Re: License Committee report
On 2004.02.17 17:43 Zooko O'Whielacronx wrote: [snip] So if I understand correctly, the Simple Permissive License and the (ideally edited) Fair License both pass the litmus test of OSD. In addition to approving licenses which meet the OSD, the OSI also prefers to slow the proliferation of substantially similar licenses, and is therefore loathe to approve the Simple Permissive License. Finally, it seems that brevity in a license is not valued, or else that the value of brevity is outside the scope of the approval process. With all due respect to opensource.org and the long volunteer hours they seem to be putting in, I would like to point out that their role seems to be that of a licensing approval body with some well defined criteria. They may be in flux and vague to some non-licensing types, but they are there, and those criteria are not easy to create. And as such, their criteria and their general priorities are clearly stated. As with any standards type organization it's important to recognize that opensource.org people are working together to approve licenses they feel meet certain criteria and goals. Such direction and backbone is rare to find in the Open Source world. Sure, I argue quite a bit, but it's just debate. I also expect that by definition, a licensing approval body like opensource.org _must_ have a record of denials in order to demonstrate their goals (which I might add are for the better). My hat's off to them for sticking to their guns. They didn't even have my submission on the list but that's O.K., because if it's not meant for their purposes then at least they have said so. They didn't even list my license as being under consideration, which is O.K. When I submitted it I was told that there currently is a problem with the number of licenses being submitted in the first place. One thing I don't understand is if the Fair License would satisfy the goals of the Simple Permissive License while being even shorter. Personally, I'm a bit uncertain about the Fair License, perhaps because I have no legal training and I am already familiar with the MIT (-original) license. Keeping redundancy out of the mix is important. Since opensource.org has some trained legal people on their staff, I would suspect that if they think something is redundant for their criteria, then they should say so. I was surprised at the reaction to the NASA license, but I do hope that one provides some stimulus for opensource.org to evaluate its criteria. Open Source communities, especially governments using open source might learn a thing or two. This licensing thing is complicated ;-) Richard Schilling (who hopes he doesn't confuse people when he makes an argument on a variety of sides of a debate) -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On 2004.02.12 20:42 Ian Lance Taylor wrote: Richard Schilling [EMAIL PROTECTED] writes: Such provisions are not allowed in an open source license. Reporting requirements are viewed as unreasonable limitations on the rights of licensees to do anything they want internally with open source Biggest problem of all here - who in all of creation has the authority on blessing open source licenses? Huh? The point of this mailing list is to advise OSI on blessing open source licenses. You don't have to believe that OSI's blessing has any value. But there isn't much point to joining this mailing list if you reject the whole concept of OSI blessing a license. I'm just saying that a stance that NASA, a US government agency with deep pockets, should remove imdenification wording is a haneous idea. And in general bashing the license on non-licensing issues doesn't do any good. It actually hurts open source license development. It's just my opinion. The OSI can do what it wants. My preference is to see all discussions the OSI endorses regarding licenses be done in the context of legitimate legal analysis (which is done by lawyers) and well trained laypeople. It's one thing if someone asks why a part of a license is important, and then tries to apply the answer to some licensing goal. It's quite another if we just blast away at a new license on uninformed and misguided knowledge. I maintain that an open source license has certain characteristics and achieves some well defined goals - the primary one being quick, open distribution or source code and documentation to the end user without charging a license fee. It is entirely unappropriate to specify what belongs and doesn't belong in an open source license. Either the license achieves it's own goals or it doesn't. OSI will only bless licenses that meet the Open Source Definition: http://opensource.org/docs/definition.php Absoutely. No argument there. They should. The NASA license, however, presents a unique opportunity for opensource.org. The organization can look at the language and concerns the license addresses and use that as an acid test to see if their criteria needs revising (a good standards body does that - and I have the impression opensource.org does). opensource.org has several licenses written by industry leaders like Sun, IBM, MIT, and others who have a lot of experience writing great open source licenses. The NASA license is a wonderful opportunity to add a US government agency's license to that list. When opensource.org puts all of them side by side and study what makes them unique, but still qualify as open source, then opensource.org has advanced the state of open source licensing. Lawrence is correctly saying that if the NASA license requires tracking of released software, that license does not conform to the OSD, and therefore the OSI should not bless it. I believe that is a misguided concept in open source licensing that some hold to. Tracking the use of a product does not make a license non-open source. Open Source licensing deals with accessibility and cost, but tracking, per se, is not even relevant to that characteristic. In fact, tracking the uses of open source is a *key* marketing tool and the only way we can judge if an investment of time into open source is paying off, is it not? That would not mean that the license is a bad license. It would merely mean that software released under the license is not OSI Certified Open Source Software. right. See, that's objective - what you just said. I got the sense from the original poster overtones of big bad big brother. Too much work goes into these licenses to take the conversation in that direction - I felt the need to call him on it, and I hope I called everyone making similar arguments on that point. Richard Ian -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Maybe it's just me, but I keep getting back to open source software licenses as a means to efficiently distribute software and allow people ready access to the knowledge it represents, and not so much as a mechanism to try a get license-savvy organizations to let their guard down. On 2004.02.12 21:03 Lawrence E. Rosen wrote: I'll reply off-list. I'm not ignorant about licenses or law. I'm an attorney. I'm general counsel of Open Source Initiative. I have written a book about open source licensing that will be published in a few months. And so I was not responding to NASA and its lawyers out of ignorance or as an armchair lawyer. They (and you) don't have to agree with me, but please respect my right to express myself. I'm not just spouting hot air. I didn't see a many points in your original posting that served any purpose other than to call on the carpet the motives and approach of the authors. If you are a lawyer, of all people, I would expect to see more constructive discussion about the license itself and how it can be made to comply with opensource.org's requirements. You should know, with all due respect to you and your profession, that providing specific reasons/alternatives, and avoiding taunting questions, is appropriate in helping NASA get their license to meet opensource.org requirements. If you're acting as council, please council on what they can do, not what they should have done. We would all learn from that approach. And, yes, I'm offended at the tone of the response NASA got to their posting. They've done more for open source work than many other organizations would even dream. They invented Beowulf cluters, for heaven's sake. Did I misread your response? Perhaps, but read it as such I did. I certainly respect what you do, but I also expect to see more respect directed to submitters of new licenses. Now, with respect to the INDEMIFY clause (section 8), which says : B. Waiver and Indemnity: RECIPIENT AGREES TO WAIVE ANY AND ALL CLAIMS AGAINST THE UNITED STATES GOVERNMENT, ITS CONTRACTORS AND SUBCONTRACTORS, AS WELL AS ANY PRIOR RECIPIENT AND SHALL INDEMNIFY AND HOLD HARMLESS THE UNITED STATES GOVERNMENT, ITS CONTRACTORS AND SUBCONTRACTORS, AS WELL AS ANY PRIOR RECIPIENT FOR ANY LIABILITIES, DEMANDS, DAMAGES, EXPENSES OR LOSSES THAT MAY ARISE FROM RECIPIENT'S USE OF THE SUBJECT SOFTWARE, INCLUDING ANY DAMAGES FROM PRODUCTS BASED ON, OR RESULTING FROM, THE USE THEREOF. RECIPIENT'S SOLE REMEDY FOR ANY SUCH MATTER SHALL BE THE IMMEDIATE, UNILATERAL TERMINATION OF THIS AGREEMENT. There is nothing in opensource.org's criteria that says the licensing party shall refrain from waivers and indeminification. NASA's policies require specific wording in section 8, and if that wording is not significantly different than what has been accepted before, then I don't see a problem. It's an administrative detail, really. I would like to see specific argument as to why, in NASA's case this wording does not need to apply to their sub-contractors. To me this is more appropriate to NASA's sub-contracting needs than what's in the other licenses. They know what's best for them, so let them demonstrate that. And if opensource.org throws out a license on this issue, I think it would be wise for opensource.org to review its criteria. I would suggest separating (in opensource.org's criteria) certain areas when evaluating new licenses. For example, develop clear criteria for the following and specify which items make/break an open source designation: distribution, re-distribution, deriverative works, copyright, waivers, deriverative works, related services, quality controls. opensource.org says what a license should have, but the website doesn't say enough about what the authors *can* do with their license. Specifically, I maintain that copyright and waivers are *not* determinants of an open source license, and I think it's improtant (if that's opensource.org criteria as well) to clearly state that. I would also suggest that as long as distribution is met, regardless of it's means, with or without re-distribution, the license be considered open source. From the end user's perspective getting a software product from one place -vs- 1,000 places and having the software tracked are not determinants of an open source license, per se. They get freedom of availability, use, modification and a means to submit changes. And that's what defines a collaborative project. All else is optional. Availability of the code and documentation, and the right to modify for personal use seem to me to be the baseline criteria to any open source license. Richard -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On 2004.02.13 07:38 Ian Lance Taylor wrote: [snip] I believe that is a misguided concept in open source licensing that some hold to. Tracking the use of a product does not make a license non-open source. Open Source licensing deals with accessibility and cost, but tracking, per se, is not even relevant to that characteristic. In fact, tracking the uses of open source is a *key* marketing tool and the only way we can judge if an investment of time into open source is paying off, is it not? First let me say that I understand that NASA's proposed license doesn't require tracking, it merely encourages it. I, and others, think that a tracking requirement would not be appropriate in an open source license. 1) Tracking presumably requires reporting back to some organization. What happens if that organization disappears? Does it then become impossible to distribute the code? If it does, the code would clearly no longer be open source. Detailed tracking is done anyway through web logs. And, companies dissappear all the time - no big deal there. It's their data so they can discard it if they like. I would rather know that more details about the product's use are being tracked than not. When a company tracks the usage of their product they have an easier time gaining support from onlookers, which is good for the product. I want to write to my congress people and make a case for NASA spending a lot of money on open source development. It's more compelling to do that if I can point out where the product is being used. Perhaps you're nervous because of the hype that licensing lawsuits get in the press? The rest of the NASA license guarantees free, unhampered use so tracking does not present a discrimination issue. Tracking information is meant to be held private, so it wouldn't be appropriate to release that inforamtion to the public anyway. Tracking information is absoutely key to a developer's ability to guage the success of their product. For example, if you have reliable numbers to compare your downloads with, say sales figures from a comperable well-known product (e.g. MS Office), then you can promote that product more effectively. 2) It is generally considered to be desirable to permit open source software to be used anonymously, such as by a dissident under your least favorite form of government. Arguably preventing the possibility of anonymous use violates OSD #5. Once a product under GNU is initially downloaded, the person can distribute it anonymously. OSD #5 simply states non-descrimination - which means that you won't restrict the availability of your product to a particular group/caste/class/industry, etc... I maintain that as long as non-restricted access is granted non-descrimination is complied with. Besides, non-descrimination typically is not meant to ensure that you cannot know where your product is used. 3) While free software is not identical to open source software, they are generally congruous. The FSF specifically forbids tracking: http://www.fsf.org/philosophy/free-sw.html: I think what I was pointing out before was that the standards for open source definitions are arbitrary and varied. I would like to stick to opensource.org's criteria on this list. You should also have the freedom to make modifications and use them privately in your own work or play, without even mentioning that they exist. If you do publish your changes, you should not be required to notify anyone in particular, or in any particular way. GNU specifically states that changes will be submitted back to the authors. That requirement, if enforced, provides much more stringent tracking than what NASA proposes. But, I also point out that this requirement in GNU is not enforced at all, generally, making that provision useless, and makes the language in the GNU license an empty requirement on its face. For the GNU license it means the requirement might not be enforced by a judge even though the requirements are there. Why put such a requirement in the license if it's not going to be enforced? This is a key difference between NASA's license and the existing ones - enforcement of the requirement. If NASA requires registration, then fine, but I expect NASA to make an effort to actually enforce the requirement. And, the efforts to do that are clearly stated in the license itself, making the license more consistent between intent and implementation than many other licenses (on that point). Richard Ian -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Inappropriate postings from non-lawyers
On 2004.02.13 08:35 Alex Rousskov wrote: On Thu, 12 Feb 2004, Richard Schilling wrote: I post my response because so many times on this list people try to play armchair lawyer and pick apart a license. It's not appropriate Richard, Could you please point me to this list charter or guidelines? You seem to imply that only lawyers can discuss posted licenses on this list. If what you seem to imply is true, I personally would stop discussing others' licenses immediately! I am not a lawyer. I contribute from a license _user_ point of view. I hope that OSI wants to accommodate open source users at least as much as open source lawyers and, hence, would benefit from users point of view being represented. I simply expressed an opinion. One could assume that because I don't write the opensource.org charters. I'm simply laying out the judgement call that there's too much loose banter on this list. I would like to see the opensource.org criteria clarified on the web pages. It would help clear up some confusion. I suggested a few changes in an earlier post. I too, want to see opensource.org accomodate the general public . . . but it would be nice to see an effort by the list participants to keep the discussion related to legal licensing issues and not moral implications for the free world. Look, folks the entire purpose of a license of any kind is to have something to present to a judge in case something goes wrong, and to clarify what rights are transferred to the end user. The true test of a license (for open source work in a business) is what happens in court and in business negotiations. If us non-lawyers defer to lawyers and listen more we may have more lawyers providing constructive input. Obviously, people are arguing that the GPL is invalid and providing some detailed analysis. I hope opensource.org pays attention to that and gets self-critical about their criteria really quick. At present, they are endorsing licenses that don't mean anything in front of a judge. They're nice public statements and rhetoric, but not much else at times. Am I critical and judgemental? yes, I know. . . Will I start my own discussion list and take my opinions there? Sure, when I have time. Richard If there is no list charter or guidelines, or if they do not share your point of view, then please adjust your appropriateness criteria accordingly. You are, of course, welcome to create a moderated lawyers-only list and convince OSI to use that instead of or in addition to this list. Lawyers most likely write NASA licenses and that's something to respect. Whether something is worth respect is not determined by whether it was made by a lawyer, IMHO. YMMV. Alex. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
without charging a license fee. It is entirely unappropriate to specify what belongs and doesn't belong in an open source license. Either the license achieves it's own goals or it doesn't. The NASA license strives to deal with legal issues, not moral Open Source will save your grandmother and the free world issues. The beauty is, the NASA license may do that someday :-) software (e.g., make copies, derivative works, etc.). On the other hand, because of reciprocity (see my further comment below) you'll be able to see improvements to NASA software that are distributed by others, and benefit from them. That will be measurable. I don't want some hack trying to improve NASA software. There's no benefit in having untrained engineers who don't understand NASA trying to improve NASA products. It's like having the boy scouts try to improve the Mars rover. NASA owens the bragging rights on their software, and I think it's important to keep it that way. iv. Federeal Statutes and NASA regulations requires a prohibition in NASA contracts against representations by others that may be deemed to be an endorsement by NASA. See 3.E. Various licenses do that. See, for example, OSL sections 4 [Exclusions from License Grant] and 6 [Attribution Rights]. Obviously, NASA's well paid lawyers disagree with what's there. My money's on the NASA lawyers. v. Because it is important that each of the aforementioned clauses be a part of each open source agreement relating to NASA released software, the proposed agreement must mandate that distribution and redistribution of the software be done under the aegis of NOSA (mandatory domination similar to GPL). See 3.A. I call this feature reciprocity. Lots of licenses do that, including the you and anyone else with a similar opinion are most likely not trained to call that anything. *I'm* not even trained to call it anything and I've spent a lot of time studying law. I won't even try. Spend a few years doing nothing but government licensing and arguing cases then try labeling it. GPL, MPL and CPL; similarly, the OSL contains a reciprocity condition that requires any licensee who distributes derivative works of OSL-licensed software to do so under the OSL. You don't need to write a new license to obtain that license feature. I'm sorry if I've misunderstood your license by relying on your summary of it rather than the license itself. I intend to read through the license itself soon, but I wanted to get these general questions on the table first. I think you not only misunderstood the license, but you may only have succeeded in bringing out the armchair lawyers in force to debate these misguided points. It just doesn't do anyone any good. Richard Schilling -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The NASA license may be unconstitutional? Re: For Approval: NASA Open Source Agreement Version 1.1
On 2004.02.12 20:05 Andy Tai wrote: The NASA license as proposed may be against the law in many locations. For example, in Taiwan the Constitution of the Republic of China is the supreme law of the land. The NASA license demands that it is governed by US Federal Law, which conflicts with the ROC's sovereignty and copyright laws and this requirement is unconstitutional. These are serious issuees with respect to international licensing, but I doubt the NASA license is unconsitiutional in the US. Perhaps in other countries, but most likely not here :-) Licenses always must be specific to the country in which they are used for them to be effective. The World Trade Organization provides a common framework for licensing and Intellectual Property standards. Since China is a member of the WTO it should help address these types of international differences. Richard Schilling The same probably is true for most locations outside the US. --- Bryan Geurts [EMAIL PROTECTED] wrote: This Email was prepared in satisfaction of OSI Certification Process Step ii. Federal Statute mandates that the U.S. Government can only be held subject to United States federal law. See 5.C. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
