Re: a proposed change to the OSD
Nathan Kelley wrote: OK. Let me see if I have this issue correct: (1) Many open-source licenses are essentially Copyright Notices Slight difference in my approach. They are more copyright *grants*, no mere notices. These mainly deal with modification, re-distribution, and disclaiming liability warranties. Actually, a single document, the 'license' does two things, first, the copyright part, second liabilities warranties. (2) The consensus among legal experts here is that a Copyright Notice is not sufficient for disclaiming liabilities warranties; Of course not. for that, a contract must be used. As usual, to form a valid No. The difference is very, very, very subtle. ( I said, NO ) contract, the parties involved both have to agree to the contract and a consideration has to pass between the two. Once again, NO NO NO. It is sufficient that the person who puts the s/w out (the offeror) to make clear his intentions to disclaim liability. Sometimes, (as in the US of A, as I understand it), there is no use even if the liability is disclaimed; coz. statute imposes liability. That is why, the GNU GPL says, except to the extent permitted by law, ... bla bla In other jurisdictions, the disclaimer acts as the terms and conditions under which the offeror makes the offer. Absense of consideration is another circumstances in which the courts are likely to *uphold* disclaimers. The 'click wrap' is only one of several means of ensuring that the oferee / receipient knows the terms under which the s/w is offered. In fact, several, the statute specifies, that in the absence of contrary stipulations between the parties, liability is to be presumed. Once again, it is for the offeror to ensure that the terms under which his s/w is made available are *properly* communicated (that is, driven into the users' heads). (3) In view of the fact that many open-source packages are also gratis, the majority opinion is that consideration in this case is the act of downloading or otherwise obtaining the software, as opposed to receiving monies. I do not hold this view; I do not about others. Making products available gratis isn't going to help; after all, Internet Explorer is gratis, but many organisations use it as an Precisely, but making the source code available, and telling the user what exactly it does along with putting the onus of ensuring the burden of ensuring that the sources meet the user's requirements on the user himself will help. In fact, with due respects to the courts and the opinion of US experts, I feel that the real, unspoken reasoning behind Specht V. Netscape (I think you are referring to this decision earlier), is that the s/w from Netscape did something it was not supposed and expected to do. That being so, I simply unable to view the decision in Specht as being justified by the reasoning given therein. ( in common english, this means that both the decision and the reasoning are correct, but the reasoning does not imply the conclusion arrived at. In law, this is really important, coz. courts are not supposed to adjudicate or reason on something which is not before them) That being so, no real purpose would be served by blindly following that decision. essential part of their desktop infrastructure. If there was a major defect in Internet Explorer that caused any particular enterprise customer revenue loss, would this really stop them from going to court? You are entitled to IE if, and only if, you have a licensed copy of any of the flavours of Microsoft's Windows operating system. You paid for that. Hence, the decision would be based on the fact that you paid for your copy of MS win; and *not* coz. the court holds a gratis s/w liable for damages caused by its use. The time is coming when you won't be able to distribute software unless you have presented the license to the user and their assent is necessary to access the software. Even free software. Our industry is maturing and we need to be more legally careful and rigorous. Yes, but, as one reads the history of what is called 'product liability' one finds that the real reason the courts, and the legislatures developed the concept is that the so called contract was between un-equals, and the producer was in a superior position, in terms of economic power and skill / technology - coz. the design, manufacutre and the specifications of the product was usually a secret. Hence, there was no real 'bargain' for purpose of fair contract. In case of OSS, we need to emphasise that the bargain is between equals, economically, and to some extent, technically. Technically coz the sources are available, and the user gets the right to modify them. Again, most licenses, like the GPL permit the distriutor to charge specifically for providing warranty. If the OSS community stresses these issues in their licenses, more specifically, in the disclaimer clauses in the licenses,
Re: a proposed change to the OSD
On Sunday 03 November 2002 02:42 am, Nathan Kelley wrote: Imagine, if you will, that a large proprietary software firm (or consortium) wishes to destroy open source software. If they can require that all software come with a warranty, the job is done -- time will cook the soup. No problem. Though I use the standard BSD license with disclaimer, I would have no problem offering a warranty. If for any reason you are dissatisfied with the software, the purchase price paid to the author will be refunded in full. Of course, I give my software away. But even commercial Open Source companies should be able to do at least that. Liability is a different kettle of fish entirely. -- 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: a proposed change to the OSD
I can offer something without entering a relationship with each recipient. I have software published on SourceForge; I entered into an agreement with SourceForge but I have no relationship with the people who downloaded my stuff from there. The people who downloaded might or might not have a relationship with SourceForge; that is no concern of mine. Likewise with Tripod, and other places where I have published stuff. Mahesh, you're switching back and forth between liability and warranty, using the words interchangeably, which is confusing. Warranty is a product that can be offered or not offered. Implied warranties are an implicit part of another product (which can be expressly excluded in many places). Liability is not a product to be offered; it's a completely different beast. If there is no contract, you can't contract away liability. But if there's no direct relationship between you and the recipient (such as a contract), it's hard to conceive of a way that you could be held liable in the first place. At least I, a mere software developer, cannot conceive of one. As for warranty, I was sure that I can always say I'm offering something as is. That's just a statement that I'm not offering any warranty products in addition to my software product. As for implicit warranties of merchantability etc., I will always use a license that says those don't apply, but why should the recipient care about merchantability if they didn't buy it? (And if they did buy it, they probably have a contract with whoever sold it to them, but not with me because I wasn't involved in the transaction.) THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW - I'm guessing the GPL says that for other reasons, that have to do with the fact that some jurisdictions don't let you remove the implied warranties of merchantability and fitness. I doubt this matters much for the software that FSF gives away, although it might make a difference for the CDs that they sell. I am only guessing. - Original Message - From: Mahesh T Pai [EMAIL PROTECTED] To: David Johnson [EMAIL PROTECTED] Cc: [EMAIL PROTECTED] Sent: Saturday, November 02, 2002 5:10 AM Subject: Re: a proposed change to the OSD David Johnson wrote: I still haven't come to grips yet with the concept that a contract is required for disclaimers of warranty. It seems to me that there must be another mechanism that achieves the same result. You have to make the terms under which you are offering something clear. Situations where a single person (eg. a software developer) entering into relationships with several persons ( eg, by distributing several copies of the same s/w) on same terms (that is, under the same license) are not always treated as *pure* (mark the word pure) contractual by courts - at least, in the common-law world. When you disclaim liability you have to make such disclaimer it clear and tell the court that you have informed the recipient of s/w that he knew, at least you took sufficient steps to inform the other guy about the existence of the disclaimer. If the relationship is contractual, this disclaimer will help you, if not, (status based) nothing will. That is why, the GNU GPL (and most other licenses) use the phrase THERE IS NO WARRANTY FOR THE PROGRAM, TO THE *EXTENT PERMITTED BY APPLICABLE LAW* in paragraph 11. Regards, Mahesh T Pai. -- 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: a proposed change to the OSD
Bruce Dodson scripsit: If there is no contract, you can't contract away liability. But if there's no direct relationship between you and the recipient (such as a contract), it's hard to conceive of a way that you could be held liable in the first place. At least I, a mere software developer, cannot conceive of one. That used to be the law. But people got tired of buying useless and/or dangerously defective products from stores and getting this answer: Store: I had no way to know it was useless/defective: try the manufacturer. Manufacturer: You and we have no privity of contract: try the store. So after enough people got angry enough, the law was changed. Now manufacturers are liable for the useless/defective products they produce *to the ultimate consumer*, under a fiction of implied warranty: the manufacturer is deemed to have issued such a warranty whether he has or not. The warranty disclaimer is an attempt to dispose of this obligation, and 1) it may not work at all in some jurisdictions, and 2) it surely will not work unless the manufacturer SHOUTS it at the consumer in an unmistakable place. -- Winter: MIT, John Cowan Keio, INRIA,[EMAIL PROTECTED] Issue lots of Drafts. http://www.ccil.org/~cowan So much more to understand! http://www.reutershealth.com Might simplicity return?(A tanka, or extended haiku) -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: a proposed change to the OSD
That used to be the law. But people got tired of buying useless and/or dangerously defective products from stores and getting this answer: Store: I had no way to know it was useless/defective: try the manufacturer. Manufacturer: You and we have no privity of contract: try the store. So after enough people got angry enough, the law was changed. Now manufacturers are liable for the useless/defective products they produce *to the ultimate consumer*, under a fiction of implied warranty: the manufacturer is deemed to have issued such a warranty whether he has or not. The warranty disclaimer is an attempt to dispose of this obligation, and 1) it may not work at all in some jurisdictions, and 2) it surely will not work unless the manufacturer SHOUTS it at the consumer in an unmistakable place. Yes, what John says is true. And so we find ourselves in a situation where manufactured products intended for consumers are covered by mandatory warranties under federal law. (Even some products that contain Linux software in them!) And there are effective product liability and consumer protection statutes in nearly all states that make manufacturers and distributors liable for the crap they foist on the unsuspecting public. Someday UCITA may do these things for software. Do you want that? Do you want the open source community to try to influence the shaping of laws like UCITA? For those who fantasize a different kind of world, let's make it so. In the meantime, we're stuck with contract law the way it is. Or at least the way it is in the US. How is it different in other countries? /Larry -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
Thanks John and Larry. Now I am starting to see. That's very frightening to think about, but I still find it hard to believe. With the manufacturer / retailer situation, the manufacturer got paid for the goods, and there was a chain of contracts even though there was no privity between manufacturer and final recipient. Does all of this apply equally to my situation, where I am making the software available purely as a gift? (I realize others among us are selling their open source products, and I have no problem with that, but that's not what I'm doing.) -- Forget about privity for a second. That's a red herring. My cat just strolled in, so now I have other things on my mind: Someone gave this cat to me; she was free to a good home. They said she was healthy, and it turned out they were right. If I found that she had some health problem when I got her, could I have expected the original owners to pay the veterinary expenses based on some theory of implied warranty? If I had decided to return her, could I have expected to be compensated some amount so I could buy a replacement cat from Pets R Us? Don't be stupid, Bruce, of course not, says my conscience. Does the law disagree? Also, does it give a different answer for software than for cats? - Original Message - From: Lawrence E. Rosen [EMAIL PROTECTED] To: 'John Cowan' [EMAIL PROTECTED]; 'Bruce Dodson' [EMAIL PROTECTED] Cc: [EMAIL PROTECTED]; 'David Johnson' [EMAIL PROTECTED]; [EMAIL PROTECTED] Sent: Saturday, November 02, 2002 8:15 PM Subject: RE: a proposed change to the OSD That used to be the law. But people got tired of buying useless and/or dangerously defective products from stores and getting this answer: Store: I had no way to know it was useless/defective: try the manufacturer. Manufacturer: You and we have no privity of contract: try the store. So after enough people got angry enough, the law was changed. Now manufacturers are liable for the useless/defective products they produce *to the ultimate consumer*, under a fiction of implied warranty: the manufacturer is deemed to have issued such a warranty whether he has or not. The warranty disclaimer is an attempt to dispose of this obligation, and 1) it may not work at all in some jurisdictions, and 2) it surely will not work unless the manufacturer SHOUTS it at the consumer in an unmistakable place. Yes, what John says is true. And so we find ourselves in a situation where manufactured products intended for consumers are covered by mandatory warranties under federal law. (Even some products that contain Linux software in them!) And there are effective product liability and consumer protection statutes in nearly all states that make manufacturers and distributors liable for the crap they foist on the unsuspecting public. Someday UCITA may do these things for software. Do you want that? Do you want the open source community to try to influence the shaping of laws like UCITA? For those who fantasize a different kind of world, let's make it so. In the meantime, we're stuck with contract law the way it is. Or at least the way it is in the US. How is it different in other countries? -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: a proposed change to the OSD
Bruce Dodson wrote: Forget about privity for a second. That's a red herring. My cat just strolled in, so now I have other things on my mind: Someone gave this cat to me; she was free to a good home. They said she was healthy, and it turned out they were right. If I found that she had some health problem when I got her, could I have expected the original owners to pay the veterinary expenses based on some theory of implied warranty? If I had decided to return her, could I have expected to be compensated some amount so I could buy a replacement cat from Pets R Us? Don't be stupid, Bruce, of course not, says my conscience. Does the law disagree? Also, does it give a different answer for software than for cats? I'm not sure about the cat situation. I've not read any cases about the law of contracts as it applies to pets accepted by good homes. Hardly anyone goes to court about their cats. (Check your local bar association for cat lawyers.) But software is ubiquitous and it is big business. Where money is at risk, courts and judges and lawyers and legislators and lobbyists are involved. So there are cases that deal with software. Those cases make it clear (at least to me) that we ought to use enforceable contracts when we license our software. Someday, everyone will adopt cats and use only free software. Perhaps by then the law will address both kinds of products in a similar fashion, and the phrase free to good homes will have broader meaning to open source advocates. /Larry -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
David Johnson wrote: A) A requirement for user consent, in my opinion, is immoral, unethical, and just plain rude. Yes. I agree there. I don't need to agree to a license in order to read a book. I don't need to agree to a license in order to listen to music. I should not have to agree to anything in order to use a copy of software which I own. But then, music will not cost you a dime if it 'malfunctions'; and books do not corrupt your hard disks / data. Copyright law is meant to be a compromise between the rights of the author and the rights of the possessor. Requiring user consent places too much control in the hands of the author. But then, in copyleft sense, consent is for the product liability clauses in the licenses, not the copyright grants. Regards, Mahesh T Pai. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
On Friday 01 November 2002 07:29 am, Mahesh T Pai wrote: I don't need to agree to a license in order to read a book. I don't need to agree to a license in order to listen to music. I should not have to agree to anything in order to use a copy of software which I own. But then, music will not cost you a dime if it 'malfunctions'; and books do not corrupt your hard disks / data. I still haven't come to grips yet with the concept that a contract is required for disclaimers of warranty. It seems to me that there must be another mechanism that achieves the same result. -- 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: a proposed change to the OSD
), that they must review them before using the software (use of please review was expressly rejected by one court as being a mere invitation, contributing to a finding that a license agreement referred to by a notice, with no requirement for any affirmative manifestation of assent, was not enforceable), and that they are bound by the terms of all of those agreements/licenses unless, after having reviewed them, they do not agree, in which case they must immediately discontinue any use of the software. (Or something along these lines - I'm trying to focus on key points that some courts have picked up on, not dictate precise language.) Lawrence E. Rosen To: 'John Cowan' [EMAIL PROTECTED], lrosen@rosenl[EMAIL PROTECTED], 'Russell Nelson' [EMAIL PROTECTED] aw.com cc: Subject: RE: a proposed change to the OSD 10/26/2002 10:03 AM Please respond to lrosen I'm getting tired of repeating myself I have proposed a click-wrap notice that would allow ONE single notice for all the programs in a distribution. I believe that one notice is legally sufficient and indeed necessary to obtain affirmative assent to the licenses for the individual works comprising that distribution. Other lawyers may disagree, and every lawyer is free to give legal advice to his/her clients. And if you don't like click-wrap notices, don't use them for your software. Just to be clear, I will ALWAYS recommend one to my clients -- at least until the law changes. /Larry -Original Message- From: John Cowan [mailto:jcowan;reutershealth.com] Sent: Saturday, October 26, 2002 9:51 AM To: [EMAIL PROTECTED] Cc: 'Russell Nelson'; [EMAIL PROTECTED] Subject: Re: a proposed change to the OSD Lawrence E. Rosen scripsit: Russ, if it was your intent to prevent click-wrap notices, then I'm While many in the open source community are opposed to such notices, I will ALWAYS recommend to my clients that they use such notices for their software, and that they require their sublicensees to use such notices. That could get old real fast, when the typical program requires the use of a dozen component libraries to function. How many dialogue boxes are you willing to click on before the Gimp starts up? Or should each user when logging on to the system for the first time be presented with about 700 of them to click on? This is the annoying [old-]BSD notice requirement in a new guise. Members of the community may not like it, but the courts are clear about the importance of such notices for contract formation. Whine and groan all you like, it's a legal necessity I'll change my mind about this only after you succeed in changing the law. I agree with what you say, but draw a different conclusion, viz. that contracts involving mere use (as opposed to a copyright-holder right such as modification) are a Very Bad Thing. -- John Cowan [EMAIL PROTECTED] www.reutershealth.com ccil.org/~cowan Dievas dave dantis; Dievas duos duonos --Lithuanian proverb Deus dedit dentes; deus dabit panem --Latin version thereof Deity donated dentition; deity'll donate doughnuts --English version by Muke Tever -- 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: a proposed change to the OSD
[EMAIL PROTECTED] writes: 1. Use Restrictions. It is not Sybase's intent (by use of a clickwrap format or otherwise) to restrict the use of the software for any purpose. Right. That's a different but related issue. 1) if there's no contract, there cannot possibly be any restrictions. 2) However Larry, Rod, and you feel strongly that there are benefits that flow in both directions from having a contract with users. And in any case, you're going to want to form a contract. 3) But if there is definitely a contract, then we need to make sure that the contract allows all the usual things that people do and expect to be able to do, including use, modify, and redistribute. While the OSD talks a lot about redistribution, it doesn't say as much about modification and even less about use. This makes sense given the history of the document as a listing of what will go into a distribution. 4) So the OSD needs to say something about use. However, existing licenses already put limits on what you can do with the code. The GPL requires that interactive use announce a copyright. If an author has has that in a program, you can't take it out. The OSL puts even more limits on code. If you make modified code available to other people, even if all they do is run it on your machine, you have to let them have the source. 5) I still want to modify the OSD, but I have to withdraw my earlier simplistic use permissions. The only material difference in the Sybase agreement is the addition of the clickwrap concept as a preferred structure. Agreed. 2. Clickwrap Structure. The key issue from our perspective, and the reason for incorporating a click-wrap concept as a preferred structure, is to make the disclaimers of warranty and liability, as well as other terms of the license, enforceable. We don't care how anybody uses the software that is subject to the agreement, but we don't want any claims or potential liability from any such use. Unless there is a structure that under current law gives some confidence that the disclaimers and limitations in particular will be enforced, there is a real disincentive for many entities to make software available on an open source basis. In my opinion, the current legal reality is that because of recent case law , structures - widely used as they are - that provide some notice of license terms but do not require a clear, unambiguous, affirmative manifestation of assent after an adequate opportunity to review may not be enforced by many courts in many cases. Continuing to use software after seeing that it is licensed seems like a pretty clear and unambiguous and affirmative manifestation of assent. The key seems to be more the clear and unambiguous presentation of the license. If there is a barrier through which you can pass only after realizing that there is a license, then proceeding through that barrier is assent. (use of please review was expressly rejected by one court as being a mere invitation, contributing to a finding that a license agreement referred to by a notice, with no requirement for any affirmative manifestation of assent, was not enforceable), Excellent weed, but I wish he wouldn't bogart that joint! reasonably feasible qualifier should address situations where clickwrap presents a technical problem. There may be better ways to provide the necessary flexibility, but the intent was to provide it. Good! Without that term, I don't see how we could approve the license. You say click-wrap in the presence of hackers, and you're lucky to escape with your life. My suggestion is for source code to be packaged in a precise manner so that initially, the only visible file is one called LICENSE, and the source code itself is in a hidden directory called .I-agree-to-LICENSE. It seems to me that a fully caffinated judge isn't going to let someone claim that they didn't see the license, or didn't agree to the license. I don't know how to deal with binaries. -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
of these. Larry Rosen's suggestion of providing one single click-wrap notice to obtain affirmative assent to multiple licenses is intriguing. I think it works if the single click-wrap notice tells users that there are multiple agreements/licenses governing the software components (and these are provided with and easily accessible in the software), that they must review them before using the software (use of please review was expressly rejected by one court as being a mere invitation, contributing to a finding that a license agreement referred to by a notice, with no requirement for any affirmative manifestation of assent, was not enforceable), and that they are bound by the terms of all of those agreements/licenses unless, after having reviewed them, they do not agree, in which case they must immediately discontinue any use of the software. (Or something along these lines - I'm trying to focus on key points that some courts have picked up on, not dictate precise language.) Lawrence E. Rosen To: 'John Cowan' [EMAIL PROTECTED], lrosen@rosenl [EMAIL PROTECTED], 'Russell Nelson' [EMAIL PROTECTED] aw.com cc: Subject: RE: a proposed change to the OSD 10/26/2002 10:03 AM Please respond to lrosen I'm getting tired of repeating myself I have proposed a click-wrap notice that would allow ONE single notice for all the programs in a distribution. I believe that one notice is legally sufficient and indeed necessary to obtain affirmative assent to the licenses for the individual works comprising that distribution. Other lawyers may disagree, and every lawyer is free to give legal advice to his/her clients. And if you don't like click-wrap notices, don't use them for your software. Just to be clear, I will ALWAYS recommend one to my clients -- at least until the law changes. /Larry -Original Message- From: John Cowan [mailto:jcowan;reutershealth.com] Sent: Saturday, October 26, 2002 9:51 AM To: [EMAIL PROTECTED] Cc: 'Russell Nelson'; [EMAIL PROTECTED] Subject: Re: a proposed change to the OSD Lawrence E. Rosen scripsit: Russ, if it was your intent to prevent click-wrap notices, then I'm While many in the open source community are opposed to such notices, I will ALWAYS recommend to my clients that they use such notices for their software, and that they require their sublicensees to use such notices. That could get old real fast, when the typical program requires the use of a dozen component libraries to function. How many dialogue boxes are you willing to click on before the Gimp starts up? Or should each user when logging on to the system for the first time be presented with about 700 of them to click on? This is the annoying [old-]BSD notice requirement in a new guise. Members of the community may not like it, but the courts are clear about the importance of such notices for contract formation. Whine and groan all you like, it's a legal necessity I'll change my mind about this only after you succeed in changing the law. I agree with what you say, but draw a different conclusion, viz. that contracts involving mere use (as opposed to a copyright-holder right such as modification) are a Very Bad Thing. -- John Cowan [EMAIL PROTECTED] www.reutershealth.com ccil.org/~cowan Dievas dave dantis; Dievas duos duonos --Lithuanian proverb Deus dedit dentes; deus dabit panem --Latin version thereof Deity donated dentition; deity'll donate doughnuts --English version by Muke Tever -- 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: a proposed change to the OSD
David Johnson scripsit: I do NOT have a problem with click-wrap licenses that are presented to the user BEFORE the software is obtained. Okay, I may have problems with some actual licenses, but not with the concept. I have a problem with a multiplicity of such licenses, and the fact that it's far from clear who-all needs to accept them. We aren't living in a single-user-PC world, at least not all of us. Larry thinks he can create a single acknowledgement that will satisfy every company lawyer in the U.S., if not the world. As Mark Twain said, I will admire to see him try. -- Even a refrigerator can conform to the XML John Cowan Infoset, as long as it has a door sticker [EMAIL PROTECTED] saying No information items inside. http://www.reutershealth.com --Eve Maler http://www.ccil.org/~cowan -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: a proposed change to the OSD
Larry thinks he can create a single acknowledgement that will satisfy every company lawyer in the U.S., if not the world. As Mark Twain said, I will admire to see him try. I never said I could accomplish such a lofty goal; such people are never satisfied. But I think my single click-wrap notice will work better for contract enforcement than no notice at all. I'll be glad to argue that with every company lawyer in the U.S., if not the world. :-) I haven't had a lawyer disagree with me yet. I'm wearing the flame-marks from non-lawyers on my forehead like a badge of honor. /Larry -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: Re: a proposed change to the OSD
Robert Samuel White writes: as Russ and some his cronies. I don't have cronies. I have minions. -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
John Cowan writes: Russell Nelson scripsit: At the end of the day, Larry, the community doesn't want to use software for which it has to contract to use. Amen. I was reflecting on the Open Software License, and I realized that it is not only viral, it is super-viral. Essentially everyone who uses the program must be able to distribute source as well. If you use an OSL program in any way in your work, if you so much as use it to assist in sending email to anyone, you have Externally Deployed it (used [it] to provide services or otherwise deliver content to anyone other than You.) A home user might feel more exempt playing an OSL game, but if that game can communicate with other gamers over the Internet, it's Externally Deployed again, and the home user better be able to supply source code. And if your copy of the game sends information to my copy, you have distributed to me, and if you aren't prepared to supply source code, I sue you under the OSL. These are just people who use the software as-is and don't try to modify it in any way. The license makes an exception for deployment to people in the same company with you (they are all part of You), but in fact everything done in the course of business assists the business in providing services or otherwise deliver[ing] content to the customers of the business, and so it too counts as External Deployment. So only what you do on your own, personally owned, totally isolated system is protected from the reach of this license. Don't use the OSL. Don't use OSL-licensed software. Is your next step going to be to stand up at the O'Reilly Open Source Conference and proclaim It's not a free software license. Don't use it! Sorry, but you're sounding like a certain zealot, the way you phrased that paragraph. John, go read the proposed GPLv3. People who like the GPLv2 (and you may not be be one of them) tend to like the GPLv3. And those who don't like the GPLv2 REALLY don't like the GPLv3. The OSL is no more or less an attempt to be compatible with the GPLv3 before it's published (unless I miss my mark). -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
John Cowan writes: Russell Nelson scripsit: How about this legal theory instead of click-wrap: you got the software for free. If you continue to use it, it is because you agree with the terms under which the software is offered. If ever you disagree, you have simply to delete the software. You could very well claim that you did not know the terms, because you had no notice of them. Well, let's consider the cases: 1) You want to make a derivative work. In order to do that, you must have a license. If you claim not to know the terms of the license, then you're saying that you *meant* to infringe the copyright because of your indifference to the license terms. This is the law of the land. Ignorance of the law is no excuse. 2) You want to sue someone because their software harmed you. In order to plausibly claim that you did not know the terms of the software (and the fact that the warranty was denied), you have to claim that you thought the software was warrantied in spite of the fact that NO software is EVER warrantied, and EVERY software license disclaims warranty. That demands of level of ignorance that begs credulity. 3) You want to merely use or modify the software. Since this software is OSI Certified Open Source software, you know that no license can restrict you. Therefore there is no point in reading the license, as a mere user of the software. -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: a proposed change to the OSD
David Johnson wrote: You completely misunderstand me. Then again, perhaps I misunderstood you. I had assumed that your use of the term click-wrap referred to a license presented to the user *after* the software was aquired. If you cannot understand my disagreement with this kind of licensing, just imagine that this practice was common in the automobile industry. Imagine you have purchased a new car, received a bill of sale, etc., then noticed on the steering wheel a piece of paper that said you had to agree to an additional contract before you could drive the car. I do NOT have a problem with click-wrap licenses that are presented to the user BEFORE the software is obtained. Okay, I may have problems with some actual licenses, but not with the concept. I have NEVER suggested that an after-the-fact click-wrap notice would be effective. Indeed, the entire concept of click-wrap is intended to prevent a situation where the user is not informed of the license terms BEFORE he begins to use the software. A click-wrap notice must be presented to the licensee BEFORE the software is first used. For *practical reasons* that every reasonable consumer of software understands, that may be AFTER the licensee has gone to the store to buy a copy, or AFTER the download or installation process is started. The courts recognize these practical situations. Therefore, with commercial software, the licensor must provide a full money-back guarantee if the software is returned BEFORE it is actually used. The click-wrap notice I previously recommended is intended to be seen and acknowledged by the user at any reasonable time BEFORE first use -- upon download or upon first installation, whichever is most practical. The analogy to automobiles is entirely apt. Anyone who has purchased a car at a dealer knows that the dealer presents a sheaf of paperwork to be signed before the car can be driven off the lot. Does every consumer read the front and back of each form? Of course not! But if the dealer didn't present the forms and require a signature, then the dealer would be stuck with a returned car every time a consumer discovered he could get the same car for $10 less at the dealer down the block, or if he discovered that his spouse doesn't like the color. UCITA is intended to codify, in statute, the reasonable expectations of the parties with respect to software transactions. That would be a good result, so that we're not left with confused courts trying to analogize sale-of-goods contract law with the unique characteristics of software transactions. Unfortunately UCITA brings along unacceptable baggage. I would like to see UCITA-like provisions adopted that clarify once and for all what license terms are acceptable and which are contrary to public policy, for example. I would like to see a clear statement of whether a consumer may refuse to accept a license with which he disagrees even after he has bought the software. That law has not yet been written or adopted by the states. In the meantime, I will recommend to all of my clients that they present license terms to the users of their software BEFORE download, BEFORE installation or BEFORE first use, whichever is most practical under the circumstances. /Larry Rosen -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
Russell Nelson wrote: I'm going to propose a change the Open Source Definition at our board meeting next Thursday. It is simply this: 0) A license may not restrict use or modification of a lawfully obtained copy of a work. Anybody have problems with this? Does this have any problems? I've two questions: Why this change? What is really changed by this? [Somebody can give me some example of real licenses that don't follow this point? (Bitkeeper's public license?)] ciao ] giacomo -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
* Bruce Perens ([EMAIL PROTECTED]) wrote: Copyright law spells out a number of rights, including use and creation of derived works. GPL attempts to restrict the creation of derived works and contends that linking creates a derived work. This position is not a use restriction, but may not be enforcible in court - we need more cases to know for sure. Other licenses, like Larry's latest effort, do this with something that is more clearly enforcible but rely on a use restriction. Can you explain to me (and the list) what the definition of a 'use restriction' is? Dave Have a happy GNU millennium! -- / Dr. David Alan Gilbert| Running GNU/Linux on Alpha,68K| Happy \ \ gro.gilbert @ treblig.org | MIPS,x86,ARM, SPARC and HP-PA | In Hex / \ _|_ http://www.treblig.org |___/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
Giacomo A. Catenazzi writes: Russell Nelson wrote: I'm going to propose a change the Open Source Definition at our board meeting next Thursday. It is simply this: 0) A license may not restrict use or modification of a lawfully obtained copy of a work. Anybody have problems with this? Does this have any problems? I've two questions: Why this change? Because over the lifetime of OSI, various people have tried to interpret the OSD as allowing restrictions on usage. What is really changed by this? [Somebody can give me some example of real licenses that don't follow this point? (Bitkeeper's public license?)] Yes, BitKeeper's public license. But there's also a pending license (Sybase) which requires that users indicate their assent to the license through click-wrap or equivalent. *Users*. -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: a proposed change to the OSD
Russ Open Source friends, I'm fairly new to this group, though immensly interested from a perspective of how Open Source and for-profit corporations can work together- so please grant me a *little* bit of leeway. I've tried to stay out of the discussion, as I am in no way an expert in this field. Though the last comment pushed me over the edge into the world of participation. I just tried to visit the website to see if BitKeeper's license is already OSD approved- but the site isn't there. It's part of my argument, so I'll go out on a limb and assume it is OSD approved. If not, you can safely ignore part of this email, though it's only half of the argument. :) I would think it bad faith to change the definition based on a pending license in order to be able to specifically exclude this license. This may not be the case- but from the (very) outside- that's what it looks like. Also, I would think it counter productive to change the definition when an existing license already has such a clause- you'd either have to revoke approval on the existing license (again bad faith), or you're in a very difficult situation when people suggest new licenses based on that one. After all- an approved license contains an un-approvable clause; so there's a valid case for a precident argument. Russ writes: Yes, BitKeeper's public license. But there's also a pending license (Sybase) which requires that users indicate their assent to the license through click-wrap or equivalent. *Users*. It looks like the Sybase license might be on an approval track; that maybe it meets the current OSD definition. But someone doesn't like a particular clause in the license- and without a rule that specifically prohibits said clause, there's no justification to deny the license so change the rule and the license can be denied? I don't see significant harm in users indicating consent via click-wrap. As a matter of fact, my lawyers insist on it when I write commercial software. Excluding such an action (which according to our lawyers makes the license slightly more enforcable) will not encourage commercial entities to participate in Open Source. I would hope that the OpenSource.org community would actually encourage commercial entities to find a way to participate. That's where I am now- trying to figure out how to make payroll (including my own salary) for a commercial project that is Open Source. But it didn't work for Eazel... Maybe I'm in the wrong place? If click-wrap is specifically excluded, then our product and desired license also won't meet the OSD. So maybe it will just have to be open source (with a lower case O and S)? Please don't take my remarks as intending to be inflamatory- I'm not trying to push the Gospel of Gates on your group. :) I'm just trying to figure out if there is a way for Commercial and Open Source to co-exist; or better yet live symbioticly. Regards, James E. Harrell, Jr., CEO Copernicus Business Systems, LLC -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
The official site is, indeed, down but my mirror is available should anyone require use of it: http://open5ource/opensource.org, other mirrors are available from there should mine be slow. Steve Mallett http://OSDir.com on the O'Reilly Network | [EMAIL PROTECTED] http://opensource.org | [EMAIL PROTECTED] http://open5ource.net personal Fight piracy -- regulate singing fish novelties! -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: a proposed change to the OSD
Yes, BitKeeper's public license. But there's also a pending license (Sybase) which requires that users indicate their assent to the license through click-wrap or equivalent. *Users*. Russ, if it was your intent to prevent click-wrap notices, then I'm definitely NOT in favor. While many in the open source community are opposed to such notices, I will ALWAYS recommend to my clients that they use such notices for their software, and that they require their sublicensees to use such notices. Members of the community may not like it, but the courts are clear about the importance of such notices for contract formation. Whine and groan all you like, it's a legal necessity I'll change my mind about this only after you succeed in changing the law. /Larry Rosen -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
Lawrence E. Rosen scripsit: Russ, if it was your intent to prevent click-wrap notices, then I'm While many in the open source community are opposed to such notices, I will ALWAYS recommend to my clients that they use such notices for their software, and that they require their sublicensees to use such notices. That could get old real fast, when the typical program requires the use of a dozen component libraries to function. How many dialogue boxes are you willing to click on before the Gimp starts up? Or should each user when logging on to the system for the first time be presented with about 700 of them to click on? This is the annoying [old-]BSD notice requirement in a new guise. Members of the community may not like it, but the courts are clear about the importance of such notices for contract formation. Whine and groan all you like, it's a legal necessity I'll change my mind about this only after you succeed in changing the law. I agree with what you say, but draw a different conclusion, viz. that contracts involving mere use (as opposed to a copyright-holder right such as modification) are a Very Bad Thing. -- John Cowan [EMAIL PROTECTED] www.reutershealth.com ccil.org/~cowan Dievas dave dantis; Dievas duos duonos --Lithuanian proverb Deus dedit dentes; deus dabit panem --Latin version thereof Deity donated dentition; deity'll donate doughnuts --English version by Muke Tever -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: a proposed change to the OSD
Lawrence E. Rosen writes: the courts are clear about the importance of such notices for contract formation. What attributes of a license make a contract necessary? I know that you need a contract to disclaim warranties, but I'm not sure that it's necessary to disclaim a warranty on a gift. I'll change my mind about this only after you succeed in changing the law. That's what I'm trying to do. I have mostly contempt for legislators, but judges and lawyers form law in a much wiser manner. There isn't an awful lot of precedent in regards the distribution of free software, and what precedent exists is only on a District level. I believe that, by codifying existing practice, we can change the law -- or at least affect judge's decisions. At the end of the day, Larry, the community doesn't want to use software for which it has to contract to use. Since it's our job as an industry advocacy group to encourage the production and use of open source software, it's our responsibility to tell the producers of open soruce that the users of open source aren't going to contract for its use. -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: a proposed change to the OSD
Lawrence E. Rosen writes: Do you really mean: A license may not restrict use or modification by the possessor of a lawfully obtained copy of a work. That's what I mean. How can you use or modify something unless you possess it? Remote control?? But I'm not sure that this particular term prohibits click-wrap. For example, a warranty disclaimer would restrict neither use nor modification. On the other hand, this provision, either your wording or mine, might conflict with the following provision in the OSL: 5) External Deployment. The term External Deployment means the use or distribution of the Original Work or Derivative Works in any way such that the Original Work or Derivative Works may be accessed or used by anyone other than You, I want the terms to be interpreted to mean that private use and private modifications may never, under any circumstances, be restricted. I'm fine with the idea that letting other people use code you have modified is distribution of a derived work. -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: a proposed change to the OSD
I'm getting tired of repeating myself I have proposed a click-wrap notice that would allow ONE single notice for all the programs in a distribution. I believe that one notice is legally sufficient and indeed necessary to obtain affirmative assent to the licenses for the individual works comprising that distribution. Other lawyers may disagree, and every lawyer is free to give legal advice to his/her clients. And if you don't like click-wrap notices, don't use them for your software. Just to be clear, I will ALWAYS recommend one to my clients -- at least until the law changes. /Larry -Original Message- From: John Cowan [mailto:jcowan;reutershealth.com] Sent: Saturday, October 26, 2002 9:51 AM To: [EMAIL PROTECTED] Cc: 'Russell Nelson'; [EMAIL PROTECTED] Subject: Re: a proposed change to the OSD Lawrence E. Rosen scripsit: Russ, if it was your intent to prevent click-wrap notices, then I'm While many in the open source community are opposed to such notices, I will ALWAYS recommend to my clients that they use such notices for their software, and that they require their sublicensees to use such notices. That could get old real fast, when the typical program requires the use of a dozen component libraries to function. How many dialogue boxes are you willing to click on before the Gimp starts up? Or should each user when logging on to the system for the first time be presented with about 700 of them to click on? This is the annoying [old-]BSD notice requirement in a new guise. Members of the community may not like it, but the courts are clear about the importance of such notices for contract formation. Whine and groan all you like, it's a legal necessity I'll change my mind about this only after you succeed in changing the law. I agree with what you say, but draw a different conclusion, viz. that contracts involving mere use (as opposed to a copyright-holder right such as modification) are a Very Bad Thing. -- John Cowan [EMAIL PROTECTED] www.reutershealth.com ccil.org/~cowan Dievas dave dantis; Dievas duos duonos --Lithuanian proverb Deus dedit dentes; deus dabit panem --Latin version thereof Deity donated dentition; deity'll donate doughnuts --English version by Muke Tever -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: a proposed change to the OSD
Lawrence E. Rosen writes: I have proposed a click-wrap notice that would allow ONE single notice for all the programs in a distribution. I believe that one notice is legally sufficient and indeed necessary to obtain affirmative assent to the licenses for the individual works comprising that distribution. Other lawyers I'd like to hear from other lawyers. Various members of the open source community have been *very* clear that it is completely impractical to have to consider and click on every license in a distribution. If that is indeed necessary to establish privity, then we have a problem more serious than the mere existance of proprietary software. If, instead, Larry's idea is sufficient, then great, we can allow all the click-wrap people want. Rod Dixon has pointed out that click-wrap is not the only method by which agreement can be indicated. How about this legal theory instead of click-wrap: you got the software for free. If you continue to use it, it is because you agree with the terms under which the software is offered. If ever you disagree, you have simply to delete the software. -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
From: Dr. David Alan Gilbert [EMAIL PROTECTED] Can you explain to me (and the list) what the definition of a 'use restriction' is? IANAL, of course. For software, use is execution of the software. Copyright law doesn't speak much of software at all, so we can't rely on that for a definition and must look at court cases for precedents. Creation of derived works is a separate right from use under copyright law. It can be restricted separately from use, and vice versa. The act of modifying software creates a derived work that is partially your copyright, and partially that of the original contributor. Public performance is a separate right as well, but in the U.S. it is defined to apply to plays and audiovisual media, and _not_ to software. There is some contention regarding whether linking creates a derived work, and exactly one court case on the topic that isn't definitive. Dynamic linking, server-izing, and cross-process procedure call schemes like CORBA make this more complicated. With CORBA, you can use a library without ever linking to it, and it would be difficult to proves in court that a derived work would be created. In many of these schemes, the derived work, if one exists, is created on the user's system at run-time and it's going to be difficult to prove in court that it's _distributed_ as a derived work. All of this makes it questionable that the GPL's linking provisions with regard to source-code disclosure would be enforced in court. In an effort to create a more clearly enforcible GPL-like license, Larry has relied on _use_ restriction rather than restriction of the creation of derived works in his new license. Thanks Bruce -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
* Bruce Perens ([EMAIL PROTECTED]) wrote: IANAL, of course. No problem - neither am I. For software, use is execution of the software. Copyright law doesn't speak much of software at all, so we can't rely on that for a definition and must look at court cases for precedents. Creation of derived works is a separate right from use under copyright law. It can be restricted separately from use, and vice versa. The act of modifying software creates a derived work that is partially your copyright, and partially that of the original contributor. So as an author of a library or the like I need to grant the license to use and.. There is some contention regarding whether linking creates a derived work, and exactly one court case on the topic that isn't definitive. So to allow someone to distribute a statically linked version of something linked with a library; I should probably give them rights to make a derivative work; but also would need to give them rights to grant use licenses on the derivative? Dave Have a happy GNU millennium! -- / Dr. David Alan Gilbert| Running GNU/Linux on Alpha,68K| Happy \ \ gro.gilbert @ treblig.org | MIPS,x86,ARM, SPARC and HP-PA | In Hex / \ _|_ http://www.treblig.org |___/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
John Cowan writes: Russell Nelson scripsit: I'm going to propose a change the Open Source Definition at our board meeting next Thursday. It is simply this: 0) A license may not restrict use or modification of a lawfully obtained copy of a work. What about verbatim copying? Seems to me that shouldn't be restricted either, or am I overlooking something? Probably not, but I haven't seen anybody complain about that not being allowed. Yeah, call me a reactionary if you want. -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
Dr. David Alan Gilbert writes: * Bruce Perens ([EMAIL PROTECTED]) wrote: My only concern is how this would interact with Larry's new license. Well I was thinking about GPL on libraries since that restricts what you are allowed to link the library against; (No I'm not trying to get into an argument about the merits or not of this). No, it doesn't. The GPL only has a few minor terms covering use. The GPL relies on the act of distribution for enforcing its conditions. -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
From: Dr. David Alan Gilbert [EMAIL PROTECTED] but also would need to give them rights to grant use licenses on the derivative? You directly license all users of your portion of the derivative work. The creator of the derivative work does the same. The alternative is to propogate a right to sublicense, which is more complicated so it's generally not handled that way. Thanks Bruce -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
Despite the expressed sentiment of some OSI members, I doubt that any lawyer would advise support of this change to the OSD, if it pertains to the clickwrap issue. Rod Rod Dixon Visiting Assistant Professor of Law Rutgers University Law School - Camden [EMAIL PROTECTED] http://www.cyberspaces.org/dixon/ My papers on the Social Science Research Network (SSRN) are available through the following url: http://papers.ssrn.com/author=240132 I'm going to propose a change the Open Source Definition at our board meeting next Thursday. It is simply this: 0) A license may not restrict use or modification of a lawfully obtained copy of a work. Anybody have problems with this? Does this have any problems? -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- 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: a proposed change to the OSD
On Saturday 26 October 2002 08:36 am, James E. Harrell, Jr. wrote: I don't see significant harm in users indicating consent via click-wrap. As a matter of fact, my lawyers insist on it when I write commercial software. Excluding such an action (which according to our lawyers makes the license slightly more enforcable) will not encourage commercial entities to participate in Open Source. A) A requirement for user consent, in my opinion, is immoral, unethical, and just plain rude. I don't need to agree to a license in order to read a book. I don't need to agree to a license in order to listen to music. I should not have to agree to anything in order to use a copy of software which I own. Copyright law is meant to be a compromise between the rights of the author and the rights of the possessor. Requiring user consent places too much control in the hands of the author. B) Commercial entities that can not stomache this have no place in the Open Source community. They wish to sell their software but act as if they have only leased it. They put their software in colorful boxes, shrink wrap it, sell it at retail outlets, then pretend that they have only sold the right to use the software. These companies need to grow a backbone and become honest. If they don't want the user to have the right to use the software, then they need to stop pretending to sell it. They need to stop pretending that software is a product. Place the license or contract in front of the user *before* the user aquires the software. Be explicit that the software is leased to the user. Even though it still won't be Open Source software, at least the employees of the company will be able to sleep well at night. Despites attempts to educate me, I still cannot understand why contract formations are necessary *after* the fact. If you want someone to agree to your contract, then get them to agree *before* they get your software. Maybe I'm in the wrong place? If click-wrap is specifically excluded, then our product and desired license also won't meet the OSD. So maybe it will just have to be open source (with a lower case O and S)? It still wouldn't be open source. The idea of open source is much more than the capitalization of words. There's an idea behind it that is much more important than mere clauses in a definition. -- 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: a proposed change to the OSD
From: Russell Nelson [EMAIL PROTECTED] No, it doesn't. The GPL only has a few minor terms covering use. The GPL relies on the act of distribution for enforcing its conditions. And those conditions mostly hinge on the right to create derived works rather than the right to use. Bruce -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
Rod Dixon, J.D., LL.M. writes: Despite the expressed sentiment of some OSI members, I doubt that any lawyer would advise support of this change to the OSD, if it pertains to the clickwrap issue. I didn't write it to address the clickwrap issue, although I can see that it does affect it. I wrote it to address the concern that a number of people have had that the OSD puts no limits on the restrictions a license may place on use. clickwrap is a whole 'nother ball of wax, and upon reflection, I'd like to separate the two issues as much as possible. To make the crafting of this even more interesting, the GPL v2 puts restrictions on use and modification. Im not above hoisting RMS on his own petard even though, sigh, I know that Saint Ignucius is beyond reproach, and that, sigh, we could never get away with accusing the GPLv2 of not being a free software license. I never did understand why McVoy failed to point out that the GPL prohibits certain modifications of the code. -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
Calling an open source license a gift is nice semantics, but I am unsure what else that description gets us... Try asking yourself what is the remedy for breach/violation of an open source license that the copyright holder/licensor can pursue? In answering the question, it is not enough to say that no one will violate the license; I am asking a what if question (and, truth be told, open source licenses occasionally are violated). Not to ask and answer my own question, but I suspect the answer will be that the open source licensor/copyright holder will seek the same remedy as anyone else; namely, the copyright holder will enforce his or her copyright license. If so, there are obvious questions that the court will have to answer, which may include the mutual assent issue, if litigation is the route to remedy. I understand the desire to develop of a habit and practice that might ultimately impact the resolution of legal rights in the somewhat-distant future, but I do not understand the persistent inclination to ignore how courts have viewed these issues in the past, and likely will do so for some time in the future. Rod Rod Dixon Visiting Assistant Professor of Law Rutgers University Law School - Camden [EMAIL PROTECTED] http://www.cyberspaces.org/dixon/ My papers on the Social Science Research Network (SSRN) are available through the following url: http://papers.ssrn.com/author=240132 - Original Message - From: Russell Nelson [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Saturday, October 26, 2002 1:01 PM Subject: RE: a proposed change to the OSD Lawrence E. Rosen writes: the courts are clear about the importance of such notices for contract formation. What attributes of a license make a contract necessary? I know that you need a contract to disclaim warranties, but I'm not sure that it's necessary to disclaim a warranty on a gift. I'll change my mind about this only after you succeed in changing the law. That's what I'm trying to do. I have mostly contempt for legislators, but judges and lawyers form law in a much wiser manner. There isn't an awful lot of precedent in regards the distribution of free software, and what precedent exists is only on a District level. I believe that, by codifying existing practice, we can change the law -- or at least affect judge's decisions. At the end of the day, Larry, the community doesn't want to use software for which it has to contract to use. Since it's our job as an industry advocacy group to encourage the production and use of open source software, it's our responsibility to tell the producers of open soruce that the users of open source aren't going to contract for its use. -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- 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: a proposed change to the OSD
On Saturday 26 October 2002 04:14 pm, James E. Harrell, Jr. wrote: Wow- this is quite a militant reaction! I guess maybe I am in the wrong place... and it's curious to me why there is so much anger towards the commercial entity. To the others in this group- is this representative of your Open Source community at large? Should I crawl back under my rock? I recently had surgery. The militancy comes from the fact that my Vicodin ran out yesterday, and I am now running on Tylenol. I have no hostility towards commercial software. None at all. But there are some practices which I feel are unethical that are becoming distressingly common in the commercial software industry. Click-wrap (or more precisely, after-the-fact click-wrap) is one of them. Just a couple of days ago on a support list for a proprietary commercial software product, it was stated by the vendor that the Right of First Sale does not apply, and people who aquire the software at yard sales have no legal right to use it. I am doing my best in my tiny little way to keep this sort of attitude out of the Open Source landscape. B) Commercial entities that can not stomache this have no place in the Open Source community. Are you implying that we are not worthy of allowing others to read and use our source? Here I am, trying to figure out how to give back. And, in essence, you're saying you're not interested becuase I have to actually pay my employees to write software? I joined this mailing list so I could understand how to build my company in a manner that bridges the gap between the commercial world and the free world. So far, I'm not encouraged. You completely misunderstand me. Then again, perhaps I misunderstood you. I had assumed that your use of the term click-wrap referred to a license presented to the user *after* the software was aquired. If you cannot understand my disagreement with this kind of licensing, just imagine that this practice was common in the automobile industry. Imagine you have purchased a new car, received a bill of sale, etc., then noticed on the steering wheel a piece of paper that said you had to agree to an additional contract before you could drive the car. I do NOT have a problem with click-wrap licenses that are presented to the user BEFORE the software is obtained. Okay, I may have problems with some actual licenses, but not with the concept. Even though it still won't be Open Source software, at least the employees of the company will be able to sleep well at night. The employees of my company sleep well at night when they know that their next paycheck will clear. Is that so wrong? I have no problem with your company meeting payroll. I have a big problem if your company lies to meet payroll. I have no idea if your company does this or not, but a great many do. Here is how they lie: They package, market and present the software as a salable product, to the point that _sales_receipts_ are obtained by the consumer, yet if it is to their advantage they will claim that the software was not actually sold, only a license to use it in certain circumstances. If you do not intend to actually sell copies of the software, then do not pretend to do so. Instead be explicit that you are either leasing the software, or selling an opportunity to license the use of the software. It still wouldn't be open source. The idea of open source is much more than the capitalization of words. There's an idea behind it that is much more important than mere clauses in a definition. And this is a point I'm struggling with- how is it that you can claim ownership of the term Open Source, how it is defined, how it is used and applied, or even the idea behind it? Philosophically- I see little difference between this and the ownership and regulation of softare that this group appears to fight so hard to keep Open. As long as it's the definition of the word OPEN that YOU claim, and no one else can modify? Sounds pretty closed if you ask me! The Open Source Definition attempts to define the qualities of a certain class of software. The Free Software definition attempts the same thing. Neither attempt is 100% accurate, but the users of the terms Open Source and Free Software still have a very clear picture in their mind as to what is meant. Although the term open source, as applied to software, is still very new, it has been used almost exclusively to refer to this particular class of software. There is no trademark on the term purple spotted, but if I use that term to refer to a red striped ball, people will think I'm nuts. Likewise, if you use the term open source to refer to software that does not grant the user the right to freely use, copy, modify and distribute it, people will think you're silly. -- 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: a proposed change to the OSD
Rod Dixon, J.D., LL.M. writes: I understand the desire to develop of a habit and practice that might ultimately impact the resolution of legal rights in the somewhat-distant future, but I do not understand the persistent inclination to ignore how courts have viewed these issues in the past, and likely will do so for some time in the future. Russel Nelson writes: Do you understand why people persistently ignore the speed limit? I write: Because they are reckless. They do not appreciate the great responsibility which has been bestowed upon them with a driver license. They risk the safety of others. They have no appreciation for authority except their own. Sounds like someone on this list. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
Russell Nelson scripsit: How about this legal theory instead of click-wrap: you got the software for free. If you continue to use it, it is because you agree with the terms under which the software is offered. If ever you disagree, you have simply to delete the software. You could very well claim that you did not know the terms, because you had no notice of them. -- John Cowan http://www.ccil.org/~cowan [EMAIL PROTECTED] Be yourself. Especially do not feign a working knowledge of RDF where no such knowledge exists. Neither be cynical about RELAX NG; for in the face of all aridity and disenchantment in the world of markup, James Clark is as perennial as the grass. --DeXiderata, Sean McGrath -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
a proposed change to the OSD
I'm going to propose a change the Open Source Definition at our board meeting next Thursday. It is simply this: 0) A license may not restrict use or modification of a lawfully obtained copy of a work. Anybody have problems with this? Does this have any problems? -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
My only concern is how this would interact with Larry's new license. Thanks Bruce -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
On Friday 25 October 2002 02:43 pm, Russell Nelson wrote: 0) A license may not restrict use or modification of a lawfully obtained copy of a work. Anybody have problems with this? Does this have any problems? Several of the licenses have conditions on the -public- modification of the work. This may cause some confusion for the casual reader. I don't see any problem with existing licenses (though I haven't gone back and reread them all), but it would be helpful to include an explanatory paragraph for this clause as is done for the others. If your clause could be enshrined in copyright law! -- 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: a proposed change to the OSD
* Bruce Perens ([EMAIL PROTECTED]) wrote: My only concern is how this would interact with Larry's new license. Well I was thinking about GPL on libraries since that restricts what you are allowed to link the library against; (No I'm not trying to get into an argument about the merits or not of this). Dave Have a happy GNU millennium! -- / Dr. David Alan Gilbert| Running GNU/Linux on Alpha,68K| Happy \ \ gro.gilbert @ treblig.org | MIPS,x86,ARM, SPARC and HP-PA | In Hex / \ _|_ http://www.treblig.org |___/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
Russell Nelson scripsit: I'm going to propose a change the Open Source Definition at our board meeting next Thursday. It is simply this: 0) A license may not restrict use or modification of a lawfully obtained copy of a work. What about verbatim copying? Seems to me that shouldn't be restricted either, or am I overlooking something? -- John Cowan [EMAIL PROTECTED] http://www.reutershealth.com I amar prestar aen, han mathon ne nen,http://www.ccil.org/~cowan han mathon ne chae, a han noston ne 'wilith. --Galadriel, _LOTR:FOTR_ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
* Russell Nelson ([EMAIL PROTECTED]) wrote: I'm going to propose a change the Open Source Definition at our board meeting next Thursday. It is simply this: 0) A license may not restrict use or modification of a lawfully obtained copy of a work. Anybody have problems with this? Does this have any problems? How would that interact with licenses for libraries ? Dave Have a happy GNU millennium! -- / Dr. David Alan Gilbert| Running GNU/Linux on Alpha,68K| Happy \ \ gro.gilbert @ treblig.org | MIPS,x86,ARM, SPARC and HP-PA | In Hex / \ _|_ http://www.treblig.org |___/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
I'm going to propose a change the Open Source Definition at our board meeting next Thursday. It is simply this: 0) A license may not restrict use or modification of a lawfully obtained copy of a work. Does OSI certify open documentation licenses? If so, I recall there being optional clauses that limit the number of printed copies, or something like that. == ralph PS. I haven't been able to thru to http://www.opensource.org for an hour or so. Packets seem to be stuck in San Jose... Tracing route to opensource.org [209.133.83.21] over a maximum of 30 hops: 153 ms46 ms47 ms gw-081-248.dsl.speakeasy.net [66.93.248.1] 233 ms36 ms34 ms border5.ge3-2.speakeasy-28.chg.pnap.net [64.94.35.212] 335 ms38 ms37 ms core2.fe0-1-bbnet2.chg.pnap.net [64.94.32.66] 435 ms32 ms35 ms 500.Serial2-1.GW1.CHI13.ALTER.NET [157.130.108.85] 534 ms35 ms34 ms 0.so-1-0-0.XL2.CHI13.ALTER.NET [152.63.69.182] 636 ms38 ms35 ms 0.so-2-2-0.XL2.CHI2.ALTER.NET [152.63.70.106] 735 ms37 ms38 ms POS7-0.BR4.CHI2.ALTER.NET [152.63.68.177] 858 ms57 ms57 ms 125.atm12-0.pr1.ord2.us.mfnx.net [208.184.231.49] 960 ms58 ms58 ms so-2-2-0.cr1.ord2.us.mfnx.net [208.185.0.189] 1058 ms58 ms59 ms pos5-0.mpr1.dfw2.us.mfnx.net [208.184.233.149] 1187 ms86 ms90 ms pos13-0.cr7.sjc2.us.mfnx.net [208.184.232.82] 1287 ms89 ms90 ms so-6-2-0.mpr3.sjc2.us.mfnx.net [64.125.30.6] 1389 ms88 ms87 ms pos2-0.mpr2.sjc1.us.mfnx.net [208.184.102.205] 14 *** Request timed out. 15 *** Request timed out. etc. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: a proposed change to the OSD
Do you really mean: A license may not restrict use or modification by the possessor of a lawfully obtained copy of a work. On the other hand, this provision, either your wording or mine, might conflict with the following provision in the OSL: 5) External Deployment. The term External Deployment means the use or distribution of the Original Work or Derivative Works in any way such that the Original Work or Derivative Works may be accessed or used by anyone other than You, whether the Original Work or Derivative Works are distributed to those persons, made available as an application intended for use over a computer network, or used to provide services or otherwise deliver content to anyone other than You. As an express condition for the grants of license hereunder, You agree that any External Deployment by You shall be deemed a distribution and shall be licensed to all under the terms of this License, as prescribed in section 1(c) herein. /Larry -Original Message- From: Russell Nelson [mailto:nelson;crynwr.com] Sent: Friday, October 25, 2002 2:44 PM To: [EMAIL PROTECTED] Cc: [EMAIL PROTECTED] Subject: a proposed change to the OSD I'm going to propose a change the Open Source Definition at our board meeting next Thursday. It is simply this: 0) A license may not restrict use or modification of a lawfully obtained copy of a work. Anybody have problems with this? Does this have any problems? -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- 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: a proposed change to the OSD
From: Dr. David Alan Gilbert [EMAIL PROTECTED] Well I was thinking about GPL on libraries since that restricts what you are allowed to link the library against; (No I'm not trying to get into an argument about the merits or not of this). Copyright law spells out a number of rights, including use and creation of derived works. GPL attempts to restrict the creation of derived works and contends that linking creates a derived work. This position is not a use restriction, but may not be enforcible in court - we need more cases to know for sure. Other licenses, like Larry's latest effort, do this with something that is more clearly enforcible but rely on a use restriction. Thanks Bruce -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
Ralph Mellor writes: PS. I haven't been able to thru to http://www.opensource.org for an hour or so. Packets seem to be stuck in San Jose... Yes, Brian Behlendorf's server was not healthy earlier today. I'm sure that he's working on fixing it. Oh, and I only CC'ed Bruce Perens because he had said that he was going to propose language for a 'use' change to the OSD. I figured that he would want a chance to contribute his thoughts. That doesn't mean, on the other hand, that everybody should explicitly CC him! In general, when you're replying to a list, use your email program's Reply To List function[1]. Or, if it doesn't have one, ask your email program's author to create one. It's not like mailing lists are new, or passe, either. [1] which is actually, when you go to implement it, the same as Reply to Recipient, which is probably why it's implemented less often than one would hope. -- -russ nelson http://russnelson.com | Crynwr sells support for free software | PGPok | businesses persuade 521 Pleasant Valley Rd. | +1 315 268 1925 voice | governments coerce Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: a proposed change to the OSD
To OSI License Discussion subscribers, From: Russell Nelson [EMAIL PROTECTED], I'm going to propose a change the Open Source Definition at our board meeting next Thursday. It is simply this: 0) A license may not restrict use or modification of a lawfully obtained copy of a work. Anybody have problems with this? Does this have any problems? We need to clarify to what extent this goes. If this is simply stating that an OSI-certified license must allow people to use and modify copies of Open Source works they have received lawfully, then it won't make a large difference to the existing license landscape, since no-one here that I know of would give props to a license that contained such restrictions. If, however, this clause goes further into saying that no conditions can be imposed on the use or modification of copies of Open Source works that people have received lawfully, then we have to contend with a number of license invalidations (by this I mean licenses no longer being OSD-compliant). As has already been noted, the GPL and LGPL licenses, which are perhaps the most widely-used of all, could be invalidated by this. Perhaps adding the term 'reasonable' to the clause would help. However, this means that, in addition to evaluating the terms of submitted licenses and their implications, we would also have to evaluate the intended application of those licenses. I doubt that we could agree on whether or not that falls within the purview of this list. We are back at the familiar crossroads, where one path leads to the moral high ground, and the other leads to practical feasibility. Until this issue is clarified, we won't know which path to take, but I suspect the latter is the well-beaten one. Cheers, Nathan. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
