Re: [License-discuss] Open Source Eventually License Development

2015-05-29 Thread Zooko Wilcox-OHearn
Dear folks:

At long last I went ahead and took Bradley Kuhn's suggestion to
reimplement TGPPL as an added permission on GPL. Richard Fontana has
been kind enough to submit a pull request.

Please review!

https://github.com/zooko/tgppl

Regards,

Zooko
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Re: [License-discuss] Open Source Eventually License Development

2013-08-27 Thread Al Foxone
PMFJI, but I really don't understand the key part of TGPPL:

... copies of Original Work or Derivative Works that You distribute
or communicate shall be licensed under this Transitive Grace Period
Public Licence no later than 12 months after You distributed or
communicated said copies

AFAIK, a copyright license is about permissions regarding intangables,
not copies (as in material objects see 17 U.S.C. 101).

The wording regarding copies is in conflict with 17 U.S.C. 109 as well.

What am I missing here?

On Sat, Aug 24, 2013 at 1:15 AM, zooko zo...@zooko.com wrote:
 Folks:

 I offer the following assertions about the Transitive Grace Period Public
 Licence (TGPPL) [1, 2].

 * TGPPL is a Free Software and Open Source licence. (As I've argued: [3, 4].)

 * It is not redundant with any existing Free+Open licence. (As I've argued:
   [5, 2].)

 * It is not like the practice that Aladdin Software had of releasing older
   versions under a Free+Open licence. (As I've argued: [5].)

 * It is currently in active use [6].


 I hereby make the following requests:

 * Help me think of problems or issues with this licence that I'm not already
   aware of.

 * Help me improve the licence for future revisions.

 * Register TGPPL in the lists of Open Source Licences [7] and Free Software
   Licences [8].

 * Consider incorporating The Transitive Grace Period idea into future Free
   and Open licences such as future revisions of GPL or copyleft-next. 
 (Although
   according to Bradley Kuhn's and Richard Fontana's recent letters, that may 
 be
   off-topic for this list.)


 You may be interested in the fact that my startup has just announced our first
 commercial product, which is the (Free and Open) Tahoe-LAFS software:

 https://leastauthority.com/blog/category/press-releases.html

 You may also be interested in this related conversation, about the importance
 of software distribution and licensing, among other things, in today's world 
 of
 ubiquitous surveillance:

 https://leastauthority.com/blog/open_letter_silent_circle.html

 http://lists.randombit.net/pipermail/cryptography/2013-August/005095.html

 Regards,

 Zooko

 [1] https://tahoe-lafs.org/trac/tahoe-lafs/browser/trunk/COPYING.TGPPL.rst
 [2] https://tahoe-lafs.org/~zooko/tgppl.pdf
 [3] 
 http://projects.opensource.org/pipermail/license-discuss/2013-August/001087.html
 [4] 
 http://projects.opensource.org/pipermail/license-discuss/2013-August/001088.html
 [5] 
 http://projects.opensource.org/pipermail/license-discuss/2013-August/001169.html
 [6] https://tahoe-lafs.org/pipermail/tahoe-dev/2013-July/008610.html
 [7] http://opensource.org/licenses/
 [8] https://www.gnu.org/licenses/license-list.html
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Re: [License-discuss] Open Source Eventually License Development

2013-08-26 Thread Richard Stallman
[ To any NSA and FBI agents reading my email: please consider
[ whether defending the US Constitution against all enemies,
[ foreign or domestic, requires you to follow Snowden's example.

Now I see what you're trying to do.  The TGPPL is an interesting idea.

-- 
Dr Richard Stallman
President, Free Software Foundation
51 Franklin St
Boston MA 02110
USA
www.fsf.org  www.gnu.org
Skype: No way! That's nonfree (freedom-denying) software.
  Use Ekiga or an ordinary phone call.

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Re: [License-discuss] Open Source Eventually License Development

2013-08-24 Thread Engel Nyst

On 08/21/2013 07:27 PM, zooko wrote:

I think I already have this with the Tahoe-LAFS codebase, because of the way
that it is dual-licensed under TGPPL v1+ or GPLv2+ at your option. It satifsies
(i), because B can use a1 under the TGPPL. It satisfies (ii), because B can use
a1 under the GPL. It satisfies (iii), because the TGPPL does not allow B to
keep b1 proprietary-for-a-limited-time and then license b1 under GPL to C.

The only (?) downside to this scheme is the possibility of a licence-fork:
someone could take a1 (e.g. the current version of Tahoe-LAFS) under either GPL
or TGPPL and release a dervied work (b1) under GPL-only, or under TGPPL-only,
and then downstream users from them would not have the dual-licence option.


I don't see how is this only a possibility, I think it's a certitude of 
a license-fork: B *has* to license under TGPPL-only, if they want 
proprietary-for-a-limited-time option. If, during the 1st year, B would 
dual-license b1, then C (and A) who receive b1 could want it under GPL. 
B doesn't want that, and can't say I have the right under GPL to make 
you wait an year.

So downstream from B only receives b1 under TGPPL.
(excluding if B has licensing rights to additionally re-add GPL after 
one year, but I feel that's entirely different)


Am I missing something?
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Re: [License-discuss] Open Source Eventually License Development

2013-08-23 Thread fred trotter
Excuse me for my absence, I am having trouble managing a substantial
increase in my inbound email. I must beg forgiveness twice since I know
full well that so many on this thread receive much more email than I do.

To remain productive, I would like to remind everyone what my goals are
here: I want to create a trusted mechanism for doing this that the
community will tolerate. I am not trying to convince anyone here that this
is a good idea. I am not convinced that this is a good idea myself. I do
know that this is happening, however. Monty is recommending this method for
companies that he invests in and my investors are demanding the same for my
company.

I would also like to point out that my current strategy includes 3
licenses, not just a single special proprietary one.

1. The OSE License (what Monty and I are building) - un-revokable
2. The current license - a proprietary license that sets restrictions -
revokable... currently...
3. The target license - a FOSS license that is automatically reverted to on
a particular date. - un-revokable

Eben is pointing out, (if I understand him correctly) that if the
proprietary license is revoked, then the promise to covert to FOSS cannot
be maintained.

But the whole point here is to try and create an umbrella license, the OSE
license, that makes the transfer to the FOSS license something that cannot
be revoked on a whim. I presume that this should be possible in the same
way that people rely on the GPL to not be revokable, i.e. as long as the
licensee is honoring the terms, the licensor cannot just revoke.

There are two paths that I see as viable to ensure that this
revoke-proofing works:

1. We write the OSE in such a way that it remains en-revokable,
independently of the contents of the proprietary license, which could be
revokable.
2. We write a set of acceptable proprietary licenses that can be used with
the OSE, preventing people from writing custom revokable proprietary
licenses.

I apologize for calling my license a proprietary license. It confuses the
issue. Nothing in the OSE itself either speaks against or in favor of
software freedom. In fact if the current license is the AGPL, and the
target license is the MIT license, it is entirely possible to use the OSE
without ever using a proprietary license at all. What makes the OSE
freedom friendly is the fact that the target license, at least, must be a
libre license, and that there is a reasonable limitation to the duration of
the proprietary license.

As Monty explains, we expect that OSE code will come with sourcecode, which
means that it will enable a community of customers to exchange and
improve code. This seems like an important practical issue that several
brought up. I think it should be explicitly in the license (I think it
already is in Business Source)

Could we please refocus on making this discussion into an actionable list
of things that I should or should not add to the OSE license to make it
better? It is sometime hard to translate the abstract discussion into todo
list items...

-FT


-- 
Fred Trotter
Blog: http://radar.oreilly.com/fredt
Twitter: https://twitter.com/fredtrotter
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Re: [License-discuss] Open Source Eventually License Development

2013-08-23 Thread zooko
On Sun, Aug 18, 2013 at 09:41:31PM -0400, Richard Stallman wrote:
 
 I recommend that anyone using this use it in parallel with GPL 3-or-later, as 
 you have done.  That way, the program can't fail to be free software.  And 
 there is nothing to lose by doing this, since it permits anyone to release a 
 version with trivial modifications under GPL 3-or-later at any time.
 
 What do you think of making that recommendation?

I will recommend that to anyone using TGPPLv1. As I just alluded to in another
post to this list, I'm also working on a TGPPLv2 (with the help and
encouragement of Bradley Kuhn) which would allow anyone to make a derived work
be GPL-licensed. That way anyone using TGPPLv2 would automatically have the
option of switching to GPL, and would not have the option (while still using
TGPPLv2) of preventing downstream users from switching to GPL.

Regards,

Zooko
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Re: [License-discuss] Open Source Eventually License Development

2013-08-23 Thread zooko
Folks:

I'm not sure, but I think some people on this thread might be confusing two
different issues.

Suppose Person A makes a work a1 and licenses it to Person B under licence L,
and then Person B makes a derived work b1 and licenses it to Person C, also
under licence L, and then Person C makes a derived work c1.

Some of the discussion on this thread seems to be about what obligations Person
A has to Person B. That's the first of the two issues.

The oft-cited example of the Aladdin Software releasing older versions of
Ghostscript under GPL is about the relationship between Person A and Person B.

That's not what I'm concerned about. What I think is important, and the reason
I wrote and used the Transitive Grace Period Public Licence, is about the
relationship between Person B and Person C.

If Person A released a1 under the GPL (either immediately or after a delay --
it makes no difference to this), then this gives Person B certain options for
how they can use work a1, and how they can license work b1. Namely, it grants
them permission to make their derived work provided that they license it to
Person C (and everyone) under GPL, and therefore that they grant Person C full
permissions to b1 immediately upon redistributing b1. We could say that Person
B is granted permission to keep b1 proprietary for a duration of 0 months.

If Person A released a1 under a permissive licence, then this grants to Person
B the option to keep b1 proprietary for as long as they like. We could say that
Person B is granted permission to keep b1 proprietary for a duration of
infinity months.

If Person A released a1 under the TGPPL, then this gives Person B options
different to either of the other two scenarios above. Now Person B is granted
permission to keep b1 proprietary for a duration of 12 months.

So the effect of the Person A's use of TGPPL on Person B is completely
different from the old Aladdin Software policy.

Regards,

Zooko
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Re: [License-discuss] Open Source Eventually License Development

2013-08-23 Thread zooko
Folks:

I offer the following assertions about the Transitive Grace Period Public
Licence (TGPPL) [1, 2].

* TGPPL is a Free Software and Open Source licence. (As I've argued: [3, 4].)

* It is not redundant with any existing Free+Open licence. (As I've argued:
  [5, 2].)

* It is not like the practice that Aladdin Software had of releasing older
  versions under a Free+Open licence. (As I've argued: [5].)

* It is currently in active use [6].


I hereby make the following requests:

* Help me think of problems or issues with this licence that I'm not already
  aware of.

* Help me improve the licence for future revisions.

* Register TGPPL in the lists of Open Source Licences [7] and Free Software
  Licences [8].

* Consider incorporating The Transitive Grace Period idea into future Free
  and Open licences such as future revisions of GPL or copyleft-next. (Although
  according to Bradley Kuhn's and Richard Fontana's recent letters, that may be
  off-topic for this list.)


You may be interested in the fact that my startup has just announced our first
commercial product, which is the (Free and Open) Tahoe-LAFS software:

https://leastauthority.com/blog/category/press-releases.html

You may also be interested in this related conversation, about the importance
of software distribution and licensing, among other things, in today's world of
ubiquitous surveillance:

https://leastauthority.com/blog/open_letter_silent_circle.html

http://lists.randombit.net/pipermail/cryptography/2013-August/005095.html

Regards,

Zooko

[1] https://tahoe-lafs.org/trac/tahoe-lafs/browser/trunk/COPYING.TGPPL.rst
[2] https://tahoe-lafs.org/~zooko/tgppl.pdf
[3] 
http://projects.opensource.org/pipermail/license-discuss/2013-August/001087.html
[4] 
http://projects.opensource.org/pipermail/license-discuss/2013-August/001088.html
[5] 
http://projects.opensource.org/pipermail/license-discuss/2013-August/001169.html
[6] https://tahoe-lafs.org/pipermail/tahoe-dev/2013-July/008610.html
[7] http://opensource.org/licenses/
[8] https://www.gnu.org/licenses/license-list.html
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Re: [License-discuss] Open Source Eventually License Development

2013-08-22 Thread zooko
On Sun, Aug 18, 2013 at 06:29:26PM -0400, Bradley M. Kuhn wrote:
 Richard Fontana wrote at 08:20 (EDT):
  Not with an exception in the GPLv2 exception sense, and not without the 
  result being (A)GPLv3-incompatible, since under TGPPL each downstream 
  distributor appears to be required to give the grace period.
 
 ISTR that Zooko was willing to drop that requirement for the sake of 
 simplicity.  But maybe I'm misremembering.  Zooko?

Short version:

I'm willing to allow a line of works licensed under TGPPL to eventually give
rise to derived works licensed under GPL. However there is a specific thing
that I'm unwilling to allow: that if I make a work available to you under
TGPPL, that you take advantage of the 12 month grace period for keeping your
derived work proprietary, and then deny the grace period option to derivors
immediately downstream from you.

I think both of the above are already achieved by Tahoe-LAFS's currently
dual-licence (in which you may use Tahoe-LAFS under GPL or TGPPL at your
option).

I currently think it is possible to achieve both of the above in a future
version of TGPPL, by saying: this is my work, it is licensed to you under
TGPPL, the TGPPL stipulates that you can use my work only if you either (a)
license your derived work under GPL *immediately* (just as standard GPL
requires), or (b) license your derived work under TGPPL within 12 months.


Long version:

Suppose that person A produces work a1 and licenses it to person B under this
licence, and person B produces a work b1 derived from a1, and then person C
wishes to produce a work derived from b1.

I want all of the following:

i. B has the option to keep b1 proprietary for a limited time (12 months).

ii. B has the option to *instead of making b1 proprietary for a limited time*
to make b1 be unmodified-(A)GPLv3-licensed.

iii. B does not have the option to make b1 proprietary-for-a-limited-time and
then subsequently license b1 as unmodified-(A)GPLv3-licensed, thus denying to
person C the option to make c1 be proprietary-for-a-limited-time.

I think I already have this with the Tahoe-LAFS codebase, because of the way
that it is dual-licensed under TGPPL v1+ or GPLv2+ at your option. It satifsies
(i), because B can use a1 under the TGPPL. It satisfies (ii), because B can use
a1 under the GPL. It satisfies (iii), because the TGPPL does not allow B to
keep b1 proprietary-for-a-limited-time and then license b1 under GPL to C.

The only (?) downside to this scheme is the possibility of a licence-fork:
someone could take a1 (e.g. the current version of Tahoe-LAFS) under either GPL
or TGPPL and release a dervied work (b1) under GPL-only, or under TGPPL-only,
and then downstream users from them would not have the dual-licence option.

In light of the licence-fork problem, I add below desiderata (iv) and (v). I
don't believe it is possible to achieve desideratum (v) so I'm willing to
forego it.

iv. (No licence-fork away from GPL) B does not have the option to distribute,
or to host for the use of others, b1 without C eventually (within 12 months)
gaining the unmodified-(A)GPL-licence to use b1.

[not achievable] v. (No licence-fork away from TGPPL) B does not have the
option to distribute, or to host for the use of others, b1 without C eventually
(within 12 months) gaining TGPPL-rights to use b1.

Regards,

Zooko

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Re: [License-discuss] Open Source Eventually License Development

2013-08-22 Thread Michael Widenius

Hi!

 Clark == Clark C Evans c...@clarkevans.com writes:

 Here is an example Business Source license...
Clark Your proposal is an evaluation/crippled non-free license till a
Clark particular 
Clark date, where upon it is automatically gifted under the GPL-3-or-later.  
Clark If this is the case, I wouldn’t bother with this complexity; I'd just
Clark write
Clark this on your website and be done with it.

 A. Pre-Change Terms: License, before 01 January 2015
Clark (evaluation/crippleware non-free license)
 B. Post-Change Terms: License after, and including, 01 January 2015:
Clark (GPL-v3-or-later)

It would not work to do this on the web site as the date is different
for each release (assuming you have a 1 year delay for each version of
the software).

Clark I think this approach has an insurmountable practical adoption 
Clark issue -- your work would never be in any free software distributions 
Clark under the initial non-free license: if you're work is mediocre, it'll be 
Clark ignored; while, if it's really good, it'll get free software
Clark competitors.

The whole point in this discussion is that if there is no money to pay
for the salaries to developers there is no software.

In other words, it's as unlikely that there will be free software
competitors for this works as there is free software competitors for
any other software.

Whether we like it or not, most produced software nowadays is closed
source (especially from smaller companies). Just look at all the apps
at Android or Iphone. Only a fraction are open source.

We need to find a way to get money to pay full time developers, and in
the open source world the only resonable ways to do that (that I know
of) is dual licenses (that only works for infrastructure software) or
time delayed open source.

(Doing consulting or services on the side doesn't work; You can't make
enough money on this to have a big full time developer team).

Clark In all of these scenarios you marginalize marketing value and 
Clark potential collaboration.

I disagree.  It's true that with delayed open source you will not get
into all distributions, but you will get a much bigger user base than
by being closed source or open core.

Clark This strategy might be modestly successful if the date is soon, and,
Clark if it's clear that you won't move the goal post with subsequent versions
Clark of the work.  That is, if you've developed the work in a public
Clark repository

That is basicly what I am propsoing with Business source.

Clark and, your next version is keeping the date promise as it approaches.

For each release the new date is X years from the release date.

Clark However, I don't see how this solves your revenue concern.

The same way as closed source companies makes money.

The point here is to find a way to develop (eventually) open source
software but get similar revenue streams as closed source software.

Regards,
Monty
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Re: [License-discuss] Open Source Eventually License Development

2013-08-20 Thread Lawrence Rosen
John Cowan wrote:
 Of course, the more such reassurances you add, the more complexity 
 and uncertainty you interject into the situation: the price of infinite 
 precision is infinite verbosity, as we say in Lojbanistan, and adding
 more terms, while helpful to the sympathetic, just provides a bigger 
 attack surface for the bad guys.  (Not for nothing am I my father's son.)

Indeed I wish I were, like your father, paid by the word. Or paid by any
other measure here 

Thanks for playing Huxley, although the rest of the comparison is inapt. 

/Larry


-Original Message-
From: John Cowan [mailto:co...@mercury.ccil.org] 
Sent: Sunday, August 18, 2013 11:37 AM
To: Lawrence Rosen
Cc: 'Eben Moglen'; license-discuss@opensource.org; mark.atw...@hp.com;
ka...@gnome.org; r...@gnu.org; nat...@gonzalezmosier.com; mo...@askmonty.org
Subject: Re: [License-discuss] Open Source Eventually License Development
snip

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Re: [License-discuss] Open Source Eventually License Development

2013-08-20 Thread Lawrence Rosen
John Cowan correctly observed:
 ... there is no escape from the dreaded § 203(a)(5), which explicitly 
 says that you can't contract out of it.

Section 203(a) is only a *conditional* termination. The licensor must take
affirmative steps within a designated and brief period of time [1] to
exercise that right of termination.  Furthermore, it doesn't apply to a work
made for hire. 

Almost everyone ignores this section of the U.S. Copyright Act for
commercial software licensing transactions, which almost all are nowadays.
But please remind software copyright lawyers to get malpractice insurance
with a thirty-five year tail period.

We should be more fearful of the 20-year patent monopoly.

/Larry

[1] Five years beginning at the end of thirty-five years from the date of
publication or execution of the grant. 17 USC 203(a)(3).  



-Original Message-
From: John Cowan [mailto:co...@mercury.ccil.org] 
Sent: Sunday, August 18, 2013 11:37 AM
To: Lawrence Rosen
Cc: 'Eben Moglen'; license-discuss@opensource.org; mark.atw...@hp.com;
ka...@gnome.org; r...@gnu.org; nat...@gonzalezmosier.com; mo...@askmonty.org
Subject: Re: [License-discuss] Open Source Eventually License Development
snip

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Re: [License-discuss] Open Source Eventually License Development

2013-08-20 Thread John Cowan
Lawrence Rosen scripsit:

 Indeed I wish I were, like your father, paid by the word. Or paid
 by any other measure here

Eh?  He was paid by the semester by the New Jersey taxpayers.  His
articles weren't paid for at all.  Are you googling the wrong Tom Cowan?

 Thanks for playing Huxley, although the rest of the comparison is inapt. 

I thought you'd say that.  See Asimov v. Bova (Jewish guilt and Italian
guilt), settled out of court.

-- 
I could dance with you till the cowsJohn Cowan
come home.  On second thought, I'd  http://www.ccil.org/~cowan
rather dance with the cows when you co...@ccil.org
come home.  --Rufus T. Firefly
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Re: [License-discuss] Open Source Eventually License Development

2013-08-20 Thread Lawrence Rosen
John Cowan protested:
 Eh?  [John's father] was paid by the semester by the New Jersey taxpayers.

 His articles weren't paid for at all.  Are you googling the wrong Tom
Cowan?

Unfortunately I didn't Google at all. I just did Google that name, though,
and found one of his name, also a lawyer, who was indicted for tax
evasion!  I only remembered you mentioning your father's profession before
and assumed, based on my experience with you, that your father was no slouch
as a lawyer. I assumed he earned his fees.

Obviously taxpayers pay lawyers by the word. Why else are statutes and
regulations and law professors' articles so prolix?

/Larry


-Original Message-
From: John Cowan [mailto:co...@mercury.ccil.org] 
Sent: Sunday, August 18, 2013 2:05 PM
To: Lawrence Rosen
Cc: 'Eben Moglen'; license-discuss@opensource.org; mark.atw...@hp.com;
ka...@gnome.org; r...@gnu.org; nat...@gonzalezmosier.com; mo...@askmonty.org
Subject: Re: [License-discuss] Open Source Eventually License Development

Lawrence Rosen scripsit:

 Indeed I wish I were, like your father, paid by the word. Or paid 
 by any other measure here

Eh?  He was paid by the semester by the New Jersey taxpayers.  His articles
weren't paid for at all.  Are you googling the wrong Tom Cowan?

 Thanks for playing Huxley, although the rest of the comparison is inapt. 

I thought you'd say that.  See Asimov v. Bova (Jewish guilt and Italian
guilt), settled out of court.

-- 
I could dance with you till the cowsJohn Cowan
come home.  On second thought, I'd  http://www.ccil.org/~cowan
rather dance with the cows when you co...@ccil.org
come home.  --Rufus T. Firefly

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Re: [License-discuss] Open Source Eventually License Development

2013-08-20 Thread Richard Stallman
[ To any NSA and FBI agents reading my email: please consider
[ whether defending the US Constitution against all enemies,
[ foreign or domestic, requires you to follow Snowden's example.

In principle, this should be a free software license as far as I can see.
It would call for study by a lawyer, however.

I recommend that anyone using this use it in parallel with GPL
3-or-later, as you have done.  That way, the program can't fail to be
free software.  And there is nothing to lose by doing this, since it
permits anyone to release a version with trivial modifications under
GPL 3-or-later at any time.

What do you think of making that recommendation?

-- 
Dr Richard Stallman
President, Free Software Foundation
51 Franklin St
Boston MA 02110
USA
www.fsf.org  www.gnu.org
Skype: No way! That's nonfree (freedom-denying) software.
  Use Ekiga or an ordinary phone call.

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Re: [License-discuss] Open Source Eventually License Development

2013-08-20 Thread Michael Widenius

Hi!

 Eben == Eben Moglen mog...@softwarefreedom.org writes:

Eben Whatever the truth of the adage may be, the point for us is that none
Eben of this has anything to do with licensing.  Fred Trotter was actually
Eben asking a question, to which the correct answer is: You don't need a
Eben license to make something free software at a certain date in the
Eben future.  Giving a copy to an appropriate agent, with written
Eben instructions to publish under, e.g. GPLv3 or ASL 2.0 on the future
Eben date, is quite sufficient.  Any number of reliable intermediaries for
Eben such purposes exist, and would provide the service gratis.

What Fred Trotter and I have been proposing is actually a bit
different (at least when it comes to what I refer as Business Source).

From day one all code will be available.  The copyright text in all
source files clearly state the exact date when the code becomes Open
Source or Free Software.  Until that given date anyone is free to
modify or redistribute the code in any manner.  It's only the usage of
the code that is restricted to a small part of the users (those that
can afford to pay according to the copyright holder) until the code is
free.

In other words, there is no need for escrow or any agent.

More about this at:
http://timreview.ca/article/691

Eben This isn't a matter for copyright licensing, because licenses are, in
Eben J.L. Austin's term, performative utterances.  They are present acts
Eben of permission, not declarations of future intention, like testaments.
Eben There's no point in a copyright holder writing a license that says
Eben these are the terms today, and those will be my terms tomorrow.
Eben Unless the license is irrevocable, only the terms of present
Eben permission matter.

In our case, as soon as the original license expire, the new license
it's irrevocable Open Source.

cut

Eben It is simple to demonstrate from an economic perspective that the
Eben value of the proprietary product sold on a fixed-term delay of free
Eben licensing converges, after the first such period of distribution, to
Eben the value of one upgrade minus the cost of applying it, assuming the
Eben downstream user attributes absolutely no value to free licensing over
Eben proprietary licensing, which is in fact usually a bad assumption.

Of course the free licensing is important; It provides a safety net
for all users that if the original software developers are not
continuing to do new critical development that the users needs, the
users can continue to use the original software for free.

Eben This clearing price is too small to be profitable except at very high
Eben volumes or in other extraordinary circumstances.

We will soon have have clear evidence that this is not the case. A
lot of companies that I have talked with are considering to release
their closed source code under Business Source as a way to get a
bigger market but still get paid for development.

The sad fact today is that most small companies can NOT afford to make
their code open source/free software as that would kill all their
current and future income.

Eben The business model
Eben fails for simple economic reasons--because the competition provided
Eben for one's present product by the last version one has freed is almost
Eben always too strong to withstand--not for legal ones.

We know from experience that users are willing to pay for getting
upgrades and bug fixes.  As long as the product is evolving, there
will be companies that are willing to pay to get the last version.

Eben The natural history is in accord with theory on this subject.  RMS was
Eben correct that this was a problematic compromise, but even more
Eben problematic for the folks on the other side.

What other side?

We have to remember that Open Source/Free Software is a better
development model for large project with lot of companies that can
make direct or indirect money of the project.

Open Source/Free Software does not solve the issue of how to create a
software company around one or a few products and get enough money to
pay full time developers.

Doing support or consulting around the project is not a solution as
this doesn't generate enough money to be able to compete with closed
source solutions.

Regards,
Monty
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Re: [License-discuss] Open Source Eventually License Development

2013-08-20 Thread Michael Widenius

Hi!

 Eben == Eben Moglen mog...@softwarefreedom.org writes:

cut

Eben No, Mr Cowan.  The license only exists if the precedent license hasn't
Eben been terminated or revoked during the term.  If it has, then the right
Eben to distribute under free license has also terminated.  No one should
Eben take the code in reliance on the free license after notice of
Eben termination, because the free license is deceptive: the distributor is
Eben infringing.  If the free license promised is GPL, then GPLv2 sect.  7
Eben or GPLv3 sect.  12 would prevent the presumptive GPL distributor from
Eben releasing under those circumstances, while ensuring that any
Eben downstream recipients had protection; more permissive and in this
Eben sense less careful licenses would allow the creation of the resulting
Eben menace to navigation, but the apparent free license wouldn't in fact
Eben exist.

I don't see how one could revoke something that one has explicitely
stated in each source file (just like the GPL; You can't revoke GPL
from something that is already published).

Here is an example Business Source license that should hopefully help
clarify things.

This should be included as the header of all source file in the project.

As far as I can understand, this should be give the end user reasonable
assurance that the code he gets will be Free software on the given
date and NO ONE can take that right away from him.

Regards,
Monty

--

XYZ Business Source License

Copyright © 2013, XYZ Corporation

This license (“License”) grants rights in specified software code (the “Code”) 
under a business-source-style license that applies one set of terms and 
conditions (the “Pre-Change Terms”) to the Code and all modified Code before a 
specified date (the “Change Date”), and another set of terms and conditions 
(the “Post-Change Terms”) on and after the Change Date. The Change Date for 
this license is 01 January 2015.

More about this License can be found at http​://company-name/Business_source.

A. Pre-Change Terms: License, before 01 January 2015:

Prior to the Change Date, you have the non-exclusive, worldwide rights under 
this License to copy, modify, display, use, and redistribute the Code solely 
under the following conditions:

[Insert business source limitations appropriate to your business here, such as: 
“The database size used by the Code is less than 1 Gigabyte, and the Code is 
used in non-commercial contexts where neither you, the user nor any distributor 
or service provider makes money, directly or indirectly, from using or 
otherwise exercising your licensed rights in the Code or modified Code.”]. [The 
foregoing limitations are for illustrative purposes only. When designing your 
business-specific, Pre-Change limitations, carefully consider such things as: 
i) the differences between source and object code; ii) copyright and patent 
rights; and iii) the impact on your business of all possible uses of the code, 
including distribution, the creation and use of derivatives and collective 
works, and the provision of cloud-based and other services that do not require 
distribution of the Code.]

All copies and uses of original and modified Code are also subject to this 
License. When copying or distributing original or modified Code, you must 
conspicuously and appropriately publish on each copy an appropriate copyright 
notice; keep intact all notices stating that this License applies to the 
original or modified Code; keep intact all notices of the absence of any 
warranty; and give all recipients a copy of this License along with the Code.

If your desired use of the Code or modified Code does not meet all of the above 
requirements, you MUST purchase a separate, commercial license for the Code 
prior to all conflicting installations or other uses of the Code. You can buy 
support/licenses from: __.

Any attempt to use the Code outside the permitted scope of the Pre-Change Terms 
will automatically terminate your rights under this License to this and all 
future versions of the Code.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE CODE OR ANY SERVICES OR WORK 
PRODUCT PROVIDED UNDER OR IN CONNECTION WITH WITH THIS LICENSE ARE PROVIDED ON 
AN “AS IS” BASIS. YOU EXPRESSLY WAIVE ALL WARRANTIES, WHETHER EXPRESS OR 
IMPLIED, INCLUDING (WITHOUT LIMITATION) WARRANTIES OF MERCHANTABILITY, FITNESS 
FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION, AND ACCURACY OF 
INFORMATIONAL CONTENT.

On the Change Date, the Pre-Change Terms shall automatically terminate and 
shall be replaced with the Post-Change Terms described in Section B, below.

B. Post-Change Terms: License after, and including, 01 January 2015:

On and after the Change Date, the software code is licensed to you pursuant to 
version 2 or later of the GNU General Public License, as follows:

This program is free software; you can redistribute it and/or modify it under 
the terms of the GNU General Public License 

Re: [License-discuss] Open Source Eventually License Development

2013-08-19 Thread Bradley M. Kuhn
Richard Fontana wrote at 08:20 (EDT):
 Not with an exception in the GPLv2 exception sense, and not without
 the result being (A)GPLv3-incompatible, since under TGPPL each
 downstream distributor appears to be required to give the grace
 period.

ISTR that Zooko was willing to drop that requirement for the sake of
simplicity.  But maybe I'm misremembering.  Zooko?

-- 
   -- bkuhn
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Re: [License-discuss] Open Source Eventually License Development

2013-08-19 Thread Clark C. Evans
On Sun, Aug 18, 2013, at 02:25 PM, Eben Moglen wrote:
 You seem determined to take offense, Mr Cowan.  

Dr. Moglen,  

I'd like to highlight Cowan's advice since I've found it very helpful
(and completely un-obvious) in my own life:  

  Civil apologies require confession, contrition, and 
   promise of amendment.  

Just a few years past, my younger brother called me out with a 
similar message and I very much lost it.However, after a few 
*years* (20?) reflection I came to understand I was very wrong, 
and that my distraction, distortion, and false apology were morally 
corrupt baggage.   John isn't trying to hurt you, he's trying to help 
you grow as a person ... if he didn't care about the community 
and Free Software he would remain silent.

Kindly,

Clark
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Re: [License-discuss] Open Source Eventually License Development

2013-08-19 Thread Bradley M. Kuhn
John Cowan wrote at 13:27 (EDT) on Sunday:
 == licensing content ends here, the rest is about civil behavior ==

I've already written to Larry privately to this point, but given that
this subset of the conversation has raged on, I'd like to echo John's
point: I think many comments on this thread were inappropriate.
Artfully crafted insults wrapped in some sophistry of plausible
deniability are still insults.  Indeed, the meta-text here reminds me
for the first time in years of the 1996 French film, Ridicule.

Larry Rosen and I disagree about a great deal regarding Free Software
licensing, and from time to time, I've even found myself on the opposite
side of the table as Larry in GPL enforcement matters.  To say that I
Larry and I are political rivals is thus probably an understatement. :)

However, there is no reason here on this list for anything but
respectful discussion.  I haven't seen much of it on this thread the
last few days.  In some backchannel discussions with others, I get the
impression that John and I aren't alone in that view.
-- 
   -- bkuhn
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Re: [License-discuss] Open Source Eventually License Development

2013-08-19 Thread zooko
On Sat, Aug 17, 2013 at 08:44:02PM -0400, Bradley M. Kuhn wrote:
 Zooko,
 
 It might be worth mentioning here that you and I have had discussions
 for years about the idea of drafting TGPPL as a set of exceptions to
 Affero GPLv3 and/or GPLv3.
 
 I believe this is indeed possible, but requires a good amount of tuits.
 IIRC, Zooko, first draft was on you, right? :)

That's right, writing a draft Transitive Grace Period Public Licence v2.0 is
on my TODO list. I was thinking of modeling it on the GCC Runtime Library
Exception:

https://www.gnu.org/licenses/gcc-exception.html

I would of course appreciate any constructive, polite advice from the assembled
experts here.

Regards,

Zooko
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Re: [License-discuss] Open Source Eventually License Development

2013-08-18 Thread Lawrence Rosen
Dear Eben and others,

 

Here's another interesting case, this one perhaps more directly related to
the designation of someone as a trusted and accountable fiduciary for
licensing intellectual property:

 

http://en.wikipedia.org/wiki/Motion_Picture_Patents_Company

 

/Larry

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Re: [License-discuss] Open Source Eventually License Development

2013-08-18 Thread Bradley M. Kuhn
Zooko,

It might be worth mentioning here that you and I have had discussions
for years about the idea of drafting TGPPL as a set of exceptions to
Affero GPLv3 and/or GPLv3.

I believe this is indeed possible, but requires a good amount of tuits.
IIRC, Zooko, first draft was on you, right? :)
-- 
   -- bkuhn
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Re: [License-discuss] Open Source Eventually License Development

2013-08-18 Thread Bradley M. Kuhn
 On Wednesday, 14 August 2013, John Cowan wrote:
 Suppose that Alice sells Bob the source code to Yoyomat, a
 proprietary program with delayed GPL.  After the term has passed, Bob
 may now distribute *that very copy* of Yoyomat freely to Charlie
 under the terms of the GPL.  In the scenario you outline, he may not;
 he must obtain a new copy from the escrow agent.

The main logistical problem occurs in those cases not where Bob received
source code under some no distribution permitted license, but when Bob
received *only* proprietary binaries of Yoyomat and has no source.

In that case, Bob likely has no method (logistically) to get what he
knows is Complete, Corresponding Source (CCS) for Yoyomat
(except from Alice herself).  Distribution of those binary bits
under GPL would be copyright infringement because Bob couldn't make
such distribution accompanied with CCS (or a valid offer therefor).

Bob *might* be able to show, as a defense to a copyright infringement
claim, that the source from the third-party escrow was indeed CCS for
the old proprietary binary that Alice gave Bob.  That'll require some
effort to show in practice (especially if much time has gone by) since
GPL's CCS is much more than just the source code itself.  If Alice is
well-intentioned, this issue is unlikely to come up.  However, if Alice
is a bad actor, this issue would cause serious trouble.

Admittedly, this is only an issue for copyleft licenses in this
situation.  For later liberation under permissive licenses, Bob's
compliance obligations when distributing the very same proprietary bits
are probably easily and obviously met (e.g., properly displaying
accurate copyright notices).

I reiterate that I am not a fan of these sort of liberate it later
licensing schemes, but if they are practiced in any event, it'd be good
to make sure they function such that later Free Software license
compliance is easy for everyone.  I suspect that's what John is seeking
here as well, and that's a good goal.  I hope folks won't be unduly
critical of those trying to explore that question.
-- 
   -- bkuhn
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Re: [License-discuss] Open Source Eventually License Development

2013-08-18 Thread Richard Fontana
On Sat, Aug 17, 2013 at 08:44:02PM -0400, Bradley M. Kuhn wrote:
 Zooko,
 
 It might be worth mentioning here that you and I have had discussions
 for years about the idea of drafting TGPPL as a set of exceptions to
 Affero GPLv3 and/or GPLv3.
 
 I believe this is indeed possible, 

Not with an exception in the GPLv2 exception sense, and not without
the result being (A)GPLv3-incompatible, since under TGPPL each
downstream distributor appears to be required to give the grace
period. 

 - RF
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Re: [License-discuss] Open Source Eventually License Development

2013-08-18 Thread Richard Stallman
[ To any NSA and FBI agents reading my email: please consider
[ whether defending the US Constitution against all enemies,
[ foreign or domestic, requires you to follow Snowden's example.

It is ironic that you wrote: Specific performance, a mandatory remedial
order to perform a promise, is not generally available at common law, as
first-year students all learn. You must realize, of course, that the great
(unreasonable) fear of the GPL is that a licensee will be required to
disclose his other software that merely links to the GPL program. How would
this be required if not by an order for specific performance?

In the usual circumstances, we could make him stop distributing the
product unless he complies.

-- 
Dr Richard Stallman
President, Free Software Foundation
51 Franklin St
Boston MA 02110
USA
www.fsf.org  www.gnu.org
Skype: No way! That's nonfree (freedom-denying) software.
  Use Ekiga or an ordinary phone call.

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Re: [License-discuss] Open Source Eventually License Development

2013-08-18 Thread Richard Stallman
[ To any NSA and FBI agents reading my email: please consider
[ whether defending the US Constitution against all enemies,
[ foreign or domestic, requires you to follow Snowden's example.

Yes, that's the alternative I originally recommended and that we have
been discussing Larry Rosen's objection to.  The agreement between D
and O might be one designed to create a fiduciary relationship, of
special trust and accountability, to which the legal system applies
uniquely high standards of responsibility.  It's this fiduciary
relationship with a third party which entitles you to the intervention
of mandatory orders to perform promises.

I don't understand why this is even relevant to the issue.
You seem to presume that an ordinary contract between D and O
is not sufficient, but you didn't explicitly say that.

Is an ordinary contract between D and O not sufficient?
If not, why not?


-- 
Dr Richard Stallman
President, Free Software Foundation
51 Franklin St
Boston MA 02110
USA
www.fsf.org  www.gnu.org
Skype: No way! That's nonfree (freedom-denying) software.
  Use Ekiga or an ordinary phone call.

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Re: [License-discuss] Open Source Eventually License Development

2013-08-18 Thread John Cowan
Eben Moglen scripsit:

 Yes, it is simple.  I am asserting that in no meaningful sense is your
 agreement enforceable, if during the period of the proprietary
 agreement your promisor revokes and refuses to issue the program under
 free license.  

That surely won't work, but it's not what I take Larry to be describing.
Rather, he is talking about a contract which grants the right *to the
licensee* to distribute copies of his copy under the GPL, provided
he does so not earlier than one year (or whatever) after the contract
is formed.  This is no more objectionable than for me to sell you the
right to publish my book, provided that you don't do so before 2015.
When 2015 rolls around, you can go ahead and publish with no further
action on my part, though if you publish in 2014 you are violating
my copyright.

So there is no question of the licensee suing the licensor for failing
to license.  The license already exists.  Rather, the licensor would have
to sue the licensee for copyright violation, in which case the licensee
would point to the terms of the contract.

 But the resemblance is hardly accidental.

Saying that Larry's resemblance to a first-year law student is hardly
accidental is hardly civil; in fact, it's downright insulting.

-- 
John Cowanco...@ccil.orghttp://ccil.org/~cowan
Half the lies they tell about me are true.
--Tallulah Bankhead, American actress
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Re: [License-discuss] Open Source Eventually License Development

2013-08-18 Thread Eben Moglen
On Sunday, 18 August 2013, John Cowan wrote:

  That surely won't work, but it's not what I take Larry to be describing.
  Rather, he is talking about a contract which grants the right *to the
  licensee* to distribute copies of his copy under the GPL, provided
  he does so not earlier than one year (or whatever) after the contract
  is formed.  This is no more objectionable than for me to sell you the
  right to publish my book, provided that you don't do so before 2015.
  When 2015 rolls around, you can go ahead and publish with no further
  action on my part, though if you publish in 2014 you are violating
  my copyright.
  
  So there is no question of the licensee suing the licensor for failing
  to license.  The license already exists.  Rather, the licensor would have
  to sue the licensee for copyright violation, in which case the licensee
  would point to the terms of the contract.

No, Mr Cowan.  The license only exists if the precedent license hasn't
been terminated or revoked during the term.  If it has, then the right
to distribute under free license has also terminated.  No one should
take the code in reliance on the free license after notice of
termination, because the free license is deceptive: the distributor is
infringing.  If the free license promised is GPL, then GPLv2 sect.  7
or GPLv3 sect.  12 would prevent the presumptive GPL distributor from
releasing under those circumstances, while ensuring that any
downstream recipients had protection; more permissive and in this
sense less careful licenses would allow the creation of the resulting
menace to navigation, but the apparent free license wouldn't in fact
exist.

So the presumptive GPL distributor who was terminated before the right
to free sublicensing vested *will* have to sue on the (wrongfully, from
her perspective) terminated agreement.  And here the issue of remedy,
as I have said all along, becomes fatally relevant.

This is not speculative.  The intended mode of use is to postpone the
free period to the term of a commercial proprietary license, which
must allow, for example, for termination for non-payment.  Termination
may happen unjustly, but if it happens the free license is destroyed,
The remedy in suit, even if the wrongful termination is proved, lies
in damages.  Also, please note that the free license promised in
future is an executory interest that will become voidable in
bankruptcy, if the party using the freedom postponement license goes
broke during the commercial term.  This is a particularly bad failure
mode, because free release in the event of commercial failure is one
of the few reasons to pay for the postponed freedom license.
  
[This is also the answer to RMS's question.  Yes, an ordinary
contract will work, except that the legal system will tend (in
Anglo-American jurisdictions in particular, at least) to award the
wrong remedy for breach, in that it will not require the issuance
of the free license.  One can fix that problem, and insure the
availability of the right remedy, by structuring the transaction
with the intermediary correctly.  That's what the conversation has
been about, net of confusion.]

   But the resemblance is hardly accidental.
  
  Saying that Larry's resemblance to a first-year law student is hardly
  accidental is hardly civil; in fact, it's downright insulting.
  
I don't see why.  I think you're insulting first-year law students.
The people I spend my life with are among the smartest and most
capable young people in the States.  Many of them are young
superbrights, as are some of the street kids I have taught in
Bangalore, one or two of whom are much smarter than Larry Rosen, you,
or me.

Their resemblance to Larry (the US 1Ls, not the Bangalore street kids)
*is* more than accidental.  He was them once, they will be him later.
In twenty-six years of teaching at Columbia, Harvard and Virginia, as
well as abroad in several places, I have taught slightly more than
6,000 lawyers.  Many of them--now working in positions of high esteem
with great distinction--still show prominent intellectual and
emotional habits that have not changed over the course of their entire
professional lives, and which I remember vividly from a time when they
and I were much more young.

Raffaelo could draw a perfect circle freehand, Georgio Vasari says.
Freehand license drafting is a bad habit for those not so supernaturally
skilled, at whatever time of life.  Among the many students I have
taught, I have known a few who were hampered in life by their
inability to accept the advice of those who had thought more deeply.
That's also a bad trait for a lawyer, because all of us use the advice of
those more expert all the time.  As lawyers, and as teachers, we sell
judgment.  We are in turn judged on the judgment we show in those
whose advice and teaching we seek out as the basis for our own.

  * * * * *

Another rule of the classroom with good application to mailing lists
(for the same 

Re: [License-discuss] Open Source Eventually License Development

2013-08-18 Thread John Cowan
Eben Moglen scripsit:

 No, Mr Cowan.  The license only exists if the precedent license hasn't
 been terminated or revoked during the term.

There is no precedent license.  There is only one license, some of whose
terms don't come into effect for a while.

 So the presumptive GPL distributor who was terminated before the right
 to free sublicensing vested *will* have to sue on the (wrongfully,
 from her perspective) terminated agreement.  And here the issue of
 remedy, as I have said all along, becomes fatally relevant.

Granted, but the same is true of the GPL itself.  Surely you don't
believe that just because the GPLv3 says its permissions are
irrevocable, that they actually are?  In the world of § 203, the claim
of irrevocability is downright deceptive, and nobody should rely on it.
(TINLA.)

 This is a particularly bad failure mode, because free release in the
 event of commercial failure is one of the few reasons to pay for the
 postponed freedom license.

Say what?  The reason to pay for the license is that you want the
software immediately and can't get it otherwise right now.

== licensing content ends here, the rest is about civil behavior ==

   Saying that Larry's resemblance to a first-year law student is
   hardly accidental is hardly civil; in fact, it's downright
   insulting.

 I don't see why.  I think you're insulting first-year law students.

Nonsense.  It is obvious that you were not praising Larry for being as
smart as a 1L, you were saying he was as ignorant as a 1L (a remark all
the worse because it is August).  Trade libel, I suspect.  Rudeness,
beyond all doubt.

 Their resemblance to Larry (the US 1Ls, not the Bangalore street kids)
 *is* more than accidental.  He was them once, they will be him later.

Backpedal all you want: it will not improve your standing in this
conversation at all.  Civil apologies require confession, contrition,
and promise of amendment.

 Among the many students I have taught, I have known a few who were
 hampered in life by their inability to accept the advice of those who
 had thought more deeply.

Doubtless.  I'm quite willing to take advice, even unsolicited advice,
but when it comes with double handfuls of condescension, I find it
difficult to accept.

 Another rule of the classroom with good application to mailing lists
 (for the same reason in both cases: to acknowledge and respect the
 patience of the others being subjected to the colloquy) is that when
 it's over, it's over.

There are people on this list who can silence me with a word, but don't
imagine you are one of them.  You can stop responding, or stop reading,
or put me in your .procmailrc file if you don't like it.

-- 
John Cowanhttp://ccil.org/~cowan  co...@ccil.org
The Penguin shall hunt and devour all that is crufty, gnarly and
bogacious; all code which wriggles like spaghetti, or is infested with
blighting creatures, or is bound by grave and perilous Licences shall it
capture.  And in capturing shall it replicate, and in replicating shall
it document, and in documentation shall it bring freedom, serenity and
most cool froodiness to the earth and all who code therein.  --Gospel of Tux
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Re: [License-discuss] Open Source Eventually License Development

2013-08-18 Thread Lawrence Rosen
I'll elect to focus on Eben's legal arguments rather than his ad hominem
attacks. I do so with the intent of alerting the rest of this list to his
misstatements of the law, not to try to educate him. 

Eben is right that a license can terminate before its terms are completely
executed, for reasons of bankruptcy or perhaps some form of contractual
breach. But talented lawyers have dealt with these concerns many times and
have potential solutions available.

For example, the Open Web Foundation Agreement (OWFa) [1] deals directly
with the fact that copyrights and patents can change ownership (voluntarily
or involuntarily). The licensors in that OWFa in section 1 grant a
perpetual copyright license and, in section 2, on behalf of myself and my
successors in interest and assigns, irrevocably promise not to assert their
patent claims. Lest that irrevocable patent license not be clear enough, we
repeat in section 3.1.3:

Notwithstanding the personal nature of my promise, this promise is
 intended to be binding on any future owner, assignee or exclusive
 licensee who has been given the right to enforce any Granted Claims
 against third parties.

Then, because of the quite reasonable fear of potential bankruptcy of the
licensor, we locked the license in with the following provision in 3.1.4:

 Solely for purposes of Section 365(n) of Title 11, United States
Bankruptcy
 Code and any equivalent law in any foreign jurisdiction, this promise
will 
 be treated as if it were a license and you may elect to retain your
rights 
 under this promise if I (or any owner of any patents or patent
applications
 referenced herein), as a debtor in possession, or a bankruptcy trustee,

 reject this non-assert.

And then, because some of us are still paranoid, we added this section 6:

 I agree that I will not intentionally take or willfully assist any
third party
  to take any action for the purpose of circumventing my obligations
under
  this CLA.

Could a court invalidate this license? Yes, it would have the authority to
do so. 

Is that likely? No.

/Larry

[1] http://www.openwebfoundation.org/legal/the-owf-1-0-agreements/owfa-1-0 


-Original Message-
From: Eben Moglen [mailto:mog...@softwarefreedom.org] 
Sent: Sunday, August 18, 2013 9:17 AM
To: co...@mercury.ccil.org
Cc: license-discuss@opensource.org; lro...@rosenlaw.com; mark.atw...@hp.com;
ka...@gnome.org; r...@gnu.org; nat...@gonzalezmosier.com; mo...@askmonty.org
Subject: Re: [License-discuss] Open Source Eventually License Development

On Sunday, 18 August 2013, John Cowan wrote:

  That surely won't work, but it's not what I take Larry to be describing.
  Rather, he is talking about a contract which grants the right *to the
  licensee* to distribute copies of his copy under the GPL, provided
  he does so not earlier than one year (or whatever) after the contract
  is formed.  This is no more objectionable than for me to sell you the
  right to publish my book, provided that you don't do so before 2015.
  When 2015 rolls around, you can go ahead and publish with no further
  action on my part, though if you publish in 2014 you are violating
  my copyright.
  
  So there is no question of the licensee suing the licensor for failing
  to license.  The license already exists.  Rather, the licensor would have
  to sue the licensee for copyright violation, in which case the licensee
  would point to the terms of the contract.

No, Mr Cowan.  The license only exists if the precedent license hasn't been
terminated or revoked during the term.  If it has, then the right to
distribute under free license has also terminated.  No one should take the
code in reliance on the free license after notice of termination, because
the free license is deceptive: the distributor is infringing.  If the free
license promised is GPL, then GPLv2 sect.  7 or GPLv3 sect.  12 would
prevent the presumptive GPL distributor from releasing under those
circumstances, while ensuring that any downstream recipients had protection;
more permissive and in this sense less careful licenses would allow the
creation of the resulting menace to navigation, but the apparent free
license wouldn't in fact exist.

So the presumptive GPL distributor who was terminated before the right to
free sublicensing vested *will* have to sue on the (wrongfully, from her
perspective) terminated agreement.  And here the issue of remedy, as I have
said all along, becomes fatally relevant.

This is not speculative.  The intended mode of use is to postpone the free
period to the term of a commercial proprietary license, which must allow,
for example, for termination for non-payment.  Termination may happen
unjustly, but if it happens the free license is destroyed, The remedy in
suit, even if the wrongful termination is proved, lies in damages.  Also,
please note that the free license promised in future is an executory
interest that will become voidable in bankruptcy

Re: [License-discuss] Open Source Eventually License Development

2013-08-18 Thread Eben Moglen
You seem determined to take offense, Mr Cowan.  

In the first place, I think you might have missed the point of the
Shakespeare quotation preceding the remark you object to.  I didn't
compare Mr Rosen to a 1L.  I wrote that the unavailability of specific
performance in contract is 1L material.  I made no reference to Rosen.
That was a factual statement for the benefit of non-US lawyers and lay
readers.  Mr Rosen took offense by inferring a comparison that was not
implied.

In reply I quoted from Sonnet 111, and said that since I work with law
students all the time, if I *had* compared him to one it would hardly
have been an accident: I compare lawyers to the students they were all
the time.  I explained that to you, and you have made it somehow a
further ground for offense, demanding a show of contrition that makes
no sense whatever.

In the second place, I wasn't proposing to shut you up.  The only
person I can shut up is myself.  I was bidding farewell to the
conversation, before others began to find it tedious.  Now, through no
fault of mine, they will in addition begin to find it acrimonious.
All the more reason for the silence I proposed.

Eben
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Re: [License-discuss] Open Source Eventually License Development

2013-08-18 Thread John Cowan
Lawrence Rosen scripsit:

 I'll elect to focus on Eben's legal arguments rather than his ad hominem
 attacks. 

Indeed; far better to remain above the fray yourself, and allow your
outraged and moralistic friends (such as myself) to play Huxley to
your Darwin.

 Eben is right that a license can terminate before its terms are completely
 executed, for reasons of bankruptcy or perhaps some form of contractual
 breach. But talented lawyers have dealt with these concerns many times and
 have potential solutions available.

Indeed, though there is no escape from the dreaded § 203(a)(5), which
explicitly says that you can't contract out of it.

 For example, the Open Web Foundation Agreement (OWFa) [1] deals directly
 with the fact that copyrights and patents can change ownership (voluntarily
 or involuntarily). The licensors in that OWFa in section 1 grant a
 perpetual copyright license and, in section 2, on behalf of myself and my
 successors in interest and assigns, irrevocably promise not to assert their
 patent claims. Lest that irrevocable patent license not be clear enough, we
 repeat in section 3.1.3:

[etc. etc.]

Of course, the more such reassurances you add, the more complexity and
uncertainty you interject into the situation: the price of infinite
precision is infinite verbosity, as we say in Lojbanistan, and adding
more terms, while helpful to the sympathetic, just provides a bigger
attack surface for the bad guys.  (Not for nothing am I my father's son.)

The members of the English Church had ingenuously imagined up
to that moment that it was possible to contain, in a frame of
words, the subtle essence of their complicated doctrinal system,
involving the mysteries of the Eternal and the Infinite on the
one hand, and the elaborate adjustments of temporal government
on the other. They did not understand that verbal definitions
in such a case will only perform their functions so long as
there is no dispute about the matters which they are intended
to define: that is to say, so long as there is no need for
them. For generations this had been the case with the Thirty-nine
Articles. Their drift was clear enough; and nobody bothered over
their exact meaning. But directly someone found it important to
give them a new and untraditional interpretation, it appeared
that they were a mass of ambiguity, and might be twisted into
meaning very nearly anything that anybody liked.

--Lytton Strachey, Cardinal Manning

-- 
Well, I'm back.  --SamJohn Cowan co...@ccil.org
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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Richard Stallman
[ To any NSA and FBI agents reading my email: please consider
[ whether defending the US Constitution against all enemies,
[ foreign or domestic, requires you to follow Snowden's example.

Tahoe-LAFS is licensed to the public under the Transitive Grace Period 
Public
Licence 1.0 [*]. Tahoe-LAFS is Free and Open software. The Transitive 
Grace
Period Public Licence is an Open Source licence.

Is that true?  Or is it just a hypothetical example?

I don't recall studying this license.  I am not sure what it says.  It
is not in our license-list.html page.  So I don't know whether it is a
free software license, and if it isn't, then Tahoe-LAFS is not free
sotfware.

If you send me the text of this license, I can study it.

-- 
Dr Richard Stallman
President, Free Software Foundation
51 Franklin St
Boston MA 02110
USA
www.fsf.org  www.gnu.org
Skype: No way! That's nonfree (freedom-denying) software.
  Use Ekiga or an ordinary phone call.

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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Eben Moglen
On Thursday, 15 August 2013, Richard Stallman wrote:

  Tahoe-LAFS is licensed to the public under the Transitive Grace
  Period Public Licence 1.0 [*]. Tahoe-LAFS is Free and Open
  software. The Transitive Grace Period Public Licence is an
  Open Source licence.
  
  Is that true?  Or is it just a hypothetical example?

Tahoe-LAFS, currently at version 1.10, is dual licensed, under GPLv2
or any later version, and the other license mentioned above.[1] The
combination of GPLv2+ and the secondary license probably achieves
consequences other than those the project intends, but at any rate
there is no doubt that the project is copylefted free software.

Eben


[1]: See https://tahoe-lafs.org/trac/tahoe-lafs/browser/trunk/README.txt
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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread zooko
On Thu, Aug 15, 2013 at 09:23:23PM -0400, Richard Stallman wrote:
 
 Tahoe-LAFS is licensed to the public under the Transitive Grace Period 
 Public
 Licence 1.0 [*]. Tahoe-LAFS is Free and Open software. The Transitive 
 Grace
 Period Public Licence is an Open Source licence.
 
 Is that true?  Or is it just a hypothetical example?

This is true:

https://tahoe-lafs.org/trac/tahoe-lafs/browser/trunk/docs/about.rst#license

 I don't recall studying this license.  I am not sure what it says.  It is not 
 in our license-list.html page.  So I don't know whether it is a free software 
 license, and if it isn't, then Tahoe-LAFS is not free sotfware.

Tahoe-LAFS is also available under the GPL, at your option.

In addition it is my current belief that the TGPPL is a Free Software licence.

At least as much as the GNU All-Permissive License is -- the TGPPL permits
derived works to be proprietary, just as the GNU All-Permissive License does,
but the TGPPL permits such proprietary derived works only under limiting
conditions, unlike the GNU All-Permissive License, which allows proprietary
derived works unconditionally.

Tahoe-LAFS is available to the public under the terms of either licence, and so
the public has full rights to use the Tahoe-LAFS software freely, therefore
Tahoe-LAFS is Free Software.

 If you send me the text of this license, I can study it.

I'll append it to the end of this letter.

I've previously submitted it to the FSF for review. Brett Smith replied in
private email in December of 2010:

 We haven't done a complete analysis (so please don't take this as the FSF's
official position), but my initial impression was that our opinion about
permissive licenses generally would extend to the TGPPL as well.  Namely: the
TGPPL legally grants a recipient all the rights they need to have free
software.  But when a user receives a particular work under the license's
terms, they may not have the source code that they need to practically exercise
those rights -- at least for a while.  So the license itself is free, but you
need to look at a little more information to figure out whether a particular
user has freedom with a particular work under its terms.  

(I hope Brett does not mind that I quoted his email in public! It seems
appropriate and I think he won't mind.)

He also wrote a great deal more in a private conversation between him and me
about practical considerations.

By the way, I too am concerned about the practical issue that Brett raised: do
you have access to the source code that you would need in order to exercise
your rights? With Tahoe-LAFS and LeastAuthority.com, we have hitherto published
source code even when the user did not (yet) have full rights to it. That way,
there is no action or inaction on our part that could prevent the user from
subsequently exercising their rights.

I would be interested in a variant of the Transitive Grace Period Public
Licence which imposed that as a condition on the makers of derived works.

Regards,

Zooko

--- begin appended text of Transitive Grace Period Public Licence, v1.0

===
Transitive Grace Period Public Licence (TGPPL) v. 1.0
===

This Transitive Grace Period Public Licence (the License) applies to any
original work of authorship (the Original Work) whose owner (the
Licensor) has placed the following licensing notice adjacent to the
copyright notice for the Original Work:

 *Licensed under the Transitive Grace Period Public Licence version 1.0*

1.  **Grant of Copyright License.** Licensor grants You a worldwide,
royalty-free, non-exclusive, sublicensable license, for the duration of
the copyright, to do the following:

a. to reproduce the Original Work in copies, either alone or as part of a
   collective work;

b. to translate, adapt, alter, transform, modify, or arrange the Original
   Work, thereby creating derivative works (Derivative Works) based upon
   the Original Work;

c. to distribute or communicate copies of the Original Work and Derivative
   Works to the public, with the proviso that copies of Original Work or
   Derivative Works that You distribute or communicate shall be licensed
   under this Transitive Grace Period Public Licence no later than 12
   months after You distributed or communicated said copies;

d. to perform the Original Work publicly; and

e. to display the Original Work publicly.

2.  **Grant of Patent License.** Licensor grants You a worldwide,
royalty-free, non-exclusive, sublicensable license, under patent claims
owned or controlled by the Licensor that are embodied in the Original
Work as furnished by the Licensor, for the duration of the patents, to
make, use, sell, offer for sale, have made, and import the Original Work
and Derivative Works.

3.  **Grant of Source Code License.** The term Source Code means the

Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Lawrence Rosen
Eben Moglen wrote:
 This isn't a matter for copyright licensing, because licenses are, in J.L.
Austin's term, 
 performative utterances.  They are present acts of permission, not
declarations of
 future intention, like testaments. There's no point in a copyright holder
writing a
 license that says these are the terms today, and those will be my terms
tomorrow.

Hi Eben,

J.L. Austin described performative utterances of the form I now pronounce
you man and wife, used in the course of a marriage ceremony. Such
statements are neither true nor false (not truth-evaluable). [1] But I
don't understand the relevance of this concept to an Open Source
Eventually license. 

In the more traditional legal analysis, regardless of the wisdom of such a
license, we prefer to treat written promises relating to future actions as
binding upon the person making the offer -- at least where there is some
form of consideration paid for the promise. A commercial software license
that predates that eventually-FOSS license definitely includes sufficient
consideration to enforce that promise. It isn't a mere unenforceable
utterance.

It is always better to get that FOSS promise now, in writing.

/Larry

[1] http://en.wikipedia.org/wiki/Performative_utterance 



-Original Message-
From: Eben Moglen [mailto:mog...@softwarefreedom.org] 
Sent: Wednesday, August 14, 2013 3:44 PM
To: lro...@rosenlaw.com
Cc: r...@gnu.org; license-discuss@opensource.org; mo...@askmonty.org;
ka...@gnome.org; mark.atw...@hp.com; nat...@gonzalezmosier.com;
r...@gonzalezmosier.com
Subject: RE: [License-discuss] Open Source Eventually License Development

Whatever the truth of the adage may be, the point for us is that none of
this has anything to do with licensing.  Fred Trotter was actually asking a
question, to which the correct answer is: You don't need a license to make
something free software at a certain date in the future.  Giving a copy to
an appropriate agent, with written instructions to publish under, e.g. GPLv3
or ASL 2.0 on the future date, is quite sufficient.  Any number of reliable
intermediaries for such purposes exist, and would provide the service
gratis.

This isn't a matter for copyright licensing, because licenses are, in J.L.
Austin's term, performative utterances.  They are present acts of
permission, not declarations of future intention, like testaments.
There's no point in a copyright holder writing a license that says these
are the terms today, and those will be my terms tomorrow.
Unless the license is irrevocable, only the terms of present permission
matter.  Once the software *is* free, on the other end, only the terms of
permission then granted matter, regardless of any prior expression of an
intention to provide different free terms.  So there is no legal issue of
significance involved in the business model of postponing freedom for
interim proprietary distribution.  Simple conveyancing is legally quite
sufficient.  The business method does not fail because people have mumbled
incorrect magic words.

It is simple to demonstrate from an economic perspective that the value of
the proprietary product sold on a fixed-term delay of free licensing
converges, after the first such period of distribution, to the value of one
upgrade minus the cost of applying it, assuming the downstream user
attributes absolutely no value to free licensing over proprietary licensing,
which is in fact usually a bad assumption.
This clearing price is too small to be profitable except at very high
volumes or in other extraordinary circumstances.  The business model fails
for simple economic reasons--because the competition provided for one's
present product by the last version one has freed is almost always too
strong to withstand--not for legal ones.

The natural history is in accord with theory on this subject.  RMS was
correct that this was a problematic compromise, but even more problematic
for the folks on the other side.


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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Eben Moglen
On Friday, 16 August 2013, Lawrence Rosen wrote:

  In the more traditional legal analysis, regardless of the wisdom of
  such a license, we prefer to treat written promises relating to
  future actions as binding upon the person making the offer -- at
  least where there is some form of consideration paid for the
  promise. A commercial software license that predates that
  eventually-FOSS license definitely includes sufficient consideration
  to enforce that promise. It isn't a mere unenforceable utterance.

Larry, my dear man, how do you arrange to get specific performance of
this promise to license in future once the underlying original license
is revoked?  It's a software license; contract damages will surely be
limited to the return of the price paid, minus the fair value of the
use of the software in the meanwhile, which equals zero unless the
defendant's trial counsel actually spat on the jury.  You say that equitable
remedies are available requiring the making of a non-exclusive license
to everybody in the world in compensation for an individual complaint
of breach on a bilateral license agreement?

This quite unusual and wholly speculative action for specific
performance of an agreement to agree is supposed to be better assurance
than a trust imposed upon a responsible third party to perform a
necessary future legal action?  The latter mechanism has been in full
vigor since the mid-fifteenth century, and can be seen working
constantly around us on every side.  Of the cases attesting to the
utility of your former contraption, ordering the release of software
under free license as remedy for breach of a promise so to license in
future, I have yet to read, subject to your correction, even one.


Eben
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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread zooko
Hi there, Fred Trotter:

Thanks for working on this topic and for citing my Transitive Grace Period
Public Licence [1, 2].

1. https://tahoe-lafs.org/trac/tahoe-lafs/browser/trunk/COPYING.TGPPL.rst

2. https://tahoe-lafs.org/~zooko/tgppl.pdf

I have one objection to raise right at the beginning:

On Mon, Jul 29, 2013 at 02:12:24AM -0700, fred trotter wrote:
 
 First, no ransom license of any type should ever be OSI approved as an
 Open Source license or be FSF approved as a Free Software License.
 Ransom licenses are proprietary until they are Open Source or
 Free/Libre.

Could we please refrain from using that word ransom for this?

Okay, but that wasn't my objection. My objection is that the above is confusing
software with licence, which could lead to people mistakenly thinking that
software is not Free (Libre) and Open Source when it is. It could even lead
people to mistakenly think that a Free (Libre) and Open Source licence is not
Free and Open.

Here's an example:

Apache Hadoop is licensed to the public under the Apache License 2.0. Apache
Hadoop is Free and Open software. The Apache License 2.0 is an Open Source
licence. EMC Greenplum HD Enterprise Edition (which I just learned about from
https://en.wikipedia.org/wiki/Hadoop) is proprietary, closed-source, non-Free
software. EMC Greenplum HD Enterprise Edition is a derived work of Apache
Hadoop.

Here's another example:

Tahoe-LAFS is licensed to the public under the Transitive Grace Period Public
Licence 1.0 [*]. Tahoe-LAFS is Free and Open software. The Transitive Grace
Period Public Licence is an Open Source licence. LeastAuthority.com's Cloud
Storage Plugins [3] are non-Free software. LeastAuthority.com's Cloud Storage
Plugins are a derived work of Tahoe-LAFS.

[*] Or under the GPL at your option.

[3] https://tahoe-lafs.org/pipermail/tahoe-dev/2013-July/008610.html

Regards,

Zooko
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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Lawrence Rosen
 Larry, my dear man, how do you arrange to get specific performance 
 of this promise to license in future once the underlying original license
 is revoked?

How did it get revoked? 

This is quite simple, Eben: By dealing with this as a standard two-party
contractual arrangement, the person who *buys* a commercial license upon the
(irrevocable!) promise that it will be available *to him* a year later under
the GPL, can thereby create an enforceable promise. Once he gets it (a year
later!) under the GPL, he is free to distribute it to you or to any other
trusted agent.

Let me insist please that I do not support this business model! For many
reasons, including those stated by you earlier, this business model is
probably doomed to fail. I only attempt here to avoid
philosophical/linguistic discussions relating to performative utterances
and get us back to basic licensing law.

Best,

/Larry

-Original Message-
From: Eben Moglen [mailto:mog...@softwarefreedom.org] 
Sent: Friday, August 16, 2013 3:47 PM
To: lro...@rosenlaw.com
Cc: r...@gnu.org; license-discuss@opensource.org; mo...@askmonty.org;
ka...@gnome.org; mark.atw...@hp.com; nat...@gonzalezmosier.com;
r...@gonzalezmosier.com
Subject: RE: [License-discuss] Open Source Eventually License Development

On Friday, 16 August 2013, Lawrence Rosen wrote:

  In the more traditional legal analysis, regardless of the wisdom of
  such a license, we prefer to treat written promises relating to
  future actions as binding upon the person making the offer -- at
  least where there is some form of consideration paid for the
  promise. A commercial software license that predates that
  eventually-FOSS license definitely includes sufficient consideration
  to enforce that promise. It isn't a mere unenforceable utterance.

Larry, my dear man, how do you arrange to get specific performance of this
promise to license in future once the underlying original license is
revoked?  It's a software license; contract damages will surely be limited
to the return of the price paid, minus the fair value of the use of the
software in the meanwhile, which equals zero unless the defendant's trial
counsel actually spat on the jury.  You say that equitable remedies are
available requiring the making of a non-exclusive license to everybody in
the world in compensation for an individual complaint of breach on a
bilateral license agreement?

This quite unusual and wholly speculative action for specific performance of
an agreement to agree is supposed to be better assurance than a trust
imposed upon a responsible third party to perform a necessary future legal
action?  The latter mechanism has been in full vigor since the mid-fifteenth
century, and can be seen working constantly around us on every side.  Of the
cases attesting to the utility of your former contraption, ordering the
release of software under free license as remedy for breach of a promise so
to license in future, I have yet to read, subject to your correction, even
one.


Eben

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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Eben Moglen
Yes, it is simple.  I am asserting that in no meaningful sense is your
agreement enforceable, if during the period of the proprietary
agreement your promisor revokes and refuses to issue the program under
free license.  You are implying that the remedy for breach of the
contract in that situation would be an order to make the new (free,
general) license previously promised.  That's simply bushwah.
Specific performance, a mandatory remedial order to perform a
promise, is not generally available at common law, as first-year
students all learn.  The remedy for breach of contract is damages in
all but a few hoary exceptional situations.  The damages measure in
software cases is as I described it, in case after case in which
software acquisition contracts are litigated.  It would yield nominal
damages, if any, in this situation.  There's no prospect you can get
the remedy for breach of this agreement that your word enforceable
implies to lay readers.  

Nor, as a general matter of the law of remedies, can you get an order
requiring Acme to license under free license to all the world because
he breached a bilateral license agreement with Beta, even if you could
get such an order at all.  The remedy would run no further than the
injury alleged and proven.

(There's a more fundamental problem, that your promise to make a
license in future isn't an enforceable agreement at all, but only an
agreement to agree, not actionable in contract since a famous case
about a load of hay in 1321.  But I didn't bother pointing that out
last time.)

I explained before why a license is the wrong place for a promise to
make a future license to different parties on other terms, and I have
also explained how the result wanted should be achieved.  You have
offered a proposal for achieving the same result with license
language, which I believe to be completely ineffective for simple
reasons I have explained.  Lawyers in need of technology will choose
between methods based on their evaluation of our arguments.  We are
both agreed that there are practical non-legal reasons to doubt the
utility of the business strategy in any event.  So business people in
need of a plan will proceed at their own risk.  I think that's
sufficient progress for one conversation.

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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Lawrence Rosen
In a strange way, Eben, I relish our occasional online discussions, if only
to see how long it will take you to compare me with a first-year law
student. :-)  

Voilà!  Less than a day!

/Larry

Lawrence Rosen
Rosenlaw  Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Rd., Ukiah, CA 95482
Office: 707-485-1242
Linkedin profile: http://linkd.in/XXpHyu 


-Original Message-
From: Eben Moglen [mailto:mog...@softwarefreedom.org] 
Sent: Friday, August 16, 2013 5:33 PM
To: lro...@rosenlaw.com
Cc: r...@gnu.org; license-discuss@opensource.org; mo...@askmonty.org;
ka...@gnome.org; mark.atw...@hp.com; nat...@gonzalezmosier.com
Subject: RE: [License-discuss] Open Source Eventually License Development
snip


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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Eben Moglen
No doubt my nature is subdued to what it works in, like the dyer's
hand.  

But the resemblance is hardly accidental.

Eben
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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Richard Stallman
[ To any NSA and FBI agents reading my email: please consider
[ whether defending the US Constitution against all enemies,
[ foreign or domestic, requires you to follow Snowden's example.

Tahoe-LAFS is also available under the GPL, at your option.

That makes Tahoe-LAFS free software, regardless of what the TGPPL says.

-- 
Dr Richard Stallman
President, Free Software Foundation
51 Franklin St
Boston MA 02110
USA
www.fsf.org  www.gnu.org
Skype: No way! That's nonfree (freedom-denying) software.
  Use Ekiga or an ordinary phone call.

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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Richard Stallman
[ To any NSA and FBI agents reading my email: please consider
[ whether defending the US Constitution against all enemies,
[ foreign or domestic, requires you to follow Snowden's example.

Suppose developer Ds give the code to organization O, and signs a
contract with O giving O the right to distribute that code under the
GNU GPL starting at a future date F.  Is that something O can rely on?
Is there any way for D to retract that?

-- 
Dr Richard Stallman
President, Free Software Foundation
51 Franklin St
Boston MA 02110
USA
www.fsf.org  www.gnu.org
Skype: No way! That's nonfree (freedom-denying) software.
  Use Ekiga or an ordinary phone call.

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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Lawrence Rosen
Dear Eben,

You wanted to cut short our conversation, but I believe it is important to
clarify the arguments you made about the enforceability, through specific
performance, of a software license.

It is ironic that you wrote: Specific performance, a mandatory remedial
order to perform a promise, is not generally available at common law, as
first-year students all learn. You must realize, of course, that the great
(unreasonable) fear of the GPL is that a licensee will be required to
disclose his other software that merely links to the GPL program. How would
this be required if not by an order for specific performance?

To quote your email again: That's simply bushwah.

I was not referring to specific performance, by the way. I agree with you
that specific performance in the software licensing context is unlikely,
although we hear of it apocryphally when certain GPL advocates threaten to
force proprietary source code disclosure. 

Nor was I suggesting that the license convert from commercial to a specific
licensee to free for all. As I said in my previous email, it can convert
to free for that specific licensee, who is then free under the GPL to
redistribute it to all. That part is truly simple. That's how you designed
the GPL!

It would be better to write an Open Source Eventually license that
converts to the GPL after one year as a self-executing, automatic event
certain to occur because the consideration was already paid for it in the
commercial phase of the license. Perhaps you can ask one of your first year
law students to draft such an enforceable agreement? They can do it as a
service to the non-lawyers on this list.

Not that I want to see an Open Source Eventually license We're
speaking hypothetically here, aren't we?

/Larry


-Original Message-
From: Eben Moglen [mailto:mog...@softwarefreedom.org] 
Sent: Friday, August 16, 2013 5:33 PM
To: lro...@rosenlaw.com
Cc: r...@gnu.org; license-discuss@opensource.org; mo...@askmonty.org;
ka...@gnome.org; mark.atw...@hp.com; nat...@gonzalezmosier.com
Subject: RE: [License-discuss] Open Source Eventually License Development

Yes, it is simple.  I am asserting that in no meaningful sense is your
agreement enforceable, if during the period of the proprietary agreement
your promisor revokes and refuses to issue the program under free license.
You are implying that the remedy for breach of the contract in that
situation would be an order to make the new (free,
general) license previously promised.  That's simply bushwah.
Specific performance, a mandatory remedial order to perform a promise, is
not generally available at common law, as first-year students all learn.
The remedy for breach of contract is damages in all but a few hoary
exceptional situations.  The damages measure in software cases is as I
described it, in case after case in which software acquisition contracts are
litigated.  It would yield nominal damages, if any, in this situation.
There's no prospect you can get the remedy for breach of this agreement that
your word enforceable
implies to lay readers.  

Nor, as a general matter of the law of remedies, can you get an order
requiring Acme to license under free license to all the world because he
breached a bilateral license agreement with Beta, even if you could get such
an order at all.  The remedy would run no further than the injury alleged
and proven.

(There's a more fundamental problem, that your promise to make a license in
future isn't an enforceable agreement at all, but only an agreement to
agree, not actionable in contract since a famous case about a load of hay
in 1321.  But I didn't bother pointing that out last time.)

I explained before why a license is the wrong place for a promise to make a
future license to different parties on other terms, and I have also
explained how the result wanted should be achieved.  You have offered a
proposal for achieving the same result with license language, which I
believe to be completely ineffective for simple reasons I have explained.
Lawyers in need of technology will choose between methods based on their
evaluation of our arguments.  We are both agreed that there are practical
non-legal reasons to doubt the utility of the business strategy in any
event.  So business people in need of a plan will proceed at their own risk.
I think that's sufficient progress for one conversation.


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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Eben Moglen
On Saturday, 17 August 2013, Richard Stallman wrote:

  Suppose developer Ds give the code to organization O, and signs a
  contract with O giving O the right to distribute that code under the
  GNU GPL starting at a future date F.  Is that something O can rely on?
  Is there any way for D to retract that?

Yes, that's the alternative I originally recommended and that we have
been discussing Larry Rosen's objection to.  The agreement between D
and O might be one designed to create a fiduciary relationship, of
special trust and accountability, to which the legal system applies
uniquely high standards of responsibility.  It's this fiduciary
relationship with a third party which entitles you to the intervention
of mandatory orders to perform promises.  Another alternative in the
relationship with a trusted third party is a copyright assignment on
condition, where the property passing to the trusted third party is
impressed with a trust to perform the condition, which is free
release.  The FSF copyright assignment agreements that you and I
manage, and with which most lawyers in the trade are somewhat
familiar, are an example of this form.  Where the conditional
assignment isn't useful, as in some European copyright systems, the
fiduciary relationship design becomes paramount, as Axel Metzger
showed in his architecture of the Fiduciary License Agreement for FSF
Europe.  

The structural similarity is the trusted third party as transactional
facilitator and intermediary.  Organizations as various as FSF, the
Apache Foundation, the Eclipse Foundation, SFLC, and the Software
Freedom Conservancy serve in different ways as transactional
intermediaries.  Although their roles are little thought about in
typical discussion, they serve crucial strengthening purposes in the
legal structure of free software commerce.  The incorrect
architectural ambition to replace the legal role of the intermediaries
with better licenses or contribution agreements leads to numerous
confusions, of which the present conversation is just a minor one.

Eben

-- 
 Eben Moglenv: 212-461-1901 
 Professor of Law, Columbia Law School  f: 212-580-0898   moglen@
 Founding Director, Software Freedom Law Centercolumbia.edu
 1995 Broadway (68th Street), fl #17, NYC 10023softwarefreedom.org
 
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Re: [License-discuss] Open Source Eventually License Development

2013-08-17 Thread Lawrence Rosen
Eben Moglen explained:
 Yes, that's the alternative I originally recommended and that we 
 have been discussing Larry Rosen's objection to.  The agreement 
 between D and O might be one designed to create a fiduciary
 relationship, of special trust and accountability, to which the 
 legal system applies uniquely high standards of responsibility.

That's not at all what I objected to. I was merely responding to your
argument that your way (setting up a fiduciary trust relationship) is the
only reliable way to accomplish this goal of Open Source Eventually.

But now that you ask, I would object to turning this into a discussion of
who qualifies as fiduciary of special trust and accountability. Some of us
have different opinions about that. But if that special trust is, as you
predict, honored by that fiduciary, then certainly that software will
eventually be released under the GPL. Your way could work.

As for Richard's question about how to enforce these high standards of
responsibility, maybe you can refer that to a law student to review the ways
one can force a charitable foundation to satisfy the conditions imposed by a
donor. My favorite historical case, in the context of a will, is here:

http://www.jdsupra.com/legalnews/reliving-the-200-year-saga-of-benjamin-f-80
7851/ 

/Larry


-Original Message-
From: Eben Moglen [mailto:mog...@softwarefreedom.org] 
Sent: Saturday, August 17, 2013 11:18 AM
To: r...@gnu.org
Cc: lro...@rosenlaw.com; license-discuss@opensource.org; mo...@askmonty.org;
ka...@gnome.org; mark.atw...@hp.com; nat...@gonzalezmosier.com;
r...@gonzalezmosier.com
Subject: Re: [License-discuss] Open Source Eventually License Development

On Saturday, 17 August 2013, Richard Stallman wrote:

  Suppose developer Ds give the code to organization O, and signs a
  contract with O giving O the right to distribute that code under the
  GNU GPL starting at a future date F.  Is that something O can rely on?
  Is there any way for D to retract that?

Yes, that's the alternative I originally recommended and that we have been
discussing Larry Rosen's objection to.  The agreement between D and O might
be one designed to create a fiduciary relationship, of special trust and
accountability, to which the legal system applies uniquely high standards of
responsibility.  It's this fiduciary relationship with a third party which
entitles you to the intervention of mandatory orders to perform promises.
Another alternative in the relationship with a trusted third party is a
copyright assignment on condition, where the property passing to the trusted
third party is impressed with a trust to perform the condition, which is
free release.  The FSF copyright assignment agreements that you and I
manage, and with which most lawyers in the trade are somewhat familiar, are
an example of this form.  Where the conditional assignment isn't useful, as
in some European copyright systems, the fiduciary relationship design
becomes paramount, as Axel Metzger showed in his architecture of the
Fiduciary License Agreement for FSF Europe.  

The structural similarity is the trusted third party as transactional
facilitator and intermediary.  Organizations as various as FSF, the Apache
Foundation, the Eclipse Foundation, SFLC, and the Software Freedom
Conservancy serve in different ways as transactional intermediaries.
Although their roles are little thought about in typical discussion, they
serve crucial strengthening purposes in the legal structure of free software
commerce.  The incorrect architectural ambition to replace the legal role of
the intermediaries with better licenses or contribution agreements leads
to numerous confusions, of which the present conversation is just a minor
one.

Eben

-- 
 Eben Moglenv: 212-461-1901 
 Professor of Law, Columbia Law School  f: 212-580-0898   moglen@
 Founding Director, Software Freedom Law Centercolumbia.edu
 1995 Broadway (68th Street), fl #17, NYC 10023softwarefreedom.org
 

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Re: [License-discuss] Open Source Eventually License Development

2013-08-16 Thread Luis Villa
On Thu, Aug 15, 2013 at 5:05 PM, Rick Moen r...@linuxmafia.com wrote:
 I am asking this mailing list for help crafting a proprietary license. It
 is certainly ironic but not at all off-topic.

 Speaking for myself (and I am only a friendly hanger-on to OSI), I have
 no problem with you asking.  However, I doubt OSI has relevant expertise,
 and would not be surprised if OSI Board members both have other
 priorities and are wary of involvement in proprietary software licensing.

For what it is worth, I have no significant objection to at least
preliminary discussion happening here; as Rick said, if you're very
sensitive to noise, license-review is the correct list for you.

That said, if the discussion does get serious/time-consuming,
despite a list consensus that it is non-free, I may ask it to move
elsewhere.

Luis
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Re: [License-discuss] Open Source Eventually License Development

2013-08-16 Thread Chris DiBona
Ghostscript is now AGPLd, for what its worth...


On Wed, Aug 14, 2013 at 9:51 AM, Lawrence Rosen lro...@rosenlaw.com wrote:

 Fred Trotter wrote:
  First, I would like for the OSI and FSF people on this list to consider
  some kind of new status for a license, like OSI tolerated
  or OSI Not Open Source But It Doesn't Suck , or
  Not Free Software but tolerated for this purpose or something like.

 Hi Fred,

 I actually like the Ghostscript/Aladdin license, which was essentially
 GPL-after-one-year. I was their attorney at the time and I fully supported
 their business and licensing model. (For what it is worth, so did my
 client's friend, Richard Stallman, who apparently considered this a
 reasonable way then to end up with GPL software.) That said, you should
 note
 that the Ghostscript commercial licensor no longer uses the time-delayed
 open source model. You should perhaps talk directly to the folks at
 Artifex
 to understand their experience with it. In any event, you are free to use
 this model if you want to!

 Your suggestion for a special OSI/FSF license category suffers from another
 problem: Several of the licenses on the current OSI list (including some
 licenses recommended by automated license recommendation tools touted
 around
 here) already are Open Source But They Suck Anyway. OSI and FSF both have
 proven to be sometimes bad judges of license suckiness.  Such categories
 won't help much, given the wide differences of opinions and business
 models around here.

 /Larry

 Lawrence Rosen
 Rosenlaw  Einschlag, a technology law firm (www.rosenlaw.com)
 3001 King Ranch Rd., Ukiah, CA 95482
 Office: 707-485-1242
 Linkedin profile: http://linkd.in/XXpHyu


 -Original Message-
 From: fred trotter [mailto:fred.trot...@gmail.com]
 Sent: Monday, July 29, 2013 2:12 AM
 To: license-discuss@opensource.org; Michael Widenius; ka...@gnome.org;
 mark.atw...@hp.com; Eben Moglen; r...@gnu.org
 Cc: nat...@gonzalezmosier.com; Roberto C. Rondero de Mosier
 Subject: [License-discuss] Open Source Eventually License Development
 snip

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-- 
Director of atypical intellectual property, Google Inc.
Our open source and developer programs can be found at
http://developers.google.com/open-source/
Site, Bio, Pics: http://dibona.com Google Plus:
https://google.com/+cdibona Twitter:
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Re: [License-discuss] Open Source Eventually License Development

2013-08-16 Thread Richard Stallman
[ To any NSA and FBI agents reading my email: please consider
[ whether defending the US Constitution against all enemies,
[ foreign or domestic, requires you to follow Snowden's example.

Unfortunately the open source world has not been very amenable to things
that stray beyond the scope of fairly narrow definitions of open source.

There is a misunderstanding here.  I don't support open source and I
don't follow a definition of open source.  I launched the free
software movement.

The basic idea of the free software movement is that software must
respect the users' freedom.  If a program is not free software,
it is an injustice and should not exist.

Trying to persuade me to relax our standards of freedom in the name of
open source is like asking Edward Snowden to stop publishing leaks
in the name of national security.  It's a fundamental conceptual
confusion and a non-starter.

Thus we have nothing equivalent to Creative Commons for software that
would cover not just CC-BY and CC-BY-SA but also NC, ND and in your case
some kind of time delay license.

Any license which had restrictions comparable to NC or ND would fail
to respect users' freedoms, so it would not be a free software license.

-- 
Dr Richard Stallman
President, Free Software Foundation
51 Franklin St
Boston MA 02110
USA
www.fsf.org  www.gnu.org
Skype: No way! That's nonfree (freedom-denying) software.
  Use Ekiga or an ordinary phone call.

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Re: [License-discuss] Open Source Eventually License Development

2013-08-16 Thread John Cowan
Eben Moglen scripsit:

 Whatever the truth of the adage may be, the point for us is that
 none of this has anything to do with licensing.  Fred Trotter was
 actually asking a question, to which the correct answer is: You don't
 need a license to make something free software at a certain date in
 the future.  Giving a copy to an appropriate agent, with written
 instructions to publish under, e.g. GPLv3 or ASL 2.0 on the future
 date, is quite sufficient.  Any number of reliable intermediaries for
 such purposes exist, and would provide the service gratis.

This procedure is not equivalent, except in the long run, to the kind
of license Fred Trotter wants, because its effect on particular copies
is different.  Suppose that Alice sells Bob the source code to Yoyomat,
a proprietary program with delayed GPL.  After the term has passed, Bob
may now distribute *that very copy* of Yoyomat freely to Charlie under
the terms of the GPL.  In the scenario you outline, he may not; he must
obtain a new copy from the escrow agent.

 This isn't a matter for copyright licensing, because licenses are, in
 J.L. Austin's term, performative utterances.  They are present acts
 of permission, not declarations of future intention, like testaments.

But surely the conditions associated with the permission may include the
effective date.  If I post a sign on my land today saying Hunting and
fishing permitted to all after September 15, 2013, then I may revoke
that permission at any time, but if I *don't* revoke it, surely anyone
can hunt or fish provided it is after the date mentioned.

 There's no point in a copyright holder writing a license that says
 these are the terms today, and those will be my terms tomorrow.

The transaction costs of doing so are lower.  Granted, I could take down
the existing No hunting or fishing sign on September 15 and put up a
Hunting and fishing permitted to all sign, but perhaps I won't be
there on that day.

-- 
He played King Lear as though   John Cowan co...@ccil.org
someone had played the ace. http://www.ccil.org/~cowan
--Eugene Field
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Re: [License-discuss] Open Source Eventually License Development

2013-08-16 Thread Eben Moglen
On Wednesday, 14 August 2013, John Cowan wrote:

  This procedure is not equivalent, except in the long run, to the kind
  of license Fred Trotter wants, because its effect on particular copies
  is different.  Suppose that Alice sells Bob the source code to Yoyomat,
  a proprietary program with delayed GPL.  After the term has passed, Bob
  may now distribute *that very copy* of Yoyomat freely to Charlie under
  the terms of the GPL.  In the scenario you outline, he may not; he must
  obtain a new copy from the escrow agent.

No, Mr Cowan, that's a charming idea, but it's completely wrong.
These are non-exclusive licenses we are discussing.  Everyone is
permitted to copy, modify and redistribute the licensed work on the
stated free terms.  Surely you don't suppose that the licensor could
successfully sue for infringement, after publishing a non-exclusive
free license, because of further copying or modification of a
pre-existing copy of the very same bits?  (You will also notice the
complete inconsistency between the operation of your proposed doctrine
and the first sale rule.)  

My described conveyance is, in every respect, legally identical to
what Fred Trotter was asking about.  Really, you can trust me to know
how free software licenses basically work.

Eben



-- 
 Eben Moglenv: 212-461-1901 
 Professor of Law, Columbia Law School  f: 212-580-0898   moglen@
 Founding Director, Software Freedom Law Centercolumbia.edu
 1995 Broadway (68th Street), fl #17, NYC 10023softwarefreedom.org
 
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Re: [License-discuss] Open Source Eventually License Development

2013-08-16 Thread Bradley M. Kuhn
Fred,

fred trotter wrote at 03:52 (EDT):
 I have been burned pretty badly by people who literally rewrote
 sections of the GPL to suit them and still called it GPL that I know
 that some people will try those shenanigans.

The FSF is quite vigilant about handling situations like this -- it's
one of the reasons that the GPL text itself is still under a copyright
license that forbids modification -- so that situations like this can be
dealt with.

Please report any such issues to the FSF at
license-violat...@fsf.org.  I hope you so-reported them at the time
you encountered them.

But, I think that issue is somewhat off the point here: you're talking
there about people who are attempting to mislead the public by
illegitimately modifying a license text. I doubt the behavior of such
people would be curtailed by a packet of license templates that help
build proprietary-but-eventually-liberated-code business models.

As has been noted in this thread, such business models have been
experimented with since the early 1990s, and most software freedom
advocates find them, at best, problematic compromises, and, at worst,
scourges upon our community.
 
 if every person who benefited indirectly from the GNU compiler would
 donate one cent to FSF and one cent to the OSI per year, neither
 organization would have any problem paying the bills. People don't pay
 because that is the norm in our development culture, this mechanism
 could change that.

Non-profit fundraising is always going to be difficult for orgs like FSF
and OSI, but that's not an argument for violating principles that our
community is based on: permission to redistribute with no royalty nor
any payment upstream is a fundamental tenant of software freedom.  While
Free Software licenses should never discriminate *against* charging for
distribution, it's just not Free Software if there's a *mandate* to
charge money.

Also, note that so many volunteers to the FSF give code rather than
pennies.  That's often much more valuable a contribution, anyway.

 Could someone who knows the story well related what problems the
 people on the other side had?

I can speak from my personal experience with these business models.
During the Ghostscript era, when I was first working at the FSF, I saw
that few people wanted to contribute to GNU Ghostscript.  Most people
just waited to see what Aladdin would do next, since they knew it'd be
released under GPL eventually.  This curtailed the usual culture of
Free Software development.

Since that practice ended for Ghostscript, there have been a myriad of
business models attempting to do this sort of thing, and they all suffer
from that fundamental flaw: there's no way build a proper community of
developers around a Free Software codebase when there's an incentive to
wait N months and see what the primary proprietary developer
liberates.


Free Software licenses -- particularly copyleft ones -- are designed to
create equal footing for all community participants.  Anytime one
contributor to the codebase has more power than everyone else (usually,
due to holding all the copyrights and operating under terms *other* than
the primary Free Software license for the project), it creates serious
flaws of all sorts in the community around that project.
-- 
   -- bkuhn
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Re: [License-discuss] Open Source Eventually License Development

2013-08-15 Thread Henrik Ingo
Fwiw, I don't mind having this discussion on this list. It's not that far
off topic and you're not the first to try.

Still it's my opinion that it's outside osi competence to advice or
recommend the part of your endeavor that is a proprietary license.

Henrik
On 15 Aug 2013 04:10, fred trotter fred.trot...@gmail.com wrote:


 The mandate for this list is facilitate constructive discussion of open
 source licensing and further the goals of the OSI.
 Your argument is that this list only exists to determine whether a given
 license meets the definition of Open Source, and then only discuss it if it
 meets that definition. You are ignoring the further the goals part of the
 purpose of this list.

 I have argued, I hope clearly, how the quality of timer licenses could
 impact the Open Source community, both positively (if done well) and
 negatively (if done poorly).

 Moreover, this very list has debated at length about the best way to
 handle this issue on multiple occasions. All I have done is create a more
 advanced artifact to discuss, so that we can work on specifics instead of
 generalities. If you read carefully, you might note that almost everything
 I am discussing in my proposal relates to balancing business vs Open Source
 community interests.

 I am asking this mailing list for help crafting a proprietary license. It
 is certainly ironic but not at all off-topic.

 -FT



 On Wed, Aug 14, 2013 at 12:45 PM, Henrik Ingo 
 henrik.i...@avoinelama.fiwrote:

 Sorry for accidental sending...

 The time delayed license should of course be an osi approved one, and
 preferably one of the commonly used ones: gpl, bsd, and so on... The
 licenses are what they are and there isn't much to discuss there, you just
 pick one.

 How you intend to write your proprietary license is then outside the osi
 mandate to support, and off topic for this list.

 Henrik
 On 14 Aug 2013 20:40, Henrik Ingo henrik.i...@avoinelama.fi wrote:

 Hi fred

 I think what you are asking for guidance on, is outside the mandate of
 osi, and fsf too. The time delayed license should of
 On 14 Aug 2013 19:24, fred trotter fred.trot...@gmail.com wrote:

 Hi,
I am sending this to both FSF and OSI people. Please tolerate
 my use of the various terms interchangeably, I know the various rules
 but I am talking to two different communities, if at all possible
 please permit me to skip the I don't like your choice of terms
 lecture.

I have just returned from OSCON, where I gave an Ignite talk on
 Open Source Eventually, which is yet-another-fine time ransom license
 that converts to FLOSS. While there I had several meetings with Monty
 Widenius about his Business Source concept. He and I have tentatively
 agreed to merge our efforts. I was also advised by Simon Phipps and
 Deborah Bryant to investigate the history of the concept here on the
 mailing list, which I have done. I have seen the history with
 GhostScript, the thread on delay-able open source licenses from Qian
 Hong and the recent and original discussions about TGGPL from zooko.
 With that historical context in mind, let me outline my aim.

 First, no ransom license of any type should ever be OSI approved as an
 Open Source license or be FSF approved as a Free Software License.
 Ransom licenses are proprietary until they are Open Source or
 Free/Libre. I am not going to ask you to compromise the core values of
 our community by putting lipstick on a pig.

 Second, despite this, both OSI and FSF should consider having a
 position, either formally or informally on these licenses. We need to
 standardize on one specific license text that is known good for this
 type of business approach to avoid license proliferation. Real world
 FOSS users would be better served by having a standard license, than
 having lots of slight variations because:

 * All of the promotors of this concept are writing different licenses,
 so we are again facing a license proliferation problem.
 * Poorly written or understood versions of this license could taint
 the release of subsequently released FLOSS software.
 * Automated license compliance systems will have a difficult time
 evaluating licenses that always have different data (dates) embedded
 in the license text.
 * Companies using the delayed method should have the option to choose
 from the menu of OSI/FSF/CC licenses as the target licenses
 * The license should support different proprietary intents, such as
 Monty's aim to favor small business with costless versions, or zooko's
 idea of creating a proprietary community. No version of these
 proprietary intents should be able to mar the conversion of the
 license to a FOSS license at the specified conversion date.
 * Users should be able to trust that they have the right to perform
 the conversion to FOSS themselves and should not be in a position to
 pay for software with the mere promise of a subsequent and separate
 release.
 * Companies who are using this method should have a limit to the

Re: [License-discuss] Open Source Eventually License Development

2013-08-15 Thread fred trotter
 Several of the licenses on the current OSI list (including some
 licenses recommended by automated license recommendation tools touted
 around
 here) already are Open Source But They Suck Anyway. OSI and FSF both have
 proven to be sometimes bad judges of license suckiness.


Would it be prudent to limit the licenses that would be supported under the
time delay model to a limited set... to discourage License Proliferation
the way the Google Stance did at one time:

http://en.wikipedia.org/wiki/License_proliferation#Google.27s_stance



-- 
Fred Trotter
Blog: http://radar.oreilly.com/fredt
Twitter: https://twitter.com/fredtrotter
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Re: [License-discuss] Open Source Eventually License Development

2013-08-15 Thread fred trotter
Eben,
   As always I feel like I have to apologize for my language skills
when responding to you. This is so elegantly written it almost seems rude
to write replies throughout... nonetheless:

On Wed, Aug 14, 2013 at 5:44 PM, Eben Moglen mog...@softwarefreedom.orgwrote:

 Whatever the truth of the adage may be, the point for us is that none
 of this has anything to do with licensing.  Fred Trotter was actually
 asking a question, to which the correct answer is: You don't need a
 license to make something free software at a certain date in the
 future.  Giving a copy to an appropriate agent, with written
 instructions to publish under, e.g. GPLv3 or ASL 2.0 on the future
 date, is quite sufficient.  Any number of reliable intermediaries for
 such purposes exist, and would provide the service gratis.


Skinning cats.. this way of skinning requires a third party which has
upsides and downsides.
Does anyone else prefer the third party approach or have opinions on how
that would work?

I would be concerned that legit people would work with Apache Foundation,
OSI or FSF or something reasonable as the trusted third party, but then
some people would try to use their Aunt Jenny as the trusted third
party... So this would require formalization and brand control to work
effectively too...



 This isn't a matter for copyright licensing, because licenses are, in
 J.L. Austin's term, performative utterances.  They are present acts
 of permission, not declarations of future intention, like testaments.


At least one benefit to this distinction is that the word testament with
its religious affiliations would make for some delightful project naming
puns ;)


 There's no point in a copyright holder writing a license that says
 these are the terms today, and those will be my terms tomorrow.
 Unless the license is irrevocable, only the terms of present
 permission matter.  Once the software *is* free, on the other end,
 only the terms of permission then granted matter, regardless of any
 prior expression of an intention to provide different free terms.  So
 there is no legal issue of significance involved in the business model
 of postponing freedom for interim proprietary distribution.  Simple
 conveyancing is legally quite sufficient.  The business method does
 not fail because people have mumbled incorrect magic words.


While I must admit that lawyer-speak does strike me as series of
incantations, I am not merely discussing the issue of magic words.

This is more an issue of brand maintenance. Lets say I create license
called Fred's Unusually Nice License and then I convince everyone in the
investor/developer communities that this is a good way to make money and
still make Libre software in the end. But then someone writes a license
called Franks Usual Dissonance License as the temporary proprietary
license that goes with my FUN license. Inside the FUD license, Frank ads a
clause that says no matter what FUN, or the target OSI/FSF license says,
this code can only be used for educational purposes... ever or else...
Frank would attempt to do this type of thing because he can use the
reputation that FUN has developed but still try and trap users with his
ability to script his own proprietary license and use it with FUN. I have
been burned pretty badly by people who literally rewrote sections of the
GPL to suit them and still called it GPL that I know that some people
will try those shenanigans.

The terms of the FUD license would contradict both the contents of FUN and
the OSI/FSF target license. This would create a very confusing situation
that ultimately damage the brand of the license. So FUN needs to say
something specific about that kind of thing not being allowed.. and very
naughty indeed... It would be nice if it could even be enforceable
language. Protecting developers and users who trusted FUN without carefully
reading FUD. Given that FUD could have lots of different stuff inside it,
it is entirely possible that people would not read it carefully enough. So
I guess a feature of the OSE license that I would like to develop is that
it would be relatively safe even from users who were just doing the click
through...



 It is simple to demonstrate from an economic perspective that the
 value of the proprietary product sold on a fixed-term delay of free
 licensing converges, after the first such period of distribution, to
 the value of one upgrade minus the cost of applying it, assuming the
 downstream user attributes absolutely no value to free licensing over
 proprietary licensing, which is in fact usually a bad assumption.


What if the end user has a special appreciation for paying for free
software in a way that ensures the core developer stays in business? That
is different than merely valuing one over the other. The whole point here
is to stop the current zero-sum game for proprietary limitations and
complete freedom where we have to make difficult choices between making
money and making Libre software. 

Re: [License-discuss] Open Source Eventually License Development

2013-08-15 Thread John Cowan
fred trotter scripsit:

 This is more an issue of brand maintenance. Lets say I create license
 called Fred's Unusually Nice License and then I convince everyone
 in the investor/developer communities that this is a good way to make
 money and still make Libre software in the end. But then someone
 writes a license called Franks Usual Dissonance License as the
 temporary proprietary license that goes with my FUN license.

FUN should provide the proprietary license itself: Ghu knows, they
are all pretty much the same.  Only the open-source license should be
templated.

 I have been burned pretty badly by people who literally rewrote
 sections of the GPL to suit them and still called it GPL that I know
 that some people will try those shenanigans.

When you find such people, point the FSF at them!  They are blatantly
violating the FSF's copyright, as the license for the GPL itself
(contained in the first sentence) plainly says changing it is not
allowed.  $50,000 damages is a jolly good threat to get people to stop.

-- 
One art / There is  John Cowan co...@ccil.org
No less / No more   http://www.ccil.org/~cowan
All things / To do
With sparks / Galore --Douglas Hofstadter
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Re: [License-discuss] Open Source Eventually License Development

2013-08-15 Thread Tzeng, Nigel H.
It is difficult to sustain a major release cycle of 6 months and have any 
significantly new capabilities at each release cycle.  Easier at the beginning 
as you're ramping up but once you have a mature product it strikes me as 
incremental.  The low hanging fruit has been built, new capabilities will 
require more baking.  Your time expectations seem out of whack.  Id's 5 year 
cycle seems much more representative.

In any case, unless the cost is trivial I'd likely just wait 9 months and stay 
one rev back for free which is Mr Moglen's point.  And you better be giving me 
a stable version X.0.1 with bug fixes for free whatever else you do.

You make the sale to me because you have a time release and your close 
competitors don't. All else being more or less equal I'll buy your product 
because I like the concept. Not because I'm going to sign up to pay for what 
your competitors give me for free.  I bought pixelmator a while back for $40 
back on rev 1.4 or something.  They're at rev 2.2 four years later and I still 
get free updates via the app store.  That's what I expect from a software 
product these days.

With regards to a FOSS drug database the software itself strikes me as mostly 
straightforward.  It's the data that is of great value.  You could easily open 
source the software and sell a subscription to database updates.

From: fred trotter fred.trot...@gmail.commailto:fred.trot...@gmail.com
Reply-To: License Discuss 
license-discuss@opensource.orgmailto:license-discuss@opensource.org
Date: Thursday, August 15, 2013 3:52 AM
To: Eben Moglen 
mog...@softwarefreedom.orgmailto:mog...@softwarefreedom.org, License 
Discuss license-discuss@opensource.orgmailto:license-discuss@opensource.org
Subject: Re: [License-discuss] Open Source Eventually License Development


This clearing price is too small to be profitable except at very high
volumes or in other extraordinary circumstances.

These extraordinary circumstances are fairly easy to contrive.
For instance, the current natural rhythm of software development is something 
like

1. Release stable version X.0
2. Create new version X.1 with lots of new untested and unstable features
3. Test, Release, Repeat as needed, incrementing minor versions
4. Stable version incremented. X+1.0 is released

Most users hop from stable version to stable version, which which keeps 
switching costs very low, and making your economic assessment correct. But 
under a time delay model you might shift to a development cycle like so.

1. Release version X for sale under a 9 month timer
2. Release version X.1 under a FLOSS license, totally unstable but presently 
Libre
3. Test, Release, Repeat as needed incrementing minor versions for 6 months
4. Release version X+1 for sale under a 9 month timer. There is no stable 
version available under FLOSS, but there are two stable versions under a timer.
5. Users must choose between a purchasing a stable version that will be Libre 
in 3 months or paying the same thing for an improved version that will be Libre 
in 9 months.


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Re: [License-discuss] Open Source Eventually License Development

2013-08-15 Thread Rick Moen
Quoting fred trotter (fred.trot...@gmail.com):

 The mandate for this list is facilitate constructive discussion of open
 source licensing and further the goals of the OSI.
 Your argument is that this list only exists to determine whether a given
 license meets the definition of Open Source, and then only discuss it if it
 meets that definition. You are ignoring the further the goals part of the
 purpose of this list.

As a point of clarification, evaulation of licences proposed for OSI
Certified status got moved to separate mailing list license-review when
that forum was established a couple of years back.  This forum has been
allowed to be more free-form.

 I am asking this mailing list for help crafting a proprietary license. It
 is certainly ironic but not at all off-topic.

Speaking for myself (and I am only a friendly hanger-on to OSI), I have
no problem with you asking.  However, I doubt OSI has relevant expertise,
and would not be surprised if OSI Board members both have other
priorities and are wary of involvement in proprietary software licensing. 

-- 
Cheers,   I love stateless systems. 
Rick Moen Don't they have drawbacks? 
r...@linuxmafia.com   Don't what have drawbacks?
McQ! (4x80)   -- Sam Hughes
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Re: [License-discuss] Open Source Eventually License Development

2013-08-14 Thread Richard Stallman
[ To any NSA and FBI agents reading my email: please consider
[ whether defending the US Constitution against all enemies,
[ foreign or domestic, requires you to follow Snowden's example.

All the FSF will say about it is that if and when the program becomes
free software, at that point we could recommend its use, and until then
we urge people not to use it.

-- 
Dr Richard Stallman
President, Free Software Foundation
51 Franklin St
Boston MA 02110
USA
www.fsf.org  www.gnu.org
Skype: No way! That's nonfree (freedom-denying) software.
  Use Ekiga or an ordinary phone call.

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Re: [License-discuss] Open Source Eventually License Development

2013-08-14 Thread Henrik Ingo
Hi fred

I think what you are asking for guidance on, is outside the mandate of osi,
and fsf too. The time delayed license should of
On 14 Aug 2013 19:24, fred trotter fred.trot...@gmail.com wrote:

 Hi,
I am sending this to both FSF and OSI people. Please tolerate
 my use of the various terms interchangeably, I know the various rules
 but I am talking to two different communities, if at all possible
 please permit me to skip the I don't like your choice of terms
 lecture.

I have just returned from OSCON, where I gave an Ignite talk on
 Open Source Eventually, which is yet-another-fine time ransom license
 that converts to FLOSS. While there I had several meetings with Monty
 Widenius about his Business Source concept. He and I have tentatively
 agreed to merge our efforts. I was also advised by Simon Phipps and
 Deborah Bryant to investigate the history of the concept here on the
 mailing list, which I have done. I have seen the history with
 GhostScript, the thread on delay-able open source licenses from Qian
 Hong and the recent and original discussions about TGGPL from zooko.
 With that historical context in mind, let me outline my aim.

 First, no ransom license of any type should ever be OSI approved as an
 Open Source license or be FSF approved as a Free Software License.
 Ransom licenses are proprietary until they are Open Source or
 Free/Libre. I am not going to ask you to compromise the core values of
 our community by putting lipstick on a pig.

 Second, despite this, both OSI and FSF should consider having a
 position, either formally or informally on these licenses. We need to
 standardize on one specific license text that is known good for this
 type of business approach to avoid license proliferation. Real world
 FOSS users would be better served by having a standard license, than
 having lots of slight variations because:

 * All of the promotors of this concept are writing different licenses,
 so we are again facing a license proliferation problem.
 * Poorly written or understood versions of this license could taint
 the release of subsequently released FLOSS software.
 * Automated license compliance systems will have a difficult time
 evaluating licenses that always have different data (dates) embedded
 in the license text.
 * Companies using the delayed method should have the option to choose
 from the menu of OSI/FSF/CC licenses as the target licenses
 * The license should support different proprietary intents, such as
 Monty's aim to favor small business with costless versions, or zooko's
 idea of creating a proprietary community. No version of these
 proprietary intents should be able to mar the conversion of the
 license to a FOSS license at the specified conversion date.
 * Users should be able to trust that they have the right to perform
 the conversion to FOSS themselves and should not be in a position to
 pay for software with the mere promise of a subsequent and separate
 release.
 * Companies who are using this method should have a limit to the
 maximum time they can delay a release, because 20 years would be just
 as bad as a software patent.
 * The licensing methods should be compatible with automated compliance
 software.
 * The licensing methods should be compatible with current file
 conventions README, LICENSE, COPYRIGHT etc etc
 * The license should work for hardware, bioware and other things,
 not just software.
 * end users should be mostly protected from any obvious misuse of the
 license

 With that in mind, I would like to propose the following process to
 develop this idea further.

 First, I would like for the OSI and FSF people on this list to
 consider some kind of new status for a license, like OSI tolerated
 or OSI Not Open Source But It Doesn't Suck , or Not Free Software
 but tolerated for this purpose or something like. Some way to clearly
 mark this as the standard way of time delaying a FOSS release but
 not actually OSI/FSF Approved.

 Second I would like for interested parties to join me developing the
 license on GitHub.
 https://github.com/ftrotter/OSE

 At this stage, I am accepting issue creation and will be using that to
 remove obvious bugs from the text. If a git pull feels comfortable to
 you, that works too. I will of course require copyright assignment for
 text modifications.
 Once the basic license no longer sucks I will setup a co-ment instance
 for public comment.
 Finally I might be able to get NOD (my employer) to actually pay for a
 legal review once everything is done.

 We will be releasing data sets under the resulting license as soon as
 it is ready.

 Remember, I am not specifically advocating for the Time Ransom
 License approach. I remain somewhat uncomfortable with the approach.
 However, I am somewhat more uncomfortable not being able to make a
 living making Libre Software. There are enough people doing this that
 unless we sort something formal out, an FLOSS project is going to be
 put in a situation where 

Re: [License-discuss] Open Source Eventually License Development

2013-08-14 Thread Henrik Ingo
Sorry for accidental sending...

The time delayed license should of course be an osi approved one, and
preferably one of the commonly used ones: gpl, bsd, and so on... The
licenses are what they are and there isn't much to discuss there, you just
pick one.

How you intend to write your proprietary license is then outside the osi
mandate to support, and off topic for this list.

Henrik
On 14 Aug 2013 20:40, Henrik Ingo henrik.i...@avoinelama.fi wrote:

 Hi fred

 I think what you are asking for guidance on, is outside the mandate of
 osi, and fsf too. The time delayed license should of
 On 14 Aug 2013 19:24, fred trotter fred.trot...@gmail.com wrote:

 Hi,
I am sending this to both FSF and OSI people. Please tolerate
 my use of the various terms interchangeably, I know the various rules
 but I am talking to two different communities, if at all possible
 please permit me to skip the I don't like your choice of terms
 lecture.

I have just returned from OSCON, where I gave an Ignite talk on
 Open Source Eventually, which is yet-another-fine time ransom license
 that converts to FLOSS. While there I had several meetings with Monty
 Widenius about his Business Source concept. He and I have tentatively
 agreed to merge our efforts. I was also advised by Simon Phipps and
 Deborah Bryant to investigate the history of the concept here on the
 mailing list, which I have done. I have seen the history with
 GhostScript, the thread on delay-able open source licenses from Qian
 Hong and the recent and original discussions about TGGPL from zooko.
 With that historical context in mind, let me outline my aim.

 First, no ransom license of any type should ever be OSI approved as an
 Open Source license or be FSF approved as a Free Software License.
 Ransom licenses are proprietary until they are Open Source or
 Free/Libre. I am not going to ask you to compromise the core values of
 our community by putting lipstick on a pig.

 Second, despite this, both OSI and FSF should consider having a
 position, either formally or informally on these licenses. We need to
 standardize on one specific license text that is known good for this
 type of business approach to avoid license proliferation. Real world
 FOSS users would be better served by having a standard license, than
 having lots of slight variations because:

 * All of the promotors of this concept are writing different licenses,
 so we are again facing a license proliferation problem.
 * Poorly written or understood versions of this license could taint
 the release of subsequently released FLOSS software.
 * Automated license compliance systems will have a difficult time
 evaluating licenses that always have different data (dates) embedded
 in the license text.
 * Companies using the delayed method should have the option to choose
 from the menu of OSI/FSF/CC licenses as the target licenses
 * The license should support different proprietary intents, such as
 Monty's aim to favor small business with costless versions, or zooko's
 idea of creating a proprietary community. No version of these
 proprietary intents should be able to mar the conversion of the
 license to a FOSS license at the specified conversion date.
 * Users should be able to trust that they have the right to perform
 the conversion to FOSS themselves and should not be in a position to
 pay for software with the mere promise of a subsequent and separate
 release.
 * Companies who are using this method should have a limit to the
 maximum time they can delay a release, because 20 years would be just
 as bad as a software patent.
 * The licensing methods should be compatible with automated compliance
 software.
 * The licensing methods should be compatible with current file
 conventions README, LICENSE, COPYRIGHT etc etc
 * The license should work for hardware, bioware and other things,
 not just software.
 * end users should be mostly protected from any obvious misuse of the
 license

 With that in mind, I would like to propose the following process to
 develop this idea further.

 First, I would like for the OSI and FSF people on this list to
 consider some kind of new status for a license, like OSI tolerated
 or OSI Not Open Source But It Doesn't Suck , or Not Free Software
 but tolerated for this purpose or something like. Some way to clearly
 mark this as the standard way of time delaying a FOSS release but
 not actually OSI/FSF Approved.

 Second I would like for interested parties to join me developing the
 license on GitHub.
 https://github.com/ftrotter/OSE

 At this stage, I am accepting issue creation and will be using that to
 remove obvious bugs from the text. If a git pull feels comfortable to
 you, that works too. I will of course require copyright assignment for
 text modifications.
 Once the basic license no longer sucks I will setup a co-ment instance
 for public comment.
 Finally I might be able to get NOD (my employer) to actually pay for a
 legal review once everything is 

Re: [License-discuss] Open Source Eventually License Development

2013-08-14 Thread Lawrence Rosen
Fred Trotter wrote:
 First, I would like for the OSI and FSF people on this list to consider 
 some kind of new status for a license, like OSI tolerated
 or OSI Not Open Source But It Doesn't Suck , or 
 Not Free Software but tolerated for this purpose or something like.

Hi Fred,

I actually like the Ghostscript/Aladdin license, which was essentially
GPL-after-one-year. I was their attorney at the time and I fully supported
their business and licensing model. (For what it is worth, so did my
client's friend, Richard Stallman, who apparently considered this a
reasonable way then to end up with GPL software.) That said, you should note
that the Ghostscript commercial licensor no longer uses the time-delayed
open source model. You should perhaps talk directly to the folks at Artifex
to understand their experience with it. In any event, you are free to use
this model if you want to!

Your suggestion for a special OSI/FSF license category suffers from another
problem: Several of the licenses on the current OSI list (including some
licenses recommended by automated license recommendation tools touted around
here) already are Open Source But They Suck Anyway. OSI and FSF both have
proven to be sometimes bad judges of license suckiness.  Such categories
won't help much, given the wide differences of opinions and business
models around here.

/Larry

Lawrence Rosen
Rosenlaw  Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Rd., Ukiah, CA 95482
Office: 707-485-1242
Linkedin profile: http://linkd.in/XXpHyu 


-Original Message-
From: fred trotter [mailto:fred.trot...@gmail.com] 
Sent: Monday, July 29, 2013 2:12 AM
To: license-discuss@opensource.org; Michael Widenius; ka...@gnome.org;
mark.atw...@hp.com; Eben Moglen; r...@gnu.org
Cc: nat...@gonzalezmosier.com; Roberto C. Rondero de Mosier
Subject: [License-discuss] Open Source Eventually License Development
snip 

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Re: [License-discuss] Open Source Eventually License Development

2013-08-14 Thread Tzeng, Nigel H.
FT,

Unfortunately the open source world has not been very amenable to things
that stray beyond the scope of fairly narrow definitions of open source.
Thus we have nothing equivalent to Creative Commons for software that
would cover not just CC-BY and CC-BY-SA but also NC, ND and in your case
some kind of time delay license.

Once you get into the shared source, academic/non-commercial use source,
reference source, etc I'm not aware of any organization that wants to care
about any issues you have nor very willing to acknowledge any merits of
these kinds of licenses.

CC at least provides a framework to reduce proliferation, etc and if you
pick a ND or NC feature it'll warn you that it isn't a Free Culture
license but is happily inclusive of your desire to share your work in some
fashion and understands you need to make a living and can't always share
to the level you might otherwise wish to.

I would suggest you talk with CC but I suspect you will run into the
mantra of CC doesn't cover software.

Regards,

Nigel

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Re: [License-discuss] Open Source Eventually License Development

2013-08-14 Thread fred trotter
The mandate for this list is facilitate constructive discussion of open
source licensing and further the goals of the OSI.
Your argument is that this list only exists to determine whether a given
license meets the definition of Open Source, and then only discuss it if it
meets that definition. You are ignoring the further the goals part of the
purpose of this list.

I have argued, I hope clearly, how the quality of timer licenses could
impact the Open Source community, both positively (if done well) and
negatively (if done poorly).

Moreover, this very list has debated at length about the best way to handle
this issue on multiple occasions. All I have done is create a more advanced
artifact to discuss, so that we can work on specifics instead of
generalities. If you read carefully, you might note that almost everything
I am discussing in my proposal relates to balancing business vs Open Source
community interests.

I am asking this mailing list for help crafting a proprietary license. It
is certainly ironic but not at all off-topic.

-FT



On Wed, Aug 14, 2013 at 12:45 PM, Henrik Ingo henrik.i...@avoinelama.fiwrote:

 Sorry for accidental sending...

 The time delayed license should of course be an osi approved one, and
 preferably one of the commonly used ones: gpl, bsd, and so on... The
 licenses are what they are and there isn't much to discuss there, you just
 pick one.

 How you intend to write your proprietary license is then outside the osi
 mandate to support, and off topic for this list.

 Henrik
 On 14 Aug 2013 20:40, Henrik Ingo henrik.i...@avoinelama.fi wrote:

 Hi fred

 I think what you are asking for guidance on, is outside the mandate of
 osi, and fsf too. The time delayed license should of
 On 14 Aug 2013 19:24, fred trotter fred.trot...@gmail.com wrote:

 Hi,
I am sending this to both FSF and OSI people. Please tolerate
 my use of the various terms interchangeably, I know the various rules
 but I am talking to two different communities, if at all possible
 please permit me to skip the I don't like your choice of terms
 lecture.

I have just returned from OSCON, where I gave an Ignite talk on
 Open Source Eventually, which is yet-another-fine time ransom license
 that converts to FLOSS. While there I had several meetings with Monty
 Widenius about his Business Source concept. He and I have tentatively
 agreed to merge our efforts. I was also advised by Simon Phipps and
 Deborah Bryant to investigate the history of the concept here on the
 mailing list, which I have done. I have seen the history with
 GhostScript, the thread on delay-able open source licenses from Qian
 Hong and the recent and original discussions about TGGPL from zooko.
 With that historical context in mind, let me outline my aim.

 First, no ransom license of any type should ever be OSI approved as an
 Open Source license or be FSF approved as a Free Software License.
 Ransom licenses are proprietary until they are Open Source or
 Free/Libre. I am not going to ask you to compromise the core values of
 our community by putting lipstick on a pig.

 Second, despite this, both OSI and FSF should consider having a
 position, either formally or informally on these licenses. We need to
 standardize on one specific license text that is known good for this
 type of business approach to avoid license proliferation. Real world
 FOSS users would be better served by having a standard license, than
 having lots of slight variations because:

 * All of the promotors of this concept are writing different licenses,
 so we are again facing a license proliferation problem.
 * Poorly written or understood versions of this license could taint
 the release of subsequently released FLOSS software.
 * Automated license compliance systems will have a difficult time
 evaluating licenses that always have different data (dates) embedded
 in the license text.
 * Companies using the delayed method should have the option to choose
 from the menu of OSI/FSF/CC licenses as the target licenses
 * The license should support different proprietary intents, such as
 Monty's aim to favor small business with costless versions, or zooko's
 idea of creating a proprietary community. No version of these
 proprietary intents should be able to mar the conversion of the
 license to a FOSS license at the specified conversion date.
 * Users should be able to trust that they have the right to perform
 the conversion to FOSS themselves and should not be in a position to
 pay for software with the mere promise of a subsequent and separate
 release.
 * Companies who are using this method should have a limit to the
 maximum time they can delay a release, because 20 years would be just
 as bad as a software patent.
 * The licensing methods should be compatible with automated compliance
 software.
 * The licensing methods should be compatible with current file
 conventions README, LICENSE, COPYRIGHT etc etc
 * The license should work for hardware, bioware and 

Re: [License-discuss] Open Source Eventually License Development

2013-08-14 Thread Richard Stallman
[ To any NSA and FBI agents reading my email: please consider
[ whether defending the US Constitution against all enemies,
[ foreign or domestic, requires you to follow Snowden's example.

I actually like the Ghostscript/Aladdin license, which was essentially
GPL-after-one-year. I was their attorney at the time and I fully supported
their business and licensing model. (For what it is worth, so did my
client's friend, Richard Stallman, who apparently considered this a
reasonable way then to end up with GPL software.)

That is not quite accurate.  I considered it a problematical
compromise.  At least it gave us free software after a year.

-- 
Dr Richard Stallman
President, Free Software Foundation
51 Franklin St
Boston MA 02110
USA
www.fsf.org  www.gnu.org
Skype: No way! That's nonfree (freedom-denying) software.
  Use Ekiga or an ordinary phone call.

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Re: [License-discuss] Open Source Eventually License Development

2013-08-14 Thread Lawrence Rosen
Richard Stallman wrote:
 I considered it a problematical compromise.  At least it gave us free
software after a year.

Precisely my point: FOSS is better late than never.

/Larry



-Original Message-
From: Richard Stallman [mailto:r...@gnu.org] 
Sent: Wednesday, August 14, 2013 2:24 PM
To: lro...@rosenlaw.com
Cc: license-discuss@opensource.org; mo...@askmonty.org; ka...@gnome.org;
mark.atw...@hp.com; mog...@softwarefreedom.org; nat...@gonzalezmosier.com;
r...@gonzalezmosier.com; lro...@rosenlaw.com
Subject: Re: [License-discuss] Open Source Eventually License Development

[ To any NSA and FBI agents reading my email: please consider
[ whether defending the US Constitution against all enemies,
[ foreign or domestic, requires you to follow Snowden's example.

I actually like the Ghostscript/Aladdin license, which was essentially
GPL-after-one-year. I was their attorney at the time and I fully
supported
their business and licensing model. (For what it is worth, so did my
client's friend, Richard Stallman, who apparently considered this a
reasonable way then to end up with GPL software.)

That is not quite accurate.  I considered it a problematical compromise.  At
least it gave us free software after a year.

--
Dr Richard Stallman
President, Free Software Foundation
51 Franklin St
Boston MA 02110
USA
www.fsf.org  www.gnu.org
Skype: No way! That's nonfree (freedom-denying) software.
  Use Ekiga or an ordinary phone call.


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Re: [License-discuss] Open Source Eventually License Development

2013-08-14 Thread Eben Moglen
Whatever the truth of the adage may be, the point for us is that none
of this has anything to do with licensing.  Fred Trotter was actually
asking a question, to which the correct answer is: You don't need a
license to make something free software at a certain date in the
future.  Giving a copy to an appropriate agent, with written
instructions to publish under, e.g. GPLv3 or ASL 2.0 on the future
date, is quite sufficient.  Any number of reliable intermediaries for
such purposes exist, and would provide the service gratis.

This isn't a matter for copyright licensing, because licenses are, in
J.L. Austin's term, performative utterances.  They are present acts
of permission, not declarations of future intention, like testaments.
There's no point in a copyright holder writing a license that says
these are the terms today, and those will be my terms tomorrow.
Unless the license is irrevocable, only the terms of present
permission matter.  Once the software *is* free, on the other end,
only the terms of permission then granted matter, regardless of any
prior expression of an intention to provide different free terms.  So
there is no legal issue of significance involved in the business model
of postponing freedom for interim proprietary distribution.  Simple
conveyancing is legally quite sufficient.  The business method does
not fail because people have mumbled incorrect magic words.

It is simple to demonstrate from an economic perspective that the
value of the proprietary product sold on a fixed-term delay of free
licensing converges, after the first such period of distribution, to
the value of one upgrade minus the cost of applying it, assuming the
downstream user attributes absolutely no value to free licensing over
proprietary licensing, which is in fact usually a bad assumption.
This clearing price is too small to be profitable except at very high
volumes or in other extraordinary circumstances.  The business model
fails for simple economic reasons--because the competition provided
for one's present product by the last version one has freed is almost
always too strong to withstand--not for legal ones.

The natural history is in accord with theory on this subject.  RMS was
correct that this was a problematic compromise, but even more
problematic for the folks on the other side.

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