Re: Procedure for using an approved license
Rod Dixon, J.D., LL.M. scripsit: There is also the questionable premise that a software license may lawfully extinguish the floor and ceiling of derivative works...i.e. under copyright law some modifications need no permission from the copyright holder because they are fair uses, other modifications need no permission from the copyright holder because they are transformative and somewhere between those two extremes you'll find derivative works. I suppose you mean infringing (absent a license) derivative works. This terminology is very clumsy, but at least it gets fair use etc. into the right part of the picture: defenses against infringement. But in any event, the statutory definition of derivative work employs the term modifications as primitive: A derivative work is a work based upon on or more preexisting works, such as a translation, [other examples omitted] or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other *modifications*, which as a whole, represent an original work of authorship, is a derivative work. [Emphasis added.] a software license uses the term modification to tread on the shoulders of transformative works or to control what is or may be viewed as fair uses, In these cases, the question is not whether the unauthorized-by-the-license derivative work is really a derivative work; it is whether it infringes or not. If it is fair use, including transformative use, it does not infringe. IANAL, TINLA, obviously. -- All Gaul is divided into three parts: the part John Cowan that cooks with lard and goose fat, the partwww.ccil.org/~cowan that cooks with olive oil, and the part thatwww.reutershealth.com cooks with butter. -- David Chessler[EMAIL PROTECTED] -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Procedure for using an approved license
From: Rod Dixon [mailto:rod;cyberspaces.org] there is a lot being said here. To clarify one point at a time, the use of derivative work should be in the copyright law sense, not an unusual meaning gleamed from a license...whether it is the MPL or any other license. In this respect, the issue is relatively simple; namely, did the copyright holder grant the right to create the work and did he or she grant the right to distribute the work. Thanks, Rod, for your clarification. We attorneys have a responsibility to our community to be precise in our definitions, at least with reference to terms of art such as derivative work. Mitchell is correct in suggesting that some licensors may want the reciprocity obligation (to publish source code) to apply to more than -- or to less than -- derivative works. The GPL authors, for example, seem to want to include works that link together in some ways; they are entitled to do so as long as they define their terms clearly and so long as their definitions are consistent with the copyright law that governs their license. The MPL, by contrast, wants to limit the reciprocity obligation on a file-by-file basis, also a legitimate objective for a license as long as the term file is clearly defined. In drafting the OSL, I tried to steer clear of terminology that was technology-specific and to use terms of art from copyright law wherever possible. I did not want to clutter the concept of derivative works with terms such as larger work or work based on the work or file. When I wanted a specific software concept, however, such as Source Code or External Deployment, to inform the application of the copyright law to this license, I tried to define it clearly. Perhaps Mitchell, in the next version of the MPL, will be able to define more clearly what she intends to encompass by the derivative work reciprocity provision in that license. That will help projects to decide which license to adopt for their software. Perhaps, too, we should work together to define that term precisely for our needs and use an agreed definition in both the OSL and the MPL? As for the current version of the OSL, I thought it best to let the courts clear up the concept of derivative works in the edge cases, since they will anyway if someone litigates this in an important case. I have written an article explaining my own views of how that will turn out; it will appear in my Linux Journal column in a few months. /Larry -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Procedure for using an approved license
We're not connecting here. My point is that derivative work as used in the copyright statute is an unclear term. And that the definition of derivative work varies among jurisdictions. And that the MPL does not, as Larry suggests, use a derivative work standard for precisely that reason. I have limited connectivey for the next few days, so may drop in and out of this discussion. Mitchell --- Lawrence E. Rosen [EMAIL PROTECTED] wrote: From: Rod Dixon [mailto:rod;cyberspaces.org] there is a lot being said here. To clarify one point at a time, the use of derivative work should be in the copyright law sense, not an unusual meaning gleamed from a license...whether it is the MPL or any other license. In this respect, the issue is relatively simple; namely, did the copyright holder grant the right to create the work and did he or she grant the right to distribute the work. Thanks, Rod, for your clarification. We attorneys have a responsibility to our community to be precise in our definitions, at least with reference to terms of art such as derivative work. Mitchell is correct in suggesting that some licensors may want the reciprocity obligation (to publish source code) to apply to more than -- or to less than -- derivative works. The GPL authors, for example, seem to want to include works that link together in some ways; they are entitled to do so as long as they define their terms clearly and so long as their definitions are consistent with the copyright law that governs their license. The MPL, by contrast, wants to limit the reciprocity obligation on a file-by-file basis, also a legitimate objective for a license as long as the term file is clearly defined. In drafting the OSL, I tried to steer clear of terminology that was technology-specific and to use terms of art from copyright law wherever possible. I did not want to clutter the concept of derivative works with terms such as larger work or work based on the work or file. When I wanted a specific software concept, however, such as Source Code or External Deployment, to inform the application of the copyright law to this license, I tried to define it clearly. Perhaps Mitchell, in the next version of the MPL, will be able to define more clearly what she intends to encompass by the derivative work reciprocity provision in that license. That will help projects to decide which license to adopt for their software. Perhaps, too, we should work together to define that term precisely for our needs and use an agreed definition in both the OSL and the MPL? As for the current version of the OSL, I thought it best to let the courts clear up the concept of derivative works in the edge cases, since they will anyway if someone litigates this in an important case. I have written an article explaining my own views of how that will turn out; it will appear in my Linux Journal column in a few months. /Larry -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 = __ Do you Yahoo!? Y! Web Hosting - Let the expert host your web site http://webhosting.yahoo.com/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Procedure for using an approved license
On review, I think the Open Software License is more like the GPL in scope than it is the MPL. Larry notes that the OSL applies to derivative works rather than files. This means that all the complexities of defining a derivative work are reflected in the license. It's not that easy to know precisely what is and isn't a derivative work. One would think it would be, but the case law is complex. Last I researched this, the exact tests used to determine whether something is a derivative work varied by judicial circuit in this U.S. Also, I'm not sure if a derivative work under U.S. law is exactly the same as under European law, or of the mechanisms by which international treaty deals with this, if at all. Even more importantly, many entities do not want derivative works to be governed by the GPL, MPL or OSL. Assume someone takes JavaScript and incorporates it into a product. That product may well be a derivative work. Yet the creator of that work may not want the entire work to be governed by the OSL, MPL or GPL. In fact, there are a ton of projects and products that use JavaScript and I'm sure many of them have no intention of converting the entire project or product to open source. (Maybe we'd like them to, but the MPL is explicitly designed to allow authors to decide if and when their original work moves into the open source/free software world.) So I suspect there are many developers who are content with the MPL but would not be with the OSL. In general, the relative simplicity of the OSL is appealing. But some of the additional topics in the MPL seem important to me. For example, Sections 3.6 and 3.7 make it clear once the source availability requirements for MPL code have been meet, projects and companies are welcome to combine MPL code with other code, and to distribute that combined work under an End User License Agreement that differs from the MPL. I'm not sure what the OSL envisions here, and it feels closer to the GPL model. The explicit language in the MPL makes MPL code much easier for many projects to use. The OSL is indeed reinforcing my view that the MPL should be revised again and simplified. I don't see the OSL as taking its place. Larry, can you explain the thinking behind the warranty in the OSL? I'll be traveling with probably limited access for the next week, so may not be able to respond right away. Mitchell Mitchell Baker wrote: I had never really thought of the Open Software License as a practical alternative for the MPL. I'll certainly reread it carefully with that in mind. The MPL's file based system was used so that people working with the code, particularly programmers, could automatically and accurately understand the scope of the license. Programmers know a file when they see one. They don't necessarily know a derivative work when they see one. And neither do lawyers. Last time I did serious research into this topic, the determination of derivative work and copyright infringement varied according to which part of the country (and which judicial Circuit) one referred to. Sounds wild, but different Federal Circuits often use different tests. So we opted for something firmly based in the programming world. Mitchell Lawrence E. Rosen wrote: James, I agree with the problems you've noted with MPL 1.1. For most practical purposes, the Open Software License (OSL) accomplishes most of what MPL 1.1 does -- without those problems you mentioned. The major difference is that MPL 1.1 applies on a file-by-file basis and the OSL deals consistently with derivative works, but I never understood the importance of a file-by-file license anyway in most typical software. /Larry Rosen -Original Message- From: James E. Harrell, Jr. [mailto:jharrell;copernicusllc.com] Sent: Sunday, October 06, 2002 7:52 PM To: David Johnson; Dave Nelson; OpenSource Licensing Discussion Group Subject: RE: Procedure for using an approved license Open Source friends, I've been looking at MPL 1.1 as well. One of the reasons I would replace the word Netscape with my own company name is #6.2: 6.2. Effect of New Versions. Once Covered Code has been published under a particular version of the License, You may always continue to use it under the terms of that version. You may also choose to use such Covered Code under the terms of any subsequent version of the License published by Netscape. No one other than Netscape has the right to modify the terms applicable to Covered Code created under this License. The last sentence is a difficult one for me- why would I ever want *Netscape* to be able to supplant this license with what they deem to be another better version? That version might say All covered code automatically becomes the sole property of Netscape corporation... Not suggesting that they would, but... Further, if I take this license to legal review and finally do find
Re: Procedure for using an approved license
? The legal review is then pointless (or at least has to be re-done); but worse, if I don't like the terms of MPL 1.2, now I have a product that is licensed under terms that I don't find acceptable- and I have now way to keep you from using it under the terms of MPL 1.2. Now, give that MPL 1.1 is probably one of the most suitable licenses for commercial Open Source products... but there are some minor things that might not be acceptable for our lawyers... does that mean it's time to try another one specifically geared to Open Source commercial products that solves the templating problem (and maybe some others?) -- OR -- Perhaps someone can really address the question that Dave asked- or maybe really my re-phrase of the original question: Is this *a* correct procedure? (I change the to a) Given this procedure, is this license automatically 'OSI certified'? *NOTE* MPL 1.2 is solely used in conjecture for the purposes of this email! Thanks for help understanding this too! James -Original Message- From: David Johnson [mailto:[EMAIL PROTECTED]] Sent: Sunday, October 06, 2002 10:03 PM To: Dave Nelson; OpenSource Licensing Discussion Group Subject: Re: Procedure for using an approved license On Sunday 06 October 2002 02:10 pm, Dave Nelson wrote: I wish to use the Mozilla 1.1 license, but don't know the exact procedures here. I copied the Mozilla 1.1 license from your site, replace 'Netscape' with my company, and 'Mozilla' with my product, and Netscape trademarks with mine. No other changes were made. Then added a line under the title stating: You did too much unnecessary work. The MPL is sufficiently templatized that you don't need to do all this. You only need to change the words Mozilla and Netscape if you make a derivative license of the MPL. This does not seem to be your intent. Far simpler: Just fill in EXHIBIT A with your name, software, etc., and you are done! You *do* want to keep the name Mozilla Public License, because people already know what it is and what rights it confers. Changing the name will only cause confusion. -- David Johnson ___ http://www.usermode.org pgp public key on website -- 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 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Procedure for using an approved license
'? *NOTE* MPL 1.2 is solely used in conjecture for the purposes of this email! Thanks for help understanding this too! James -Original Message- From: David Johnson [mailto:[EMAIL PROTECTED]] Sent: Sunday, October 06, 2002 10:03 PM To: Dave Nelson; OpenSource Licensing Discussion Group Subject: Re: Procedure for using an approved license On Sunday 06 October 2002 02:10 pm, Dave Nelson wrote: I wish to use the Mozilla 1.1 license, but don't know the exact procedures here. I copied the Mozilla 1.1 license from your site, replace 'Netscape' with my company, and 'Mozilla' with my product, and Netscape trademarks with mine. No other changes were made. Then added a line under the title stating: You did too much unnecessary work. The MPL is sufficiently templatized that you don't need to do all this. You only need to change the words Mozilla and Netscape if you make a derivative license of the MPL. This does not seem to be your intent. Far simpler: Just fill in EXHIBIT A with your name, software, etc., and you are done! You *do* want to keep the name Mozilla Public License, because people already know what it is and what rights it confers. Changing the name will only cause confusion. -- David Johnson ___ http://www.usermode.org pgp public key on website -- 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 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Procedure for using an approved license
I had never really thought of the Open Software License as a practical alternative for the MPL. I'll certainly reread it carefully with that in mind. The MPL's file based system was used so that people working with the code, particularly programmers, could automatically and accurately understand the scope of the license. Programmers know a file when they see one. They don't necessarily know a derivative work when they see one. And neither do lawyers. Last time I did serious research into this topic, the determination of derivative work and copyright infringement varied according to which part of the country (and which judicial Circuit) one referred to. Sounds wild, but different Federal Circuits often use different tests. So we opted for something firmly based in the programming world. Mitchell Lawrence E. Rosen wrote: James, I agree with the problems you've noted with MPL 1.1. For most practical purposes, the Open Software License (OSL) accomplishes most of what MPL 1.1 does -- without those problems you mentioned. The major difference is that MPL 1.1 applies on a file-by-file basis and the OSL deals consistently with derivative works, but I never understood the importance of a file-by-file license anyway in most typical software. /Larry Rosen -Original Message- From: James E. Harrell, Jr. [mailto:[EMAIL PROTECTED]] Sent: Sunday, October 06, 2002 7:52 PM To: David Johnson; Dave Nelson; OpenSource Licensing Discussion Group Subject: RE: Procedure for using an approved license Open Source friends, I've been looking at MPL 1.1 as well. One of the reasons I would replace the word Netscape with my own company name is #6.2: 6.2. Effect of New Versions. Once Covered Code has been published under a particular version of the License, You may always continue to use it under the terms of that version. You may also choose to use such Covered Code under the terms of any subsequent version of the License published by Netscape. No one other than Netscape has the right to modify the terms applicable to Covered Code created under this License. The last sentence is a difficult one for me- why would I ever want *Netscape* to be able to supplant this license with what they deem to be another better version? That version might say All covered code automatically becomes the sole property of Netscape corporation... Not suggesting that they would, but... Further, if I take this license to legal review and finally do find it to be acceptable for my product, what happens when MPL 1.2 comes out? The legal review is then pointless (or at least has to be re-done); but worse, if I don't like the terms of MPL 1.2, now I have a product that is licensed under terms that I don't find acceptable- and I have now way to keep you from using it under the terms of MPL 1.2. Now, give that MPL 1.1 is probably one of the most suitable licenses for commercial Open Source products... but there are some minor things that might not be acceptable for our lawyers... does that mean it's time to try another one specifically geared to Open Source commercial products that solves the templating problem (and maybe some others?) -- OR -- Perhaps someone can really address the question that Dave asked- or maybe really my re-phrase of the original question: Is this *a* correct procedure? (I change the to a) Given this procedure, is this license automatically 'OSI certified'? *NOTE* MPL 1.2 is solely used in conjecture for the purposes of this email! Thanks for help understanding this too! James -Original Message- From: David Johnson [mailto:[EMAIL PROTECTED]] Sent: Sunday, October 06, 2002 10:03 PM To: Dave Nelson; OpenSource Licensing Discussion Group Subject: Re: Procedure for using an approved license On Sunday 06 October 2002 02:10 pm, Dave Nelson wrote: I wish to use the Mozilla 1.1 license, but don't know the exact procedures here. I copied the Mozilla 1.1 license from your site, replace 'Netscape' with my company, and 'Mozilla' with my product, and Netscape trademarks with mine. No other changes were made. Then added a line under the title stating: You did too much unnecessary work. The MPL is sufficiently templatized that you don't need to do all this. You only need to change the words Mozilla and Netscape if you make a derivative license of the MPL. This does not seem to be your intent. Far simpler: Just fill in EXHIBIT A with your name, software, etc., and you are done! You *do* want to keep the name Mozilla Public License, because people already know what it is and what rights it confers. Changing the name will only cause confusion. -- David Johnson ___ http://www.usermode.org pgp public key on website -- license-discuss archive is at http
Procedure for using an approved license
I wish to use the Mozilla 1.1 license, but don't know the exact procedures here. I copied the Mozilla 1.1 license from your site, replace 'Netscape' with my company, and 'Mozilla' with my product, and Netscape trademarks with mine. No other changes were made. Then added a line under the title stating: This license is the Mozilla Public License 1.1 with references to Netscape and their products replaced by NelSim Software and its products. And put it on my website at http://www.nelsim.com/license Is this the correct procedure? Given this procedure, is this license automatically 'OSI certified'? Dave -- Dave Nelson NelSim Software, Inc. 350 Elan Village Ln #305 San Jose Ca 95134 408 432-1370 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Procedure for using an approved license
On Sunday 06 October 2002 02:10 pm, Dave Nelson wrote: I wish to use the Mozilla 1.1 license, but don't know the exact procedures here. I copied the Mozilla 1.1 license from your site, replace 'Netscape' with my company, and 'Mozilla' with my product, and Netscape trademarks with mine. No other changes were made. Then added a line under the title stating: You did too much unnecessary work. The MPL is sufficiently templatized that you don't need to do all this. You only need to change the words Mozilla and Netscape if you make a derivative license of the MPL. This does not seem to be your intent. Far simpler: Just fill in EXHIBIT A with your name, software, etc., and you are done! You *do* want to keep the name Mozilla Public License, because people already know what it is and what rights it confers. Changing the name will only cause confusion. -- David Johnson ___ http://www.usermode.org pgp public key on website -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Procedure for using an approved license
For what it's worth, so far Netscape has been very responsible and careful about not making ad-hoc changes to their license. Look at the trouble they've been going to recently, to try and get all of their code MPL/GPL/LGPL tri-licensed. It would have been easy to take advantage of their right to change the license, to streamline this process, but they did not. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Procedure for using an approved license
James, I agree with the problems you've noted with MPL 1.1. For most practical purposes, the Open Software License (OSL) accomplishes most of what MPL 1.1 does -- without those problems you mentioned. The major difference is that MPL 1.1 applies on a file-by-file basis and the OSL deals consistently with derivative works, but I never understood the importance of a file-by-file license anyway in most typical software. /Larry Rosen -Original Message- From: James E. Harrell, Jr. [mailto:[EMAIL PROTECTED]] Sent: Sunday, October 06, 2002 7:52 PM To: David Johnson; Dave Nelson; OpenSource Licensing Discussion Group Subject: RE: Procedure for using an approved license Open Source friends, I've been looking at MPL 1.1 as well. One of the reasons I would replace the word Netscape with my own company name is #6.2: 6.2. Effect of New Versions. Once Covered Code has been published under a particular version of the License, You may always continue to use it under the terms of that version. You may also choose to use such Covered Code under the terms of any subsequent version of the License published by Netscape. No one other than Netscape has the right to modify the terms applicable to Covered Code created under this License. The last sentence is a difficult one for me- why would I ever want *Netscape* to be able to supplant this license with what they deem to be another better version? That version might say All covered code automatically becomes the sole property of Netscape corporation... Not suggesting that they would, but... Further, if I take this license to legal review and finally do find it to be acceptable for my product, what happens when MPL 1.2 comes out? The legal review is then pointless (or at least has to be re-done); but worse, if I don't like the terms of MPL 1.2, now I have a product that is licensed under terms that I don't find acceptable- and I have now way to keep you from using it under the terms of MPL 1.2. Now, give that MPL 1.1 is probably one of the most suitable licenses for commercial Open Source products... but there are some minor things that might not be acceptable for our lawyers... does that mean it's time to try another one specifically geared to Open Source commercial products that solves the templating problem (and maybe some others?) -- OR -- Perhaps someone can really address the question that Dave asked- or maybe really my re-phrase of the original question: Is this *a* correct procedure? (I change the to a) Given this procedure, is this license automatically 'OSI certified'? *NOTE* MPL 1.2 is solely used in conjecture for the purposes of this email! Thanks for help understanding this too! James -Original Message- From: David Johnson [mailto:[EMAIL PROTECTED]] Sent: Sunday, October 06, 2002 10:03 PM To: Dave Nelson; OpenSource Licensing Discussion Group Subject: Re: Procedure for using an approved license On Sunday 06 October 2002 02:10 pm, Dave Nelson wrote: I wish to use the Mozilla 1.1 license, but don't know the exact procedures here. I copied the Mozilla 1.1 license from your site, replace 'Netscape' with my company, and 'Mozilla' with my product, and Netscape trademarks with mine. No other changes were made. Then added a line under the title stating: You did too much unnecessary work. The MPL is sufficiently templatized that you don't need to do all this. You only need to change the words Mozilla and Netscape if you make a derivative license of the MPL. This does not seem to be your intent. Far simpler: Just fill in EXHIBIT A with your name, software, etc., and you are done! You *do* want to keep the name Mozilla Public License, because people already know what it is and what rights it confers. Changing the name will only cause confusion. -- David Johnson ___ http://www.usermode.org pgp public key on website -- 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 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
