? I wouldn't think much of a court that let a shrink-wrap license dictate forum non conveniens without proper regard for the equities, unless there is real evidence that the offeree intended to be bound by it. But I'm going to take offense to your claim in a wholey other matter, if you don't mind, and say what right does Debian-Legal have in deciding my legal decisions as a user? The DFSG set out the kind of software that Debian is to distribute, it is not a tool for D-L to make my legal decisions. If I want to have a choice-of-venue agreement with a software distributor, who is Debian to stand in my way? Is Debian my mommy now, making sure I don't agree to something I shouldn't? Oddly enough, I'm going to stand up for Andrew on this one. Where Debian has some sway over upstream's terms of offer, it makes sense to discourage both DFSG-dubious and unwise-whether-free-or-not drafting choices. While the litmus tests that seem to be current among debian-legal denizens are not necessarily the tests that I would apply, I think they generally represent a sincere effort to act as good stewards of the software commons. I think that all debian-legal readers should feel free to raise their concerns about the burdens that a given license might place on one party or another, and I trust the ftpmasters and maintainers to make reasonable decisions once the dust settles. And the pet-the-cat-license is a really poor counter argument. Like I said before, the suit is going to happen SOMEWHERE. Stating that somewhere in the license reduces legal uncertainty... which is a good thing. Maybe, if law suits could be started in the ether such a requirement would be onerous... but it can hardly be said to be onerous in a world where things must happen in physical space. The suit has to be somewhere... might as well be in Santa Cruz. Now that would be convenient for me. :-) But I think the original said Santa Clara County, which is over the hill. Personally, I never write choice of venue into contracts (yes, though I am not a lawyer I have drafted contracts involving fairly large amounts of money), only choice of law (State of California, which I trust courts elsewhere in the US to be competent to interpret). That's specific enough for both sides to understand the ground rules, without tempting either to exploit localized anomalies in case law. What the fuck?! I'm sorry, but this is the line that really ticked me off. Where the hell do you get off calling the U.S. Civ Pro rules extremely right-wing? I mean... honestly? Relax. Laugh. Relish the thought that you understand just how comical it is for an Australian to refer to the Ninth Circuit and the People's Republic of the Bay Area as extremely right-wing. Huh? Debian has determined that clauses of the GPL are non-free? That's outrageous. Actually... you're entire e-mail (including the other one) is just really infuriating. Especially the line about complex licenses being done by a lawyer. What exactly do you think I am? I'm pretty sure my legal training gives me the expertice to comment on license language... I sure paid an awful lot of money if it doesn't at least get me that. I'll admit, I haven't taken the bar... but since the bar doesn't cover Copyrights, I'm pretty sure I have all the formal training any other lawyer has. Andrew's got reasonable points here. AIUI the GPL is basically the outer limit of the DFSG in one direction (the TeX license being the outer limit in the other), and the GPL's requirements would indeed by a significant inconvenience in this modern age without the combination of 3a and the equivalent access to copy paragraph. And while I think we are all qualified to comment, and I don't always follow my lawyer's advice on questions of contract language, I do not change contract terms lightly once they have received a trusted attorney's scrutiny and approval. Seriously man, where do you get off? Oh, the usual place, I expect. People in the Southern Hemisphere aren't _that_ different from us. :-) Cheers, - Michael
Re: BitTorrent Open Source License (Proposed Changes)
On Sunday 31 July 2005 12:13 am, Michael K. Edwards wrote: On 7/30/05, Sean Kellogg [EMAIL PROTECTED] wrote: [snip] ... choice-of-venue clauses just keep people from playing the venue shopping game. Is there actually anywhere in the world that a choice-of-venue clause in a contract of adhesion is worth the paper it isn't written on? I wouldn't think much of a court that let a shrink-wrap license dictate forum non conveniens without proper regard for the equities, unless there is real evidence that the offeree intended to be bound by it. The term contract of adhesion is one thrown around a lot. Standard form, non-negotiable contracts, are not really contracts of adhesion in the sense of equities. There needs to be power differential to be really considered adhesion. BitTorrent giving their software away for free to people who don't NEED the software (in the way you NEED food) is not a power differential situation. I suggest to you that most, if not all, software licenses that contain choice-of-venue clauses will be upheld. But I'm going to take offense to your claim in a wholey other matter, if you don't mind, and say what right does Debian-Legal have in deciding my legal decisions as a user? The DFSG set out the kind of software that Debian is to distribute, it is not a tool for D-L to make my legal decisions. If I want to have a choice-of-venue agreement with a software distributor, who is Debian to stand in my way? Is Debian my mommy now, making sure I don't agree to something I shouldn't? Oddly enough, I'm going to stand up for Andrew on this one. Where Debian has some sway over upstream's terms of offer, it makes sense to discourage both DFSG-dubious and unwise-whether-free-or-not drafting choices. While the litmus tests that seem to be current among debian-legal denizens are not necessarily the tests that I would apply, I think they generally represent a sincere effort to act as good stewards of the software commons. I think that all debian-legal readers should feel free to raise their concerns about the burdens that a given license might place on one party or another, and I trust the ftpmasters and maintainers to make reasonable decisions once the dust settles. I think that sounds lovely in theory... however, I really have no sense of how the ftpmasters synthesis the debates that go on here. What I do know is that this list spends a lot of time declaring licenses to be non-free based on dubious tests that are poorly grounded in the DFSG or legal thinking that would never fly in a court room. The discussion on what constitutes discrimination under DFSG #1 continues to be so outside of mainstream legal thinking to be debilitating. I was actually trying to describe the thinking to a legal prof who is pretty well respected among the software industry and he was amazed to hear that was considered a viable way of thinking of discrimination. And the pet-the-cat-license is a really poor counter argument. Like I said before, the suit is going to happen SOMEWHERE. Stating that somewhere in the license reduces legal uncertainty... which is a good thing. Maybe, if law suits could be started in the ether such a requirement would be onerous... but it can hardly be said to be onerous in a world where things must happen in physical space. The suit has to be somewhere... might as well be in Santa Cruz. Now that would be convenient for me. :-) But I think the original said Santa Clara County, which is over the hill. Personally, I never write choice of venue into contracts (yes, though I am not a lawyer I have drafted contracts involving fairly large amounts of money), only choice of law (State of California, which I trust courts elsewhere in the US to be competent to interpret). That's specific enough for both sides to understand the ground rules, without tempting either to exploit localized anomalies in case law. Agreed, choice-of-venue clauses are pretty stupid... its just a matter of airfare :) What the fuck?! I'm sorry, but this is the line that really ticked me off. Where the hell do you get off calling the U.S. Civ Pro rules extremely right-wing? I mean... honestly? Relax. Laugh. Relish the thought that you understand just how comical it is for an Australian to refer to the Ninth Circuit and the People's Republic of the Bay Area as extremely right-wing. Huh? Debian has determined that clauses of the GPL are non-free? That's outrageous. Actually... you're entire e-mail (including the other one) is just really infuriating. Especially the line about complex licenses being done by a lawyer. What exactly do you think I am? I'm pretty sure my legal training gives me the expertice to comment on license language... I sure paid an awful lot of money if it doesn't at least get me that. I'll admit, I haven't taken the bar... but since the bar doesn't cover Copyrights,
Re: BitTorrent Open Source License (Proposed Changes)
Sean Kellogg writes: On Saturday 30 July 2005 02:26 pm, Michael Janssen wrote: Sean Kellogg skellogg at u.washington.edu writes: [8 Cut Venue Clause and re-writing 8] Hmm... Personally, I'm not convinced that venue clauses are non-free. But if they are willing to drop a venue requirement, that's great for users of Debian! I'm surprised that folks on this list are comfortable with such strong choice-of-law provisions. Again, I don't believe such clauses are non-free, but I believe I've heard the argument made before. (A license has got to be interpreted under laws somewhere... might as well establish the laws prior to the agreement instead of fighting it out in court.) I was under the impression that choice-of-law was OK for most, but choice-of-venue was cause for non-DFSG-ness. Like I said, I'm not convinced. If there is a suit, the suit must be brought somewhere... what is non-free about deciding that somewhere ahead of time? Inconvenient to you? Maybe. But as I undersatnd it, being sued is always inconvenient, regardless of where the suit will be brought. I hardly consider that descrimination, so what DFSG clause is applicable here? In contrast to choice of law, choice of venue requires users who are not normally subject to that court's personal jurisdiction to give up a right they normally have to use the software. Take your pick whether that is discrimination or a fee or something else, but waiver of pre-existing rights is a clear violation of the spirit of the DFSG. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: BitTorrent Open Source License (Proposed Changes)
On Sat, Jul 30, 2005 at 05:20:40PM -0700, Sean Kellogg wrote: On Saturday 30 July 2005 04:38 pm, Andrew Suffield wrote: On Sat, Jul 30, 2005 at 08:55:33AM -0700, Sean Kellogg wrote: Hmm... Personally, I'm not convinced that venue clauses are non-free. But if they are willing to drop a venue requirement, that's great for users of Debian! I'm surprised that folks on this list are comfortable with such strong choice-of-law provisions. Again, I don't believe such clauses are non-free, but I believe I've heard the argument made before. (A license has got to be interpreted under laws somewhere... might as well establish the laws prior to the agreement instead of fighting it out in court.) The issue isn't precisely the construct, but rather writing the license in such a way as to massively and unfairly benefit the license holder at the expense of the user - that's hardly in the spirit of a free license. The point of a free license, after all, is to *give* stuff away. Not to extract payment in some form. (To forestall the inevitable trolls: the GPL adds restrictions in order to directly further the cause of giving stuff away, not to benefit the licensor, except insofar as he benefits from the improvements to society as a whole). Choice of law provisions are thusly fine so long as they don't choose laws that strongly favour the license holder. Locations with properly functioning justice systems are generally okay. Crazy tinpot dictatorships probably aren't. Choice of venue clauses are a problem because being forced to travel halfway around the world to defend yourself against an entirely spurious claim is hardly reasonable, and so they are essentially a license to harass the user at whim. Like the pet-a-cat license, only worse. I can sue you, right now, right here in my home State of Washington for any spurious claim I so deem. I don't need a choice of venue clause to do that. That's your own US-law perversion; it doesn't affect me, since I neither live in the US nor have any intention to ever set foot in the country. I'm well aware of it and I simply don't care about it. Claiming that a license provision is okay because it's no worse than base US law is offensive, at best. As best I can tell, the choice of law clauses here are extremely right-wing but not actually favorable to either party. Where the hell do you get off calling the U.S. Civ Pro rules extremely right-wing? Aside from the fact that all US law is pretty right-wing from the perspective of those of us who live in the free world (especially socialist countries like mine), they've added loser-pays, excluded jury trials, and overridden bias-against-licensor. That sounds right-wing to me. Heck, this whole concept of locking down the details of the process is a right-wing one. This is from http://en.wikipedia.org/wiki/Left-Right_politics: * Fair or moral outcomes (left) versus fair and correct processes (right). All classic liberalism is process-based, the free market is the best example. Robert Nozick is one of the 20th century theorists who emphasised this distinction between historical and end-result principles (see Anarchy, State, and Utopia, New York, 1974, pp. 153-155). Among the politicians who support this distinction is Australian Labor Party ex-leader Mark Latham. What's the concern here? The GPL only requires that I provide a source distribution method for three years (clause 3(b)) We don't consider clauses 3b or 3c to be free. We require distribution under 3a to be possible, in which case the license is free (since the licensee can use 3a and therefore be exempt from the others). I believe this was actually an issue on one occasion, although I don't recall the details. (Obviously, the GPL doesn't require you provide source for three years). Debian has determined that clauses of the GPL are non-free? That's outrageous. Deal with it, there's all sorts of ways to abuse the GPL such that it becomes non-free. Reiser would be one of the more notorious cases. I don't believe there are any licenses so simple that they haven't been abused by somebody to the point of being non-free, except maybe the do-whatever-the-fuck-you-want license. Especially the line about complex licenses being done by a lawyer. What exactly do you think I am? An undergrad law student. Letting law undergrads write licenses is at least as bad as letting CS undergrads write code (and CS students don't have to undergo further training before they can practice). And lawyers who've just passed their vocational qualification don't normally get allowed to write important license/contract text by the practice they join, until they've acquired a considerable amount of experience. -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `-
Re: BitTorrent Open Source License (Proposed Changes)
Francesco Poli frx at winstonsmith.info writes: I've just re-read the relevant threads, and I do not agree that the two above mentioned clauses are the only issues. [...] Consequently, the issues to be solved are, at least, . one in clause 4b . one in 4c . _two_ in 13 Okay, I have reworked the language again in order to handle these three issues instead of the two. ORIGINAL Clause 4b-c: b. Availability of Source Code. You must make available, under the terms of this License, the Source Code of the Licensed Product and any Modifications that you distribute, either on the same media as you distribute any executable or other form of the Licensed Product, or via a mechanism generally accepted in the software development community for the electronic transfer of data (an Electronic Distribution Mechanism). The Source Code for any version of Licensed Product or Modifications that you distribute must remain available for at least twelve (12) months after the date it initially became available, or at least six (6) months after a subsequent version of said Licensed Product or Modifications has been made available. You are responsible for ensuring that the Source Code version remains available even if the Electronic Distribution Mechanism is maintained by a third party. c. Intellectual Property Matters. i.Third Party Claims. If you have knowledge that a license to a third party's intellectual property right is required to exercise the rights granted by this License, you must include a text file with the Source Code distribution titled LEGAL that describes the claim and the party making the claim in sufficient detail that a recipient will know whom to contact. If you obtain such knowledge after you make any Modifications available as described in Section 4(b), you shall promptly modify the LEGAL file in all copies you make available thereafter and shall take other steps (such as notifying appropriate mailing lists or newsgroups) reasonably calculated to inform those who received the Licensed Product from you that new knowledge has been obtained. ii.Contributor APIs. If your Modifications include an application programming interface (API) and you have knowledge of patent licenses that are reasonably necessary to implement that API, you must also include this information in the LEGAL file. iii.Representations. You represent that, except as disclosed pursuant to 4(c)(i) above, you believe that any Modifications you distribute are your original creations and that you have sufficient rights to grant the rights conveyed by this License. MODIFIED Clause 4b-c: b. Availability of Source Code. You must make available, under the terms of this License, the Source Code of the Licensed Product and any Modifications that you distribute, either on the same media as you distribute any executable or other form of the Licensed Product, or via a mechanism generally accepted in the software development community for the electronic transfer of data (an Electronic Distribution Mechanism). The Source Code for any version of Licensed Product or Modifications that you distribute must remain available for as long as any executable or other form of the Licensed Product that you distribute. You are responsible for ensuring that the Source Code version remains available even if the Electronic Distribution Mechanism is maintained by a third party. c. Intellectual Property Matters. i.Third Party Claims. If you have knowledge that a license to a third party's intellectual property right is required to exercise the rights granted by this License, you must include a text file with the Source Code distribution clearly identifiable that describes the claim and the party making the claim in sufficient detail that a recipient will know whom to contact. If you obtain such knowledge after you make any Modifications available as described in Section 4(b), you shall promptly modify the notice file in all copies you make available thereafter and shall take other steps (such as notifying appropriate mailing lists or newsgroups) reasonably calculated to inform those who received the Licensed Product from you that new knowledge has been obtained. ii.Contributor APIs. If your Modifications include an application programming interface (API) and you have knowledge of patent licenses that are reasonably necessary to implement that API, you must also include this information in the notice file. iii.Representations. You represent that, except as disclosed pursuant to 4(c)(i) above, you believe that any Modifications you distribute are your original creations and that you have sufficient rights to grant the rights conveyed by this License.
Re: BitTorrent Open Source License (Proposed Changes)
On Sunday 31 July 2005 06:45 am, Michael Poole wrote: Sean Kellogg writes: On Saturday 30 July 2005 02:26 pm, Michael Janssen wrote: Sean Kellogg skellogg at u.washington.edu writes: [8 Cut Venue Clause and re-writing 8] Hmm... Personally, I'm not convinced that venue clauses are non-free. But if they are willing to drop a venue requirement, that's great for users of Debian! I'm surprised that folks on this list are comfortable with such strong choice-of-law provisions. Again, I don't believe such clauses are non-free, but I believe I've heard the argument made before. (A license has got to be interpreted under laws somewhere... might as well establish the laws prior to the agreement instead of fighting it out in court.) I was under the impression that choice-of-law was OK for most, but choice-of-venue was cause for non-DFSG-ness. Like I said, I'm not convinced. If there is a suit, the suit must be brought somewhere... what is non-free about deciding that somewhere ahead of time? Inconvenient to you? Maybe. But as I undersatnd it, being sued is always inconvenient, regardless of where the suit will be brought. I hardly consider that descrimination, so what DFSG clause is applicable here? In contrast to choice of law, choice of venue requires users who are not normally subject to that court's personal jurisdiction to give up a right they normally have to use the software. Take your pick whether that is discrimination or a fee or something else, but waiver of pre-existing rights is a clear violation of the spirit of the DFSG. How is that descrimination or a fee? Someone earlier mentioned that right to a jury trial is protected by the DFSG?! Seriously people, we are talking about software here. I personally subscribe to the four freedoms staked out by FSF. I understand that Debian has extended those freedoms in certain areas with the DFSG, and in ways that I agree make sense, but reading in rights to a jury trial or a right to have only personal jurisdiction within the state/country of residence is just not one of them. But, if I grant your point, and accept that the DFSG protects my right to all those things, why doesn't it invalidate licenses that waive liability to the distributor? Isn't that my inaliable right... a fee I must pay in order to use the software... aren't I being descriminated against to the benefit of the developer and distributor. Its an outrage, its unexusable... but it is the way it is, and I fail to see a distinction between libability waivers, venue clauses, or rights to jury trials. -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair w: http://probonogeek.blogspot.com So, let go ...Jump in ...Oh well, what you waiting for? ...it's all right ...'Cause there's beauty in the breakdown
Re: BitTorrent Open Source License (Proposed Changes)
On Sunday 31 July 2005 07:44 am, Andrew Suffield wrote: An undergrad law student. Letting law undergrads write licenses is at least as bad as letting CS undergrads write code (and CS students don't have to undergo further training before they can practice). And lawyers who've just passed their vocational qualification don't normally get allowed to write important license/contract text by the practice they join, until they've acquired a considerable amount of experience. You other comments are really not worth responding to, but as a matter of personal honor, I am no undergrad. I graduated in Political Science with distinction, in the class of 2003 with the top thesis award and top honors in my department. I am now a law student, which in the States is a Doctoral degree, entering into my 3L year having just been awarded the highest grade in copyrights. Among my peers I am considered the foremost expert on the issue, and several professors have sought me out for my opinions on licensing and copyright matters for pending law review articles. As for drafting licenses, I just completed the license drafting course in which my licenses (final project, dozens of pages sort of things) was presented as the best example of how to accomplish the goals of the assignmnet. I was also the winner of the Heller Elerman Contract Drafting competition at my school. Now, I recognize that I am still in school and haven't taken the bar. But I'm no dummy. That being said, I have a lot to learn... but based on the conversations on this list, I think I'm about as qualified as anyone else to point out that the term available is different from distribute and should be changed if you want to avoid confusion. -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair w: http://probonogeek.blogspot.com So, let go ...Jump in ...Oh well, what you waiting for? ...it's all right ...'Cause there's beauty in the breakdown
Re: BitTorrent Open Source License (Proposed Changes)
Now, I recognize that I am still in school and haven't taken the bar. But I'm no dummy. That being said, I have a lot to learn... but based on the conversations on this list, I think I'm about as qualified as anyone else to point out that the term available is different from distribute and should be changed if you want to avoid confusion. Extreamly true. Remember that in general the contract am held to is that which I sign. I will read the contract based on normal enigish. If the legal meaning f the word differs from the common meaning, the common meaning MUST prevail, as the people who are bound by the contract WILL interpret it using the common meaning. Until Legislation that requires that a layer be made available by the contractor from which the contractee can recive binding explanations of contract terms, that is the ONLY fair and equitable way to interperate contracts. For that reason, A non-lawyer is equally suited to point out potential wording problems in a contract as a lawyer. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: BitTorrent Open Source License (Proposed Changes)
It amuses me to make the comparison between Mr. Kellogg's credentials and my own. I am no undergrad either; shedding that status took me four tries, two universities, and just over seven years. I graduated in Physics with no distinction to speak of, in December 1995, and it was rather an anticlimactic affair as I had effectively been in the astronomy Ph.D. program for a year and a half. I didn't last much longer in it, though -- I was a lousy excuse for a grad student in almost every respect, and though I respected several professors, the one that I admired (and the only one remotely likely to supervise my Ph.D. thesis) broke his neck in a car wreck the next summer and died not long thereafter. Besides, I got married that summer, and marriage focuses the mind wonderfully. I went back into industry (by way of the quick-and-easy sysadmin path) and, two jobs later, split to co-found a shoestring software startup with a buddy. (In the meantime, I had witnessed for the second time the beginnings of the collapse of a company due to a botched million-dollar deal involving contract terms that did not reflect the economic reality of the exchange.) The startup was a textbook example of experience is what you get when you don't get what you thought you were gonna get; I got a lot of experience in the next six years or so. I've been back in the corporate game for a couple of years now, racking up my lifetime score to date to a total of four Fortune 500 companies, two US government agencies, two universities (not counting mere dabbling), and numerous flavors of start-up and small business. Along the way, I have been involved in negotiating some rather complex business relationships with contracts and statements of work and pricing schedules attached. I have seen first-hand the operations of almost every class of software license there is, with trade secrets and patents and copyrights and trademarks and a dozen kinds of dollar incentives flying fast and thick. I have watched people use contract language to game pundits and public opinion and the stock markets and the tax system and international trade. Corporate legal staff and outside counsel have been known to come to me for a briefing on the facts of what legal risks I see myself and my colleagues taking, for editorial review of the factual portions of contracts, and in some cases to compare notes on the applicable law itself. Among my peers I am considered the person to ask to evaluate the primary literature on almost any topic from psychopharmacology to French Renaissance performance practice -- if you can get me to turn my attention to the problem long enough not to just shoot from the hip. I may not get the right answer but you'll find out things about the field that you never expected. What authority does that grant me? Absolutely none. But once I've put a thousand hours or so into thinking about a given topic, I generally have something to say, and some evidence to back it up. And it makes for an interesting life. Cheers, - Michael
Re: BitTorrent Open Source License (Proposed Changes)
Sean Kellogg writes: On Sunday 31 July 2005 06:45 am, Michael Poole wrote: In contrast to choice of law, choice of venue requires users who are not normally subject to that court's personal jurisdiction to give up a right they normally have to use the software. Take your pick whether that is discrimination or a fee or something else, but waiver of pre-existing rights is a clear violation of the spirit of the DFSG. How is that descrimination or a fee? Someone earlier mentioned that right to a jury trial is protected by the DFSG?! Seriously people, we are talking about software here. I personally subscribe to the four freedoms staked out by FSF. I understand that Debian has extended those freedoms in certain areas with the DFSG, and in ways that I agree make sense, but reading in rights to a jury trial or a right to have only personal jurisdiction within the state/country of residence is just not one of them. Waiving normal personal jurisdiction is a lot more costly than the proverbial (and still forbidden) pet a cat/dog license -- yet there is nothing in the DFSG that directly addresses petting an animal. But, if I grant your point, and accept that the DFSG protects my right to all those things, why doesn't it invalidate licenses that waive liability to the distributor? Isn't that my inaliable right... a fee I must pay in order to use the software... aren't I being descriminated against to the benefit of the developer and distributor. Its an outrage, its unexusable... but it is the way it is, and I fail to see a distinction between libability waivers, venue clauses, or rights to jury trials. It is not discrimination: every user is treated identically. It is not a fee: implicit warranty and similar liabilities are created by law. Where a warranty disclaimer applies, it is because the relevant law allows that warranty to be disclaimed. Michael Poole -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: BitTorrent Open Source License (Proposed Changes)
On Sunday 31 July 2005 06:35 pm, Michael Poole wrote: Sean Kellogg writes: On Sunday 31 July 2005 06:45 am, Michael Poole wrote: In contrast to choice of law, choice of venue requires users who are not normally subject to that court's personal jurisdiction to give up a right they normally have to use the software. Take your pick whether that is discrimination or a fee or something else, but waiver of pre-existing rights is a clear violation of the spirit of the DFSG. How is that descrimination or a fee? Someone earlier mentioned that right to a jury trial is protected by the DFSG?! Seriously people, we are talking about software here. I personally subscribe to the four freedoms staked out by FSF. I understand that Debian has extended those freedoms in certain areas with the DFSG, and in ways that I agree make sense, but reading in rights to a jury trial or a right to have only personal jurisdiction within the state/country of residence is just not one of them. Waiving normal personal jurisdiction is a lot more costly than the proverbial (and still forbidden) pet a cat/dog license -- yet there is nothing in the DFSG that directly addresses petting an animal. But, if I grant your point, and accept that the DFSG protects my right to all those things, why doesn't it invalidate licenses that waive liability to the distributor? Isn't that my inaliable right... a fee I must pay in order to use the software... aren't I being descriminated against to the benefit of the developer and distributor. Its an outrage, its unexusable... but it is the way it is, and I fail to see a distinction between libability waivers, venue clauses, or rights to jury trials. It is not discrimination: every user is treated identically. Same with the petting an animal... everyone has to do it. Did you know that pre-18 years olds CANNOT agree to a waiver of liability? Seems waivers descriminate against them. It is not a fee: implicit warranty and similar liabilities are created by law. Where a warranty disclaimer applies, it is because the relevant law allows that warranty to be disclaimed. Personal jurisdiction and rights to a jury trial are created by law... where venue clause and trial by jury waivers apply, it is because the relevant law allows them to stand. See, I can write similar sentences that are JUST as true. Should we continue to dance, or will you accept my point? -Sean -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair w: http://probonogeek.blogspot.com So, let go ...Jump in ...Oh well, what you waiting for? ...it's all right ...'Cause there's beauty in the breakdown
Re: BitTorrent Open Source License (Proposed Changes)
On Sun, Jul 31, 2005 at 07:03:18PM -0700, Sean Kellogg wrote: But, if I grant your point, and accept that the DFSG protects my right to all those things, why doesn't it invalidate licenses that waive liability to the distributor? Isn't that my inaliable right... a fee I must pay in order to use the software... aren't I being descriminated against to the benefit of the developer and distributor. Its an outrage, its unexusable... but it is the way it is, and I fail to see a distinction between libability waivers, venue clauses, or rights to jury trials. It is not discrimination: every user is treated identically. Same with the petting an animal... everyone has to do it. Did you know that pre-18 years olds CANNOT agree to a waiver of liability? Seems waivers descriminate against them. No, the local laws discriminate against them. TTBOMK, their legal guardian can still agree to such a waiver on their behalf. It is not a fee: implicit warranty and similar liabilities are created by law. Where a warranty disclaimer applies, it is because the relevant law allows that warranty to be disclaimed. Personal jurisdiction and rights to a jury trial are created by law... where venue clause and trial by jury waivers apply, it is because the relevant law allows them to stand. Well, setting aside the urge to nitpick the difference between law, and a constitution... There are very real (though not *overly* probable) scenarios in which a hostile upstream can abuse a choice of venue clause to cause substantial harm to the Free Software community. In contrast, a no warranty clause seems to be strictly defensive. This is a difference between freedom from *being* wrongly sued by a copyright holder (choice of venue), vs. freedom *to* wrongly sue a copyright holder (waiver of liability). Is there some *practical* reason I'm overlooking why we should be concerned about a waiver of liability being a fee to those who receive Free Software? -- Steve Langasek postmodern programmer signature.asc Description: Digital signature
Re: BitTorrent Open Source License (Proposed Changes)
Sean Kellogg writes: On Sunday 31 July 2005 06:35 pm, Michael Poole wrote: It is not discrimination: every user is treated identically. Same with the petting an animal... everyone has to do it. Did you know that pre-18 years olds CANNOT agree to a waiver of liability? Seems waivers descriminate against them. It is perhaps not a coincidence that pet-an-animal licenses are non-free because they are fees, not because they discriminate. Some people would pet an animal anyway (or be subject to the personal jurisdiction of a particular venue), it breaches the DFSG for a license to require it. It is not a fee: implicit warranty and similar liabilities are created by law. Where a warranty disclaimer applies, it is because the relevant law allows that warranty to be disclaimed. Personal jurisdiction and rights to a jury trial are created by law... where venue clause and trial by jury waivers apply, it is because the relevant law allows them to stand. See, I can write similar sentences that are JUST as true. Should we continue to dance, or will you accept my point? They do say that imitation is the sincerest form of flattery... but you missed my point that the law's establishment of implicit warranty is what imposes the liability in question. Being dragged across the country or the globe is a liability imposed by the license. Denying those costs is consistent with software freedom; imposing them is not. Michael -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: BitTorrent Open Source License (Proposed Changes)
On Sun, 31 Jul 2005, Michael Poole wrote: It is not a fee: implicit warranty and similar liabilities are created by law. Where a warranty disclaimer applies, it is because the relevant law allows that warranty to be disclaimed. I'm not sure that's a distinction. After all, a fee applies when the relevant law allows a fee to be charged. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: BitTorrent Open Source License (Proposed Changes)
On Saturday 30 July 2005 07:52 am, Michael Janssen wrote: Hello legal gurus: I have been trying to get the authors of BitTorrent to change their license (the BitTorrent Open Source License) in order to make it suitable for inclusion in Debian. The BitTorrent Open Source License has been discussed before on this list [1, 2]. It is my understanding that the only two sections which cause problems are Section 13 (choice-of-venue) and Section 4.b (keep source online for 6 months). I am trying to make it easy for Bram et al. to change the license and would like to propose new language specifically for him to include. The offending sections of the old license are included here, and my proposed changed sections. Would making these changes make the license suitable? Section 13: ORIGINAL: 13. Miscellaneous. This License represents the complete agreement concerning the subject matter hereof. If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This License shall be governed by California law provisions (except to the extent applicable law, if any, provides otherwise), excluding its conflict-of-law provisions. You expressly agree that any litigation relating to this license shall be subject to the jurisdiction of the Federal Courts of the Northern District of California or the Superior Court of the County of Santa Clara, California (as appropriate), with venue lying in Santa Clara County, California, with the losing party responsible for costs including, without limitation, court costs and reasonable attorneys fees and expenses. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Licensor expressly waive any rights to a jury trial in any litigation concerning Licensed Product or this License. Any law or regulation that provides that the language of a contract shall be construed against the drafter shall not apply to this License. MODIFIED: 13. Miscellaneous. This License represents the complete agreement concerning the subject matter hereof. If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This License shall be governed by California law provisions (except to the extent applicable law, if any, provides otherwise), excluding its conflict-of-law provisions. You expressly agree that any litigation relating to this license shall be subject to the jurisdiction of the Federal Courts of the Northern District of California or the Superior Court of the County of Santa Clara, California (as appropriate), with the losing party responsible for costs including, without limitation, court costs and reasonable attorneys fees and expenses. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and Licensor expressly waive any rights to a jury trial in any litigation concerning Licensed Product or this License. Any law or regulation that provides that the language of a contract shall be construed against the drafter shall not apply to this License. Hmm... Personally, I'm not convinced that venue clauses are non-free. But if they are willing to drop a venue requirement, that's great for users of Debian! I'm surprised that folks on this list are comfortable with such strong choice-of-law provisions. Again, I don't believe such clauses are non-free, but I believe I've heard the argument made before. (A license has got to be interpreted under laws somewhere... might as well establish the laws prior to the agreement instead of fighting it out in court.) Section 4.b: ORIGINAL: b. Availability of Source Code. You must make available, under the terms of this License, the Source Code of the Licensed Product and any Modifications that you distribute, either on the same media as you distribute any executable or other form of the Licensed Product, or via a mechanism generally accepted in the software development community for the electronic transfer of data (an Electronic Distribution Mechanism). The Source Code for any version of Licensed Product or Modifications that you distribute must remain available for at least twelve (12) months after the date it initially became available, or at least six (6) months after a subsequent version of said Licensed Product or Modifications has been made available. You are responsible for ensuring that the Source Code version remains available even if the Electronic Distribution Mechanism is maintained by a third party. MODIFIED: b. Availability of Source Code. You must make available, under the terms of this License, the Source Code of the Licensed Product and any Modifications that you distribute, either on the same media as you distribute any
Re: BitTorrent Open Source License (Proposed Changes)
Sean Kellogg skellogg at u.washington.edu writes: [8 Cut Venue Clause and re-writing 8] Hmm... Personally, I'm not convinced that venue clauses are non-free. But if they are willing to drop a venue requirement, that's great for users of Debian! I'm surprised that folks on this list are comfortable with such strong choice-of-law provisions. Again, I don't believe such clauses are non-free, but I believe I've heard the argument made before. (A license has got to be interpreted under laws somewhere... might as well establish the laws prior to the agreement instead of fighting it out in court.) I was under the impression that choice-of-law was OK for most, but choice-of-venue was cause for non-DFSG-ness. [8 Cut Section 4b and rewrite 8] What's the concern here? The GPL only requires that I provide a source distribution method for three years (clause 3(b))... why can't this license only require source distribution for six months? This change seems unnecessary to pass under the DSFG if the GPL is acceptable. The GPL gives you a choice of three methods - one of which is to provide the source at the same time with no requirement to keep it available. This license forces you to keep the source for any version you distribute electronically online for 6 months for every version you distribute - which is much much longer than the average source is kept in unstable, for example. --- Michael Janssen -- Jamuraa -- [EMAIL PROTECTED] -- [EMAIL PROTECTED] -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: BitTorrent Open Source License (Proposed Changes)
On Saturday 30 July 2005 02:26 pm, Michael Janssen wrote: Sean Kellogg skellogg at u.washington.edu writes: [8 Cut Venue Clause and re-writing 8] Hmm... Personally, I'm not convinced that venue clauses are non-free. But if they are willing to drop a venue requirement, that's great for users of Debian! I'm surprised that folks on this list are comfortable with such strong choice-of-law provisions. Again, I don't believe such clauses are non-free, but I believe I've heard the argument made before. (A license has got to be interpreted under laws somewhere... might as well establish the laws prior to the agreement instead of fighting it out in court.) I was under the impression that choice-of-law was OK for most, but choice-of-venue was cause for non-DFSG-ness. Like I said, I'm not convinced. If there is a suit, the suit must be brought somewhere... what is non-free about deciding that somewhere ahead of time? Inconvenient to you? Maybe. But as I undersatnd it, being sued is always inconvenient, regardless of where the suit will be brought. I hardly consider that descrimination, so what DFSG clause is applicable here? [8 Cut Section 4b and rewrite 8] What's the concern here? The GPL only requires that I provide a source distribution method for three years (clause 3(b))... why can't this license only require source distribution for six months? This change seems unnecessary to pass under the DSFG if the GPL is acceptable. The GPL gives you a choice of three methods - one of which is to provide the source at the same time with no requirement to keep it available. This license forces you to keep the source for any version you distribute electronically online for 6 months for every version you distribute - which is much much longer than the average source is kept in unstable, for example. Oh, wow... here my thought was people felt six months wasn't long enough... not too long. I suppose that certainly could be a problem for the manner in which Debian distributes, however, I don't think it is a DFSG problem. That aside, I wonder if your proposed language actually fixes the identified problem. The distributor is required to keep source code for any version so long as that version is available. It begs the questions what is available and I suggest it does not mean distribute because you chose not to use that term, even though it is used in early sections of the clause. So, if available != distribute, it could mean so long as I am able to acquire the software (regarldess of who is doing the distribution)... which is probably worse than the six month requirement in the current version. I think you would be better off changing the language from available to distribute to clear up an uncertainty. -- Sean Kellogg 3rd Year - University of Washington School of Law Graduate Professional Student Senate Treasurer UW Service Activities Committee Interim Chair w: http://probonogeek.blogspot.com So, let go ...Jump in ...Oh well, what you waiting for? ...it's all right ...'Cause there's beauty in the breakdown
Re: BitTorrent Open Source License (Proposed Changes)
On Sat, Jul 30, 2005 at 08:55:33AM -0700, Sean Kellogg wrote: Hmm... Personally, I'm not convinced that venue clauses are non-free. But if they are willing to drop a venue requirement, that's great for users of Debian! I'm surprised that folks on this list are comfortable with such strong choice-of-law provisions. Again, I don't believe such clauses are non-free, but I believe I've heard the argument made before. (A license has got to be interpreted under laws somewhere... might as well establish the laws prior to the agreement instead of fighting it out in court.) The issue isn't precisely the construct, but rather writing the license in such a way as to massively and unfairly benefit the license holder at the expense of the user - that's hardly in the spirit of a free license. The point of a free license, after all, is to *give* stuff away. Not to extract payment in some form. (To forestall the inevitable trolls: the GPL adds restrictions in order to directly further the cause of giving stuff away, not to benefit the licensor, except insofar as he benefits from the improvements to society as a whole). Choice of law provisions are thusly fine so long as they don't choose laws that strongly favour the license holder. Locations with properly functioning justice systems are generally okay. Crazy tinpot dictatorships probably aren't. Choice of venue clauses are a problem because being forced to travel halfway around the world to defend yourself against an entirely spurious claim is hardly reasonable, and so they are essentially a license to harass the user at whim. Like the pet-a-cat license, only worse. As best I can tell, the choice of law clauses here are extremely right-wing but not actually favorable to either party. What's the concern here? The GPL only requires that I provide a source distribution method for three years (clause 3(b)) We don't consider clauses 3b or 3c to be free. We require distribution under 3a to be possible, in which case the license is free (since the licensee can use 3a and therefore be exempt from the others). I believe this was actually an issue on one occasion, although I don't recall the details. (Obviously, the GPL doesn't require you provide source for three years). -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: BitTorrent Open Source License (Proposed Changes)
On Sat, Jul 30, 2005 at 04:23:51PM -0700, Sean Kellogg wrote: Oh, wow... here my thought was people felt six months wasn't long enough... not too long. I suppose that certainly could be a problem for the manner in which Debian distributes, however, I don't think it is a DFSG problem. It's a fee. Pet a cat, again. Additionally, it's impossible for us to accomplish with the current archive structure, so it's non-distributable even in non-free as far as we're concerned. I think you would be better off changing the language from available to distribute to clear up an uncertainty. I think that the phrasing of complex license clauses should be done by lawyers. We don't need another repeat of the Artistic debacle. -- .''`. ** Debian GNU/Linux ** | Andrew Suffield : :' : http://www.debian.org/ | `. `' | `- -- | signature.asc Description: Digital signature
Re: BitTorrent Open Source License (Proposed Changes)
On Sat, 30 Jul 2005 09:52:12 -0500 Michael Janssen wrote: [...] I have been trying to get the authors of BitTorrent to change their license (the BitTorrent Open Source License) in order to make it suitable for inclusion in Debian. Your efforts are really appreciated. The BitTorrent Open Source License has been discussed before on this list [1, 2]. It is my understanding that the only two sections which cause problems are Section 13 (choice-of-venue) and Section 4.b (keep source online for 6 months). [...] 1. http://lists.debian.org/debian-legal/2005/03/msg00181.html 2. http://lists.debian.org/debian-legal/2005/03/msg00581.html I've just re-read the relevant threads, and I do not agree that the two above mentioned clauses are the only issues. To summarize, the following clauses are problematic (should I misrepresent someone's opinions, I apologize in advance: corrections welcome): 4a * MJ Ray is not happy about it 4b * is a practical problem (MJ Ray) * is a Freeness issue (Josh Triplett) * worries me, as it's restriction on distribution, see DFSG#1 (Francesco Poli) * is anyway a constraint that Debian mirror network does not satisfy (Henning Makholm) 4c * necessity to maintain a LEGAL file is a Freeness issue (Josh Triplett) * is another restriction on distribution, see DFSG#1 (Francesco Poli) 4d * is easy to abuse (MJ Ray) 9b * looks a little broad, but may be irrelevant (MJ Ray) * no clear consensus (Francesco Poli) 13 * choice of venue, which is non-free (Josh Triplett, MJ Ray, Francesco Poli, Henning Makholm) * requirement to waive your right to a jury trial, which is non-free (Francesco Poli, Josh Triplett) Consequently, the issues to be solved are, at least, . one in clause 4b . one in 4c . _two_ in 13 -- :-( This Universe is buggy! Where's the Creator's BTS? ;-) .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpYw9ETD003B.pgp Description: PGP signature
Re: BitTorrent Open Source License (Proposed Changes)
On Sat, 30 Jul 2005 08:55:33 -0700 Sean Kellogg wrote: The Source Code for any version of Licensed Product or Modifications that you distribute must remain available for at least twelve (12) months after the date it initially became available, or at least six (6) months after a subsequent version of said Licensed Product or Modifications has been made available. You are responsible for ensuring that the Source Code version remains available even if the Electronic Distribution Mechanism is maintained by a third party. [...] What's the concern here? The GPL only requires that I provide a source distribution method for three years (clause 3(b))... why can't this license only require source distribution for six months? This change seems unnecessary to pass under the DSFG if the GPL is acceptable. The concern is that the BitTorrent Open Source License compells distributors to keep the source available for at least twelve months (or six, in case they switch to a subsequent version) after they stop distributing the binary. Even if they distribute the source along with the binary! GPLv2 clause 3b is instead an alternative to clause 3a. If you distribute under clause 3a (as Debian does) you have no obligations under clause 3b. Actually clause 3b is a non-free path through the GPL: the GPL would indeed be non-free, if it lacked clause 3a... -- :-( This Universe is buggy! Where's the Creator's BTS? ;-) .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpYols3nQYSu.pgp Description: PGP signature
Re: BitTorrent Open Source License (Proposed Changes)
On Saturday 30 July 2005 04:38 pm, Andrew Suffield wrote: On Sat, Jul 30, 2005 at 08:55:33AM -0700, Sean Kellogg wrote: Hmm... Personally, I'm not convinced that venue clauses are non-free. But if they are willing to drop a venue requirement, that's great for users of Debian! I'm surprised that folks on this list are comfortable with such strong choice-of-law provisions. Again, I don't believe such clauses are non-free, but I believe I've heard the argument made before. (A license has got to be interpreted under laws somewhere... might as well establish the laws prior to the agreement instead of fighting it out in court.) The issue isn't precisely the construct, but rather writing the license in such a way as to massively and unfairly benefit the license holder at the expense of the user - that's hardly in the spirit of a free license. The point of a free license, after all, is to *give* stuff away. Not to extract payment in some form. (To forestall the inevitable trolls: the GPL adds restrictions in order to directly further the cause of giving stuff away, not to benefit the licensor, except insofar as he benefits from the improvements to society as a whole). Choice of law provisions are thusly fine so long as they don't choose laws that strongly favour the license holder. Locations with properly functioning justice systems are generally okay. Crazy tinpot dictatorships probably aren't. Choice of venue clauses are a problem because being forced to travel halfway around the world to defend yourself against an entirely spurious claim is hardly reasonable, and so they are essentially a license to harass the user at whim. Like the pet-a-cat license, only worse. Andrew, to be blunt, you don't know what you are talking about. I can sue you, right now, right here in my home State of Washington for any spurious claim I so deem. I don't need a choice of venue clause to do that. Choice of venue has come into vogue because distributors, manufacturers, what-have-you, are shipping their goods internationally and require the ability to handle suits locally because its easier. However, I am still free to sue that distributor in my own backyard. Now, the distributor can try to have the case dismissed for lack of jurisdiction,but if you are distributing over the internet there really isn't a place on the planet where you don't have substantial contacts. The alternative is to try to have the case moved to a different venue (so called venue shopping) but there is no real proof that venue shopping does much of anything (outside of the Norther District of Texas, reknowned for its quick work with patents). But its already like that... choice-of-venue clauses just keep people from playing the venue shopping game. But I'm going to take offense to your claim in a wholey other matter, if you don't mind, and say what right does Debian-Legal have in deciding my legal decisions as a user? The DFSG set out the kind of software that Debian is to distribute, it is not a tool for D-L to make my legal decisions. If I want to have a choice-of-venue agreement with a software distributor, who is Debian to stand in my way? Is Debian my mommy now, making sure I don't agree to something I shouldn't? And the pet-the-cat-license is a really poor counter argument. Like I said before, the suit is going to happen SOMEWHERE. Stating that somewhere in the license reduces legal uncertainty... which is a good thing. Maybe, if law suits could be started in the ether such a requirement would be onerous... but it can hardly be said to be onerous in a world where things must happen in physical space. The suit has to be somewhere... might as well be in Santa Cruz. As best I can tell, the choice of law clauses here are extremely right-wing but not actually favorable to either party. What the fuck?! I'm sorry, but this is the line that really ticked me off. Where the hell do you get off calling the U.S. Civ Pro rules extremely right-wing? I mean... honestly? What's the concern here? The GPL only requires that I provide a source distribution method for three years (clause 3(b)) We don't consider clauses 3b or 3c to be free. We require distribution under 3a to be possible, in which case the license is free (since the licensee can use 3a and therefore be exempt from the others). I believe this was actually an issue on one occasion, although I don't recall the details. (Obviously, the GPL doesn't require you provide source for three years). Huh? Debian has determined that clauses of the GPL are non-free? That's outrageous. Actually... you're entire e-mail (including the other one) is just really infuriating. Especially the line about complex licenses being done by a lawyer. What exactly do you think I am? I'm pretty sure my legal training gives me the expertice to comment on license language... I sure paid an awful lot of money if it
-legal making decisions for users and the GPL's lesser clauses [Re: BitTorrent Open Source License (Proposed Changes)]
On Sat, 30 Jul 2005, Sean Kellogg wrote: On Saturday 30 July 2005 04:38 pm, Andrew Suffield wrote: On Sat, Jul 30, 2005 at 08:55:33AM -0700, Sean Kellogg wrote: I'm surprised that folks on this list are comfortable with such strong choice-of-law provisions. Choice of law provisions are thusly fine so long as they don't choose laws that strongly favour the license holder. what right does Debian-Legal have in deciding my legal decisions as a user? The DFSG set out the kind of software that Debian is to distribute, it is not a tool for D-L to make my legal decisions. Where exactly has anyone made legal decisions for you as a user? debian-legal is just helping to illuminate the issues underlying these licenses so that Debian can make sound decisions as to which works are included in main and which works we can even distribute at all. Clearly we can't make legal decisions for you; if you're getting that impression, I'd like to dispell it right now. If I want to have a choice-of-venue agreement with a software distributor, who is Debian to stand in my way? How could we stand in a users way anyway? Clearly they're capable of making any legal sort of agreement with a distributor they wish to? We're interested in avoiding Debian and its users getting involved in such legal agreements accidentally, nothing more. What's the concern here? The GPL only requires that I provide a source distribution method for three years (clause 3(b)) We don't consider clauses 3b or 3c to be free. We require distribution under 3a to be possible, in which case the license is free (since the licensee can use 3a and therefore be exempt from the others). Huh? Debian has determined that clauses of the GPL are non-free? Clauses of any license taken in isolation can be non-free. The GPL is not sancrosant in this aspect. Obviously, we don't look at individual clauses alone; we examine them in the context of the license as a whole. If there is a path through the license that is DFSG free, then the license is (generally) DFSG free. Furthermore, in the case of the GPL we don't even need to get into the freeness of those clauses at all, since it is technically infeasible for the mirror network to distribute works under the GPL that we cannot distribute under 3a. [But then, far be it from me to keep ourselves from discussing hypotheticals here.] Seriously man, where do you get off? If at all possible, can we please keep the personal attacks out of our discussions? Such messages reflect badly on all parties involved, including this list. Don Armstrong -- UF: What's your favourite coffee blend? PD: Dark Crude with heavy water. You are understandink? If geiger counter does not click, the coffee, she is just not thick. http://www.donarmstrong.com http://rzlab.ucr.edu signature.asc Description: Digital signature
Re: BitTorrent 4.0.1 - BitTorrent Open Source License
Please post license texts to -legal, not just URLs. This makes them easier to comment on and preserves the relevant information in our list archive. I grabbed the following from http://www.bittorrent.com/license/ on April 2, 2005 @ 0455 EST. BitTorrent Open Source License Version 1.0 This BitTorrent Open Source License (the License) applies to the BitTorrent client and related software products as well as any updates or maintenance releases of that software (BitTorrent Products) that are distributed by BitTorrent, Inc. (Licensor). Any BitTorrent Product licensed pursuant to this License is a Licensed Product. Licensed Product, in its entirety, is protected by U.S. copyright law. This License identifies the terms under which you may use, copy, distribute or modify Licensed Product. Preamble This Preamble is intended to describe, in plain English, the nature and scope of this License. However, this Preamble is not a part of this license. The legal effect of this License is dependent only upon the terms of the License and not this Preamble. This License complies with the Open Source Definition and is derived from the Jabber Open Source License 1.0 (the JOSL), which has been approved by Open Source Initiative. Sections 4(c) and 4(f)(iii) from the JOSL have been dropped. This License provides that: 1. You may use, sell or give away the Licensed Product, alone or as a component of an aggregate software distribution containing programs from several different sources. No royalty or other fee is required. 2. Both Source Code and executable versions of the Licensed Product, including Modifications made by previous Contributors, are available for your use. (The terms Licensed Product, Modifications, Contributors and Source Code are defined in the License.) 3. You are allowed to make Modifications to the Licensed Product, and you can create Derivative Works from it. (The term Derivative Works is defined in the License.) 4. By accepting the Licensed Product under the provisions of this License, you agree that any Modifications you make to the Licensed Product and then distribute are governed by the provisions of this License. In particular, you must make the Source Code of your Modifications available to others. 5. You may use the Licensed Product for any purpose, but the Licensor is not providing you any warranty whatsoever, nor is the Licensor accepting any liability in the event that the Licensed Product doesn't work properly or causes you any injury or damages. 6. If you sublicense the Licensed Product or Derivative Works, you may charge fees for warranty or support, or for accepting indemnity or liability obligations to your customers. You cannot charge for the Source Code. 7. If you assert any patent claims against the Licensor relating to the Licensed Product, or if you breach any terms of the License, your rights to the Licensed Product under this License automatically terminate. You may use this License to distribute your own Derivative Works, in which case the provisions of this License will apply to your Derivative Works just as they do to the original Licensed Product. Alternatively, you may distribute your Derivative Works under any other OSI-approved Open Source license, or under a proprietary license of your choice. If you use any license other than this License, however, you must continue to fulfill the requirements of this License (including the provisions relating to publishing the Source Code) for those portions of your Derivative Works that consist of the Licensed Product, including the files containing Modifications. New versions of this License may be published from time to time. You may choose to continue to use the license terms in this version of the License or those from the new version. However, only the Licensor has the right to change the License terms as they apply to the Licensed Product. This License relies on precise definitions for certain terms. Those terms are defined when they are first used, and the definitions are repeated for your convenience in a Glossary at the end of the License. License Terms 1. Grant of License From Licensor. Licensor hereby grants you a world-wide, royalty-free, non-exclusive license, subject to third party intellectual property claims, to do the following: a. Use, reproduce, modify, display, perform, sublicense and distribute any Modifications created by such Contributor or portions thereof, in both Source Code or as an executable program, either on an unmodified basis or as part of Derivative Works. b. Under claims of patents now or hereafter owned or controlled by Contributor, to make, use, sell, offer for sale, have made, and/or otherwise dispose of Modifications or portions thereof, but solely to the extent that any such claim is necessary to enable you to make, use, sell, offer for sale, have made, and/or otherwise dispose
Re: BitTorrent 4.0.1 - BitTorrent Open Source License
On Sat, 02 Apr 2005 04:55:58 -0500 Anthony DeRobertis wrote: Please post license texts to -legal, not just URLs. This makes them easier to comment on and preserves the relevant information in our list archive. I grabbed the following from http://www.bittorrent.com/license/ on April 2, 2005 @ 0455 EST. BitTorrent Open Source License Version 1.0 [...] A wdiff shows that this is exactly the same license we analyzed last month: see http://lists.debian.org/debian-legal/2005/03/msg00181.html and the discussion that followed. -- :-( This Universe is buggy! Where's the Creator's BTS? ;-) .. Francesco Poli GnuPG Key ID = DD6DFCF4 Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4 pgpzTVXiyrgcv.pgp Description: PGP signature
Re: The BitTorrent Open Source License
Scripsit Francesco Poli [EMAIL PROTECTED] On Wed, 09 Mar 2005 10:21:57 +0100 Josselin Mouette wrote: The Source Code for any version of Licensed Product or Modifications that you distribute must remain available for at least twelve (12) months after the date it initially became available, or at least six (6) months after a subsequent version of said Licensed Product or Modifications has been made available. You are responsible for ensuring that the Source Code version remains available even if the Electronic Distribution Mechanism is maintained by a third party. Mmmmh... This worries me. It smells like a distribution restriction: does it pass DFSG#1? I don't think so. But even if it did, Debian's mirror network itself does not comply with it, so the issue of theoretical freedom is mostly moot. (We don't want to make our mirror operators or ftpmasters legally dependent on the continued operation of snapshot.debian.net for example). whom to contact. If you obtain such knowledge after you make any Modifications available as described in Section 4(b), you shall promptly modify the LEGAL file in all copies you make available thereafter and shall take other steps (such as notifying appropriate mailing lists or newsgroups) reasonably calculated to inform those who received the Licensed Product from you that new knowledge has been obtained. Is this acceptable? A dissident that learns about a legal issue, must inform those to whom he/she distributed the Licensed Product, do I understand it correctly? Well, he must take steps reasonably calculated to inform recipients. It is conceivable that the dissident's own situation can be taken into account when deciding what is reasonable, and in any case the language in the license does not seem to demand that he discloses his identity. You expressly agree that any litigation relating to this license shall be subject to the jurisdiction of the Federal Courts of the Northern District of California or the Superior Court of the County of Santa Clara, California (as appropriate), with venue lying in Santa Clara County, California, with the losing party responsible for costs including, without limitation, court costs and reasonable attorneys fees and expenses. Choice of venue, which is non-free. I agree. Though the usual badness of venue choice is somewhat mitigated by the promise to pay the user's legal costs if they sue him and lose. However, who says that the author has money to pay with? Any law or regulation that provides that the language of a contract shall be construed against the drafter shall not apply to this License. It's a kind of magic, I suppose! ;-) Wow, I want one of those! -- Henning Makholm It was intended to compile from some approximation to the M-notation, but the M-notation was never fully defined, because representing LISP functions by LISP lists became the dominant programming language when the interpreter later became available. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: The BitTorrent Open Source License
MJ Ray wrote: Josselin Mouette [EMAIL PROTECTED] wrote: * The requirement to maintain a LEGAL file. I don't think this one is really a problem; it's similar to the GPL saying you must mark your modifications as such. This LEGAL file doesn't seem to say that we have to leave the contents we got untouched, does it? Then it seems OK. That's not the issue: the main issue is that If you obtain such knowledge after you make any Modifications available as described in Section 4(b), you shall promptly modify the LEGAL file in all copies you make available thereafter and shall take other steps (such as notifying appropriate mailing lists or newsgroups) reasonably calculated to inform those who received the Licensed Product from you that new knowledge has been obtained. (It's also obnoxious that it specifies the exact mechanism by which you must include these notices, right down to the filename, rather than just speaking in general about clear and conspicuous notices or similar; I'm not sure if that's non-free or not though.) - Josh Triplett signature.asc Description: OpenPGP digital signature
Re: The BitTorrent Open Source License
Francesco Poli wrote: On Wed, 09 Mar 2005 10:21:57 +0100 Josselin Mouette wrote: [...] You and Licensor expressly waive any rights to a jury trial in any litigation concerning Licensed Product or this License. Is this a bad thing? I mean: does it do any harm? This term came up during previous discussions of the IBM Public License, and the clear consensus was that forcing the licensor to waive their right to a jury trial is definitely non-free. Thanks for catching that one. - Josh Triplett signature.asc Description: OpenPGP digital signature
Re: The BitTorrent Open Source License
Josselin Mouette wrote: BitTorrent 4.0 is distributed under a new license of its own. Section 6 of the preamble states: 6. If you sublicense the Licensed Product or Derivative Works, you may charge fees for warranty or support, or for accepting indemnity or liability obligations to your customers. You cannot charge for the Source Code. This looks non-free, but it doesn't seem to be backed by the actual terms of the license. There is also an anti-patent clause, but it only applies to the licensed software itself. The patent clause does indeed look fine, and is the ideal form of such a clause: it only activates if you sue saying the software itself violates a patent, and it only terminates the rights granted by the people you sue. As you said, the clause above isn't actually reflected in the license text, and the Preamble states that this Preamble is not a part of this license. The legal effect of this License is dependent only upon the terms of the License and not this Preamble., so while it is confusing, it isn't relevant to Freeness. The issues I see related to Freeness are: * The requirement to keep source code available for 12 months, even if you are no longer distributing the binary, and even if you distributed the source code along with the binary. * The requirement to maintain a LEGAL file. * The choice of venue clause. I also have a suggestion for how to deal with these issues. Given that the license change is recent (two days ago), why don't we just point out to upstream that the license is not GPL-compatible, which would pose a problem for anyone building GPLed frontends to BitTorrent or other software that builds on BitTorrent (such software already exists), and request that he dual-license BitTorrent under this license and the GPL? We could point out that Mozilla, previously under the MPL, decided to dual-license (and later tri-license) for the same reason. This will prevent us from having to go into detail on these license issues, which are harder to explain (and harder to convince people that they aren't just Debian ranting, which seems to be a far-too-common opinion :( ). - Josh Triplett signature.asc Description: OpenPGP digital signature
Re: The BitTorrent Open Source License
Le mercredi 09 mars 2005 10:01 -0800, Josh Triplett a crit : The issues I see related to Freeness are: * The requirement to keep source code available for 12 months, even if you are no longer distributing the binary, and even if you distributed the source code along with the binary. I think this is only poor wording. The code must available, but the previous sentence says it can be either on the same media or on the internet. With a strict interpretation, that means it must be available for 12 months on the internet, or, if on distributed on e.g. a disk, it must not self-destroy during this period. * The requirement to maintain a LEGAL file. I don't think this one is really a problem; it's similar to the GPL saying you must mark your modifications as such. * The choice of venue clause. Right, this one is much more obnoxious, and it is also probably the one the author is the less susceptible to fix. I also have a suggestion for how to deal with these issues. Given that the license change is recent (two days ago), why don't we just point out to upstream that the license is not GPL-compatible, which would pose a problem for anyone building GPLed frontends to BitTorrent or other software that builds on BitTorrent (such software already exists), and request that he dual-license BitTorrent under this license and the GPL? We could point out that Mozilla, previously under the MPL, decided to dual-license (and later tri-license) for the same reason. This will prevent us from having to go into detail on these license issues, which are harder to explain (and harder to convince people that they aren't just Debian ranting, which seems to be a far-too-common opinion :( ). Sounds like a good idea. -- .''`. Josselin Mouette/\./\ : :' : [EMAIL PROTECTED] `. `'[EMAIL PROTECTED] `- Debian GNU/Linux -- The power of freedom signature.asc Description: Ceci est une partie de message =?ISO-8859-1?Q?num=E9riquement?= =?ISO-8859-1?Q?_sign=E9e?=
Re: The BitTorrent Open Source License
Josselin Mouette [EMAIL PROTECTED] wrote: * The requirement to maintain a LEGAL file. I don't think this one is really a problem; it's similar to the GPL saying you must mark your modifications as such. This LEGAL file doesn't seem to say that we have to leave the contents we got untouched, does it? Then it seems OK. -- MJR/slef My Opinion Only: see http://people.debian.org/~mjr/ Subscribed to this list. No need to Cc, thanks. -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
