Re: [License-discuss] License Stewards
Quoting Kuno Woudt ([email protected]): > Considering this in an international context, it still seems better > to explicitly license the license text. Is there any harm in doing > so? {shrug} 'Harm' is whatever the observer doesn't like, nei? ;-> As with all licensing, the licence is a tool aimed at some particular effect that the licensor is aiming to achieve. Licensors who want to permit particular types of derivative works will probably[1] grant the right to do so, with or without OSI (or my, or your) urging. Licensors who are unwilling -- and my recollection is that many are unwilling -- won't. [1] Or maybe not. Couldn't hurt to remind drafters of new licences of the possibility, I guess. ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
On Fri, Oct 05, 2012 at 02:22:21PM -0700, Ben Reser wrote: > On Fri, Oct 5, 2012 at 12:43 PM, Chad Perrin wrote: > > I think you mean it's not likely to be in front of a judge if the license > > steward *means* that. If the license steward *says* it, but doesn't > > really mean it (or changes his/her mind), (s)he may try suing anyway. > > I meant what I said. I don't imagine there are very many license > stewards running around saying things they don't mean. > > As I've already pointed out I've allowed room for the possibility of > things going awry in what I said already. > > But as it stands, let's assume it does get before a court. I'm pretty > sure before the court would even end up bothering looking at the > copyright issue it'd have to deal with the promissory estoppel. > > So why are we wasting our time talking about something that would have > to have the following unlikely occurrences happen to matter: > > 1) License steward says something they didn't mean. > 2) Despite what they said license steward decides to go to court. Maybe it's still being discussed because most of us can't afford things getting to step 2, regardless of the strength of our defense. -- Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ] signature.asc Description: Digital signature ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
Hello, On 10/05/2012 08:27 AM, Rick Moen wrote: Quoting Kuno Woudt ([email protected]): Even if this is true, someone aiming to re-use the license text for a new license may not want to rely on it. I have my doubts about licences lacking expressive elements as that concept is defined in copyright law, FWIW. I certainly expect there to be a set of licenses which do not have enough expressive elements. But my impression is that the bar is very low here in the Netherlands, you only need a bare minimum of creative expression in a work to qualify for copyright protection [2]. It seems better for the license steward to either explicitly state that they regard the license text as functional and not copyrightable or to just license the license text appropriately. Er, the licence steward's opinion on that substantive legal question (such as it is) strikes me as lacking relevance. Either the licence as a work is copyrightable in accordance with its own separate nature, or it isn't. The judge isn't going to ask the licence steward what he/she thinks, but instead will analyse the work. Over here, things are not that clear cut. Under dutch law a judge will not look at just the literal text of a contract, but also the intent of the text as it was understood by the parties at the time, and what the parties could reasonably expect from each other (The so-called Haviltex formula [1]). I expect this would apply to copyright licenses as well (though I could very well be wrong, I am still not a lawyer). Considering this in an international context, it still seems better to explicitly license the license text. Is there any harm in doing so? -- kuno / warp. [1] https://nl.wikipedia.org/wiki/Haviltex [2] https://nl.wikipedia.org/wiki/Van_Dale/Romme-arrest (sorry, links are in dutch. I haven't found good english descriptions of either of these cases). ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
On Fri, Oct 5, 2012 at 12:43 PM, Chad Perrin wrote: > I think you mean it's not likely to be in front of a judge if the license > steward *means* that. If the license steward *says* it, but doesn't > really mean it (or changes his/her mind), (s)he may try suing anyway. I meant what I said. I don't imagine there are very many license stewards running around saying things they don't mean. As I've already pointed out I've allowed room for the possibility of things going awry in what I said already. But as it stands, let's assume it does get before a court. I'm pretty sure before the court would even end up bothering looking at the copyright issue it'd have to deal with the promissory estoppel. So why are we wasting our time talking about something that would have to have the following unlikely occurrences happen to matter: 1) License steward says something they didn't mean. 2) Despite what they said license steward decides to go to court. 3) License steward finds a lawyer that actually will take this to court despite what they said. 4) Court decides that what they said wasn't a promissory estoppel. 5) Now we can talk about if the copyright license is copyrighted. That's not to say that it'll never happen or can't happen. Just that I don't see the point in discussing it. The circumstances without any sort of statement about the copyright status from a license steward gets to the core of what is being discussed on this thread and doesn't end up wasting our time discussing this. Ironically my attempt to point this out seems to have driven us further down the wasted path of discussing this. ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
On Fri, Oct 05, 2012 at 08:21:14AM -0700, Ben Reser wrote: > On Thu, Oct 4, 2012 at 11:27 PM, Rick Moen wrote: > > Er, the licence steward's opinion on that substantive legal question > > (such as it is) strikes me as lacking relevance. Either the licence as > > a work is copyrightable in accordance with its own separate nature, or > > it isn't. The judge isn't going to ask the licence steward what he/she > > thinks, but instead will analyse the work. > > It's not likely to be in front of a judge if the license steward says that. I think you mean it's not likely to be in front of a judge if the license steward *means* that. If the license steward *says* it, but doesn't really mean it (or changes his/her mind), (s)he may try suing anyway. -- Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ] signature.asc Description: Digital signature ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
Quoting Ben Reser ([email protected]): > > Anyway, that's an affirmative defence: It doesn't prevent litigation. > > I did say likely. Specifically, you said no such licence was likely to 'be in front of a judge', without saying exactly why you believed this. In my experience, copyright infringement litigation can arise (come in front of a judge) in quite a number of ways and for a number of reasons, even where defendant thinks he/she might have a useful legal defence such as estoppel -- completely aside from any doubts one might entertain about licence stewards' opinions about copyrightability qualifying in the latter category. Your Mileage May Differ.[tm] ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
Rick Moen wrote: > I certainly never turn up my nose if someone offers me promissory > estoppel, but I'm not sure a licence steward venting an amateur > opinion[1] about the copyrightability of his/her creation establishes > estoppel. Let me suggest a way around this issue. Remember that I started this thread after someone at Apache asked for permission to modify our license. It would help everyone if we could simply point to the OSI website and say that "Every open source license published on the OSI website (including the Apache License) is distributed by OSI under CC0. Help yourself! Knock yourself out!" Is there any license steward who would care (or is alive to care) about OSI simply making that declaration on its website -- and, by the way, taking responsibility for doing so on behalf of all open source license authors who are dead or don't care? Then every OSI-approved license could serve as a model license. If OSI did that, then Apache and others could simply refer anyone who feels the urge to modify our open source license to come here for model agreements. That would also be an opportune time to dissuade people from actually doing so by educating them about the horrors of license proliferation. /Larry ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
On Fri, Oct 5, 2012 at 10:52 AM, Rick Moen wrote: > I certainly never turn up my nose if someone offers me promissory > estoppel, but I'm not sure a licence steward venting an amateur opinion[1] > about the copyrightability of his/her creation establishes estoppel. > > Anyway, that's an affirmative defence: It doesn't prevent litigation. I did say likely. > Also, I thought you were among those people interested in whether > software licence texts are copyright-eligible, in which case you're > digressing quite a bit. (No objection: This is the Internet after > all.) I haven't said anything on this thread previously and what I did say wasn't sufficient to give that impression. ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
Quoting Ben Reser ([email protected]): > It's not likely to be in front of a judge if the license steward says that. I certainly never turn up my nose if someone offers me promissory estoppel, but I'm not sure a licence steward venting an amateur opinion[1] about the copyrightability of his/her creation establishes estoppel. Anyway, that's an affirmative defence: It doesn't prevent litigation. Also, I thought you were among those people interested in whether software licence texts are copyright-eligible, in which case you're digressing quite a bit. (No objection: This is the Internet after all.) But I'm starting to suspect why Larry hasn't chosen to comment. ;-> [1] Or even an expert one, as in Larry Rosen's case. ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
On Thu, Oct 4, 2012 at 11:27 PM, Rick Moen wrote: > Er, the licence steward's opinion on that substantive legal question > (such as it is) strikes me as lacking relevance. Either the licence as > a work is copyrightable in accordance with its own separate nature, or > it isn't. The judge isn't going to ask the licence steward what he/she > thinks, but instead will analyse the work. It's not likely to be in front of a judge if the license steward says that. ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
Quoting Kuno Woudt ([email protected]): > Even if this is true, someone aiming to re-use the license text for > a new license may not want to rely on it. I have my doubts about licences lacking expressive elements as that concept is defined in copyright law, FWIW. > It seems better for the license steward to either explicitly state > that they regard the license text as functional and not > copyrightable or to just license the license text appropriately. Er, the licence steward's opinion on that substantive legal question (such as it is) strikes me as lacking relevance. Either the licence as a work is copyrightable in accordance with its own separate nature, or it isn't. The judge isn't going to ask the licence steward what he/she thinks, but instead will analyse the work. ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
Hello, On 10/05/2012 01:04 AM, Rick Moen wrote: Quoting Grahame Grieve ([email protected]): well, ok, but on what grounds would copyright not apply? I believe Larry was asserting his view that a software licence consists solely of functional elements, and no expressive (artistic) elements (or not enough that a judge would recognise copyright eligibility). Even if this is true, someone aiming to re-use the license text for a new license may not want to rely on it [1]. It seems better for the license steward to either explicitly state that they regard the license text as functional and not copyrightable or to just license the license text appropriately. -- kuno / warp. ps. [1] Especially when considered in an international context, I expect a dutch court to regard a license text such as Apache v2 or GPLv2 to be copyrightable, but IANAL. ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
Quoting Ben Tilly ([email protected]): > There is logic, and then there is the trend of the United States Court > of Appeals for the Federal Circuit setting precedents making virtually > anything and everything patentable subject matter. The Federal Circuit has been notably expansionist on subject-matter issues in a half-dozen or so area, but the smart money would nonetheless not back a filing approximating 'Well, you permitted patenting DNA sequence and tax strategies, so why not software licensing techniques?' ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
On Thu, Oct 4, 2012 at 5:35 PM, Rick Moen wrote: > Quoting Ben Tilly ([email protected]): > >> This makes me wonder whether clever license terms would be patentable >> under US law. > > So, Ben: What did you determine when you measured that notion against, > say... > > https://en.wikipedia.org/wiki/Patentable_subject_matter#United_States > > ? There is logic, and then there is the trend of the United States Court of Appeals for the Federal Circuit setting precedents making virtually anything and everything patentable subject matter. Your phrase "a software licence consists solely of functional elements" just triggered cynicism on my part that the CAFC could take that idea as a basis to try and expand patents. Yet again. ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
Quoting Ben Tilly ([email protected]): > This makes me wonder whether clever license terms would be patentable > under US law. So, Ben: What did you determine when you measured that notion against, say... https://en.wikipedia.org/wiki/Patentable_subject_matter#United_States ? ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
Quoting Grahame Grieve ([email protected]): > GPL isn't a work of art? > > ! Larry's view (if I understood him correctly, and I think I do), so he'd have to be the one to elaborate (if he cares to). As with so many other things, in my experience, the best way to understand the copyright-legal dichotomy between expressive and functional elements is to read relevant caselaw. Arguing that something is a work of art might make you feel better, but ;-> ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
On Thu, Oct 4, 2012 at 4:04 PM, Rick Moen wrote: > Quoting Grahame Grieve ([email protected]): > >> well, ok, but on what grounds would copyright not apply? > > I believe Larry was asserting his view that a software licence consists > solely of functional elements, and no expressive (artistic) elements (or > not enough that a judge would recognise copyright eligibility). > > That's a fundamental concept in USA copyright law; I have no idea how > many other jurisdictions have it. Hmmm. This makes me wonder whether clever license terms would be patentable under US law. ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
GPL isn't a work of art? ! Grahame On Fri, Oct 5, 2012 at 9:04 AM, Rick Moen wrote: > Quoting Grahame Grieve ([email protected]): > >> well, ok, but on what grounds would copyright not apply? > > I believe Larry was asserting his view that a software licence consists > solely of functional elements, and no expressive (artistic) elements (or > not enough that a judge would recognise copyright eligibility). > > That's a fundamental concept in USA copyright law; I have no idea how > many other jurisdictions have it. > ___ > License-discuss mailing list > [email protected] > http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss -- - http://www.healthintersections.com.au / [email protected] / +61 411 867 065 ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
Quoting Grahame Grieve ([email protected]): > well, ok, but on what grounds would copyright not apply? I believe Larry was asserting his view that a software licence consists solely of functional elements, and no expressive (artistic) elements (or not enough that a judge would recognise copyright eligibility). That's a fundamental concept in USA copyright law; I have no idea how many other jurisdictions have it. ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
> Unfortunately, fair use only covers YOUR use of the license. If you then > publish that modified license and distribute it, you are in some sense > intentionally detracting from the market for the original license (as a > copyright court might analyze the fair use factors). On the other hand, if > copyright doesn't apply at all then your use and your licensees use of your > license need not even be "fair". well, ok, but on what grounds would copyright not apply? > An appeals court analyzed a somewhat similar situation in Veeck v. Southern > Building Code Congress International, 293 F.3d 791 (5th Cir., 2002) (cert. > denied). > [http://bulk.resource.org/courts.gov/c/F3/293/293.F3d.791.99-40632.html]. > This is one of my favorite cases. It puts standards organizations on notice > that, at least in the Fifth Circuit, they can't own the law. how is this similar? if the copyright statement is referenced in law, you mean? isn't that a bit implausible? Grahame ___ License-discuss mailing list [email protected] http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] License Stewards
Grahame Grieve suggested: > in the absence of a license statement on a license itself, > then the license can only be re-used under the terms of fair use Unfortunately, fair use only covers YOUR use of the license. If you then publish that modified license and distribute it, you are in some sense intentionally detracting from the market for the original license (as a copyright court might analyze the fair use factors). On the other hand, if copyright doesn't apply at all then your use and your licensees use of your license need not even be "fair". An appeals court analyzed a somewhat similar situation in Veeck v. Southern Building Code Congress International, 293 F.3d 791 (5th Cir., 2002) (cert. denied). [http://bulk.resource.org/courts.gov/c/F3/293/293.F3d.791.99-40632.html]. This is one of my favorite cases. It puts standards organizations on notice that, at least in the Fifth Circuit, they can't own the law. /Larry Lawrence Rosen Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com) 3001 King Ranch Rd., Ukiah, CA 95482 Office: 707-485-1242 -Original Message- From: Grahame Grieve [mailto:[email protected]] Sent: Wednesday, October 03, 2012 1:45 PM To: [email protected]; [email protected] Subject: Re: [License-discuss] License Stewards in the absence of a license statement on a license itself, then the license can only be re-used under the terms of fair use, just like anything else that is published without a license? Grahame On Thu, Oct 4, 2012 at 5:44 AM, Lawrence Rosen wrote: > A recent thread on the legal-discuss@ list at Apache asked whether > someone could take the Apache License 2.0 and revise it for their own purposes. > After a side trip I took into the esoteric question about whether a > copyright license could itself be copyrighted, I bring the discussion > to this license-discuss@ list at OSI along with a bit of history. (I'm > copying the legal-discuss@apache list only for closing the circle.) > > > > In the olden days, open source licenses usually contained a copyright > statement and the identification of a "license steward". This person > or organization (e.g., RMS/FSF for the GPL licenses; IBM for the CPL; > and Mitchell Baker at what was then the Mozilla Project for the MPL) > reputedly had exclusive control over future license versions. Indeed, > Mitchell took offense at that time because, without her permission, I > had revised the MPL license into a version I thought was easier to > read and understand (the Jabber license, since deprecated). > > > > Whether or not the license steward role was legally significant, it > certainly raised control issues in the community and created animosity > over license language purity even where personal offense was not > intended. Even though the goal was to change the license for some > presumably good legal effect, some people still took offense when their "own" words were changed. > > > > When I released the AFL/OSL licenses in early drafts, I omitted any > declaration of license steward but I asserted with a copyright notice > that I was the author of those licenses. Several people (including, I > remember, Mitchell Baker) complained that I was claiming control over > a license that people might want to enhance or change. Nobody trusted > that I personally (or my heirs) would forever have the good of the community at heart. > > > > I agreed with them. That was my incentive to write section 16 of those > licenses, which declared authorship but disclaimed control over changes. > This section 16 also carefully prohibited what was then characterized > as "relicensing" of existing works; declared that the name of the > license was exclusive; and reminded the world that only OSI could > bless a revised license as "open source". > > > > Here's what section 16 of the OSL says: > > > > 16) Modification of This License. This License is Copyright C 2005 > Lawrence Rosen. Permission is granted to copy, distribute, or > communicate this License without modification. Nothing in this License > permits You to modify this License as applied to the Original Work or to Derivative Works. > However, You may modify the text of this License and copy, distribute > or communicate your modified version (the "Modified License") and > apply it to other original works of authorship subject to the > following conditions: (i) You may not indicate in any way that your > Modified License is the "Open Software License" or "OSL" and you may > not use those names in the name of your Modified License; (ii) You > must replace the notice specified in the first paragraph above with > the notice &q
Re: [License-discuss] License Stewards
in the absence of a license statement on a license itself, then the license can only be re-used under the terms of fair use, just like anything else that is published without a license? Grahame On Thu, Oct 4, 2012 at 5:44 AM, Lawrence Rosen wrote: > A recent thread on the legal-discuss@ list at Apache asked whether someone > could take the Apache License 2.0 and revise it for their own purposes. > After a side trip I took into the esoteric question about whether a > copyright license could itself be copyrighted, I bring the discussion to > this license-discuss@ list at OSI along with a bit of history. (I’m copying > the legal-discuss@apache list only for closing the circle.) > > > > In the olden days, open source licenses usually contained a copyright > statement and the identification of a “license steward”. This person or > organization (e.g., RMS/FSF for the GPL licenses; IBM for the CPL; and > Mitchell Baker at what was then the Mozilla Project for the MPL) reputedly > had exclusive control over future license versions. Indeed, Mitchell took > offense at that time because, without her permission, I had revised the MPL > license into a version I thought was easier to read and understand (the > Jabber license, since deprecated). > > > > Whether or not the license steward role was legally significant, it > certainly raised control issues in the community and created animosity over > license language purity even where personal offense was not intended. Even > though the goal was to change the license for some presumably good legal > effect, some people still took offense when their “own” words were changed. > > > > When I released the AFL/OSL licenses in early drafts, I omitted any > declaration of license steward but I asserted with a copyright notice that I > was the author of those licenses. Several people (including, I remember, > Mitchell Baker) complained that I was claiming control over a license that > people might want to enhance or change. Nobody trusted that I personally (or > my heirs) would forever have the good of the community at heart. > > > > I agreed with them. That was my incentive to write section 16 of those > licenses, which declared authorship but disclaimed control over changes. > This section 16 also carefully prohibited what was then characterized as > “relicensing” of existing works; declared that the name of the license was > exclusive; and reminded the world that only OSI could bless a revised > license as “open source”. > > > > Here’s what section 16 of the OSL says: > > > > 16) Modification of This License. This License is Copyright © 2005 Lawrence > Rosen. Permission is granted to copy, distribute, or communicate this > License without modification. Nothing in this License permits You to modify > this License as applied to the Original Work or to Derivative Works. > However, You may modify the text of this License and copy, distribute or > communicate your modified version (the "Modified License") and apply it to > other original works of authorship subject to the following conditions: (i) > You may not indicate in any way that your Modified License is the "Open > Software License" or "OSL" and you may not use those names in the name of > your Modified License; (ii) You must replace the notice specified in the > first paragraph above with the notice "Licensed under name here>" or with a notice of your own that is not confusingly similar to > the notice in this License; and (iii) You may not claim that your original > works are open source software unless your Modified License has been > approved by Open Source Initiative (OSI) and You comply with its license > review and certification process. > > > > Most licenses nowadays omit declarations of license stewardship and don’t > even mention the ownership of future derivative versions. For example – and > this was the gist of the question on the Apache legal-discuss@ list – the > Apache License 2.0 says nothing about the right to create derivative > versions of the license. > > > > In this ambiguous situation, what is the default rule for derivative works > of open source licenses? My assertion is that all open source licenses may > freely be copied or modified into different versions; permission from a > license steward is never necessary to do that because these are functional > legal documents for which copyright protection is inappropriate. (In an > email at Apache, I characterized my copyright notice on my own licenses as > “chutzpah”.) Without OSI approval, however, nobody responsible will call the > modified license an “open source license”. > > > > Do you agree? > > > > /Larry > > > > Lawrence Rosen > > Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com) > > 3001 King Ranch Rd., Ukiah, CA 95482 > > Office: 707-485-1242 > > > > > ___ > License-discuss mailing list > [email protected] > http://projects.opensource.org/cgi-bin/mailman/listinfo/license-
