Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 8:21 PM, Rick Moen wrote: > Quoting Ben Tilly (bti...@gmail.com): [...] >> If the license dissuades people that you would like to have using your >> software, it is also defective. >> >> Licenses have multiple potential failure modes. Not all of which >> happen in a court room. There is value in standardized licenses. >> There is value in simple licenses. Sometimes this value outweighs the >> value of having said *exactly* what you want said. > > Indeed. > > Death and taxes hereby incorporated by reference. > > Suggestion: What the world really needs is a book listing all ways > to go wrong with licensing. Might be your calling, Ben. I think that high on the list should be, "Accepting advice from people who are unqualified to give it." Which disqualifies me pretty soundly. I'll go back to Perl, math and A/B testing. I know those pretty well. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chris Travers (ch...@metatrontech.com): > > Can you name a single reason why this utterly bizarre question has any > > connection whatsover to anything I've said? It doesn't. > > Yes I can. And I can tell you why it's not so bizarre. It has no discernable connection whatsoever to anything I've said. I continue to have no idea why this very odd question was addressed to me. > Again my understanding is that 17 USC 102(b) only applies to works > which are practical rather than entertaining And this is relevant to what? > ...and it protects the right to copy whatever you reasonably have to > in order to achieve interoperability. I was just wondering if you had > any cases which suggested a contrary understanding. I wish you luck in learning more about the idea-expression divide and related distinction between patents and copyrights. I am not a free of charge teacher. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 8:10 PM, Rick Moen wrote: > Quoting Chris Travers (ch...@metatrontech.com): > >> Can you name a single case where a US court has said that if literal >> copying of code is required for interoperability of practical software >> or other practical tools (printer cartridges, garage door openers, >> etc), that this gives the copyright owner control over the markets for >> add-on products? > > Can you name a single reason why this utterly bizarre question has any > connection whatsover to anything I've said? It doesn't. Yes I can. And I can tell you why it's not so bizarre. When you look at cases like Atari v. Nintendo, or Midway v. Arctic, these cases involve works of entertainment. When we look at cases like Galoob v. Nintendo, Lexmark v. SCC, Sony v. Connectix, and Oracle v. Google, these cases are about practical tools. There is a huge statutory difference between these two types of cases: The latter implicate 17 USC 102(b) while the former do not. In other words there are no issues in 17 USC 102(b) with classifying The Wind Done Gone as an unathorized derivative work of Gone with the Wind, but there are when classifying literal copies of printer cartridge authentication software as copyright infringement even where the copying is both unauthorized and literal. That section prevents copyright from being used to enforce things that are at the core of patent law, including practical techniques and tools. Now, here's how I read the latter line of cases and I want you to go and tell me why you think I am misreading them. Galoob was about whether Midway v. Actic prevented a vendor from making a product that, among other things skipping levels in a game. The court approached the program in question (Game Genie) as being the functional equivalent of a VCR being used to fast forward through scenes of a movie. To the extent that a new audiovisual work was produced (ala Midway) this was considered to be fair use, just as the copyright owner can't say that when you fast forward through part of a movie you are creating an unauthorized derivative work (drawing heavily I think on Betamax and other related precedents). Lexmark involved the case of Static Control copying Lexmark's copyrighted works verbatim and including them with their printer cartridges. The court first held that 17 USC 102(b) applied to areas functionally required for these aftermarket parts, and then concluded that after copying required for interop was removed from the equation, it didn't reach de minimis levels required for infringement. In other words, Lexmark couldn't make their printers dependent on software in the cartridge and then use this to control after market purchases of printer cartridges. This is probably the most similar to the linking issue and the GPL. In Sony, Connectix was making a software emulator for a Sony game console. They tried a bunch of ways to reverse engineer the firmware and eventually resorted to copying it, reverse compiling it, and then having a another team write compatible firmware. Sony sued alleging copyright infringement and the court held that copying was done only to accomplish goals protected by 17 USC 102(b) and therefore it was fair use. Similar to Sony, Oracle involved a case where Google was making a clone of Oracle's software. The court held that copying API definitions was protected to the extent it was necessary to accomplish goals protected in 17 USC 102(b). The fact that the API definitions must be reproduced exactly in order to be functionally compatible means they cannot be given copyright protection regardless of the level of literal copying going on. So there's my understanding. I have given you some case law I have read and why I understand it to be the way it is. That is quite frankly more than you have done. These aren't new issues, and it surprises me that people ignore that section of US law when it comes to questions of what the GPL requires. Again my understanding is that 17 USC 102(b) only applies to works which are practical rather than entertaining, and it protects the right to copy whatever you reasonably have to in order to achieve interoperability. I was just wondering if you had any cases which suggested a contrary understanding. Best Wishes, Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Ben Tilly (bti...@gmail.com): > > Mu. The premise is defective. > > Really? No, just kidding. Or: I was hoping you would argue, as it's much fun. > If the license dissuades people that you would like to have using your > software, it is also defective. > > Licenses have multiple potential failure modes. Not all of which > happen in a court room. There is value in standardized licenses. > There is value in simple licenses. Sometimes this value outweighs the > value of having said *exactly* what you want said. Indeed. Death and taxes hereby incorporated by reference. Suggestion: What the world really needs is a book listing all ways to go wrong with licensing. Might be your calling, Ben. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chris Travers (ch...@metatrontech.com): > Can you name a single case where a US court has said that if literal > copying of code is required for interoperability of practical software > or other practical tools (printer cartridges, garage door openers, > etc), that this gives the copyright owner control over the markets for > add-on products? Can you name a single reason why this utterly bizarre question has any connection whatsover to anything I've said? It doesn't. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 7:11 PM, Rick Moen wrote: > Quoting Ben Tilly (bti...@gmail.com): [...] >> If a license does what I want 90% of the time quite well, and fails >> 10% of the time, is it better or worse than a license that does >> something you find merely OK 100% of the time? > > Mu. The premise is defective. Really? > If the licence doesn't grant the rights you wish granted, then it is > defective 100% of the time. If the license dissuades people that you would like to have using your software, it is also defective. Legalese that says exactly what you want said is excess verbiage in your license that will cause some people to ignore your software because they don't want to deal with analyzing the license. Licenses have multiple potential failure modes. Not all of which happen in a court room. There is value in standardized licenses. There is value in simple licenses. Sometimes this value outweighs the value of having said *exactly* what you want said. > Failing to grant the rights you wish to grant might be evidenced by, > e.g., 10% of the recipients behaving in ways you intended to disallow, > but your chosen terms allowed this, and yet you are surprised. "Don't like" and "intend to disallow" are not equivalent. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Rick: Can you name a single case where a US court has said that if literal copying of code is required for interoperability of practical software or other practical tools (printer cartridges, garage door openers, etc), that this gives the copyright owner control over the markets for add-on products? It seems to me that courts in the US have consistently rejected such arguments and have done so for some time. The only cases to the contrary involve markets which are not for practical tools. Indeed I think the difference between Midway and Galoob is precisely this difference. Galoob's game genie was deemed to be a practical tool that allowed a user to engage in behavior considered to be fair use, while the software at issue in Midway was deemed to create a new entertainment work. Best Wishes, Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chris Travers (ch...@metatrontech.com): > For example, suppose I start selling a binary-only table engine for > MySQL which offers real benefits over Innodb. Let's say less bloat, > less maintenance, faster performance, and no issues with thread > deadlocks when multi-row inserts are done. Suppose this is > dynamically linked and I ship with an installer that detects installed > MySQL versions and installs against this. The installer asks for a > license key which is used to determine how many client access licenses > you have purchased. I sell CAL's for $50/client. As always, it depends on the various facts of the case and how well argued, if the matter were taken to court. Again, the judge determines whether there has been copying of copyright-eligible expressive elements into a new work. I see from taking a brief look at the recent judge's order in the Google/Oracle case dismissing a bunch of claims that he said those claims were based on literal copying of non-eligible expressive elements that might be patentable but not copyrightable (idea/expression dichotomy). > After all, *all* have done is use an API owned by Oracle (my money > would also be that they'd sue me to try to win anyway, see Google v. > Oracle). Whether that is _all_ that you have done would depend on the various facts of the case and how well argued, if the matter were taken to court. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 12:39 PM, Rick Moen wrote: > > Anyway, as I just got through saying to Ben Tilly: (1) People > can and do perform pretty much whatever screwball actions they wish to > perform with their own property. (2) You should take care to understand > all of the implications of any licence you use, because somebody else > definitely may, and you'll look really silly acting surprised. Sure. But these are not always clear. For example, suppose I start selling a binary-only table engine for MySQL which offers real benefits over Innodb. Let's say less bloat, less maintenance, faster performance, and no issues with thread deadlocks when multi-row inserts are done. Suppose this is dynamically linked and I ship with an installer that detects installed MySQL versions and installs against this. The installer asks for a license key which is used to determine how many client access licenses you have purchased. I sell CAL's for $50/client. Suppose furthermore that I only ship this in to customers in the US so we can limit this discussion to US copyright law. Do I even need Oracle's permission to release my project? My money would be on "no" and so the GPL really would have no implication. After all, *all* have done is use an API owned by Oracle (my money would also be that they'd sue me to try to win anyway, see Google v. Oracle). Allowed? Not allowed? Only talking about what the *law* requires in this case. There may be other ways of pressuring certain behaviors other than court. But only talking about US law here. European law may be different. But I think that the current case law and statute strongly suggests that this would be allowed without any copyright license from Oracle at least in the US. I think that Oracle would lose as a matter of law and that you can't use copyright to restrict linking as a technical matter. Static linking would be arguably different *only* because one is distributing a compiled work containing a component of someone else's and therefore a copyright license would be required (providing a module which is statically linked only during install would not pose this problem though). But if Lexmark v. Static Control settled anything it's that you can't use copyright to control secondary markets for practical goods. Best Wishes, Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Ben Tilly (bti...@gmail.com): > Seeing these repeated references to my name is getting annoying. This seems a little odd. All I said was that I'd recently made that observation to you -- which was factually correct and certainly not any offence to you or anyone else. > You like to take people to task who have assumed that you take one > position or another which you don't. > Please stop assuming that you enlightened me Something I neither said nor implied. > stop associating me with a position that I do not hold. Nor this. > Many people who choose permissive licenses have a view that says that > when you don't try to order people around with contracts, goodwill > tends to get repaid down the road. I not only know this, but have written a number of essays pointing that out. > [...] But in the eyes of the person who originally released > the software, you have failed to be generous back to them, and you > have created a barrier to future generosity from people down the road > who use the improved version. (Proprietary software creates less of a > barrier because there is a single entity that may come to see > generosity as being in their enlightened self-interest.) > > Again I am not describing this to say that I hold this view, or that > you should agree with it. Quite the contrary. I am merely offering > it for anyone who wants to understand what may be going through the > head of a person who gets upset about something like this. I'm quite familiar with the viewpoint (and permissive-license significant amounts of my own work for various reasons), but thank you. > If a license does what I want 90% of the time quite well, and fails > 10% of the time, is it better or worse than a license that does > something you find merely OK 100% of the time? Mu. The premise is defective. If the licence doesn't grant the rights you wish granted, then it is defective 100% of the time. Failing to grant the rights you wish to grant might be evidenced by, e.g., 10% of the recipients behaving in ways you intended to disallow, but your chosen terms allowed this, and yet you are surprised. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 7:57 AM, Chad Perrin wrote: > These are generally exceptional cases that require either copyright > assignment or carefully controlled maintenance of contribution records > and continued contact with contributors. In cases where contributions to > the downstream copyleft project are accepted from all comers (within > reason) without a lot of bookkeeping -- as is the case with many open > source projects -- the ability to contribute substantial code from the > downstream copyleft project to the upstream copyfree project starts > evaporating, not only because it may be difficult to get people to > consent to their code being contributed to a copyfree licensed project > when they intended it for a copyleft project, but also because the > project maintainers may not have any easy way to identify and contact all > the contributors with affected contributions in the first place. > > In many cases, it may even be difficult to track contributions > themselves, regardless of the contributors. > > Meanwhile, in proprietary downstream projects, there is a single > copyright holder, almost by definition. This entire problem of trying to > figure out whether you have the legal "right" to contribute to upstream > pretty much doesn't exist. I think this is an important point. When we look at a project like PostgreSQL for example, you have proprietary vendors like Green Plum and EnterpriseDB who contribute a *lot* of code back to the common project. This is pretty typical with BSD-licensed projects as a whole. Once you start having a GPL'd off-shoot then you have problems getting the same level of contribution back to the BSD-licensed original. This is an important concern and it's something a lot of people just kind of glide over but as someone who has worked with projects under both licenses I will say clearly that it's easier to get a proprietary project to make contributions back to a BSD-licensed project than it is to get a GPL'd project to do the same. True there are always cases where a vendor starts with a BSD codebase and runs their own direction with it without contirbuting back. In the PostgreSQL world, I guess the primary examples that come to mind are Informix and Vertica. However these are usually only successful when either the approach is so different that code sharing is not helpful or the project is sufficiently immature to make it helpful to just run one's own direction. In general though the cost to the developer is that they bear the fll cost of integrating new features from the BSD version, and almost always this creates a heavy incentive to contribute back. Best Wishes, Chris Travers > > >> >> Permissive licensing implies right to create derivatives under licences >> you don't like and reuse in ways you don't approve of, because that's >> somebody else's property (derivative of yours, but needing to satisfy >> only your minimal conditions), and some guy actually read your licence, >> correctly understood its permissive nature, and acted accordingly. > > Ben Tilly appeared to be addressing more than this simple legal status of > copyfree licenses and other "permissive" licenses. > > -- > Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ] > ___ > License-discuss mailing list > License-discuss@opensource.org > http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu):
> Kindly don't tell me what I've read over the years.
I'm more than done with this.
Not very surprisingly, attempting to post a serious answer to your
rhetorical question ('What was the value of this observation?') was
simply a waste of time, and has merely elicited a bunch more.
Sorry you didn't like my commnt. Have a great day.
And, since you assume bad faith on my part (and for amazingly dumb reasons),
don't expect more of my time.
___
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 6/11/12 6:31 PM, "Rick Moen" wrote: >The language about a 'fixed pool of open source developers' is >revealing: One notes the assumption of entitlement to mindshare. >Perhaps the easiest solution would be to regard copyleft as a >subcategory of proprietary development. Then it'd suddenly become OK >again. One final nitpick. I was discouraged that I would pick the term "fixed pool". Fortunately, I did not and wrote "finite pool". While the number of geeks is small and the number of geeks that contribute to open source smaller it does grow from time to time. :) There is no assumption regarding the entitlement to mindshare but the reality that folks have only so much bandwidth to be involved in projects and everyone would be happier all around if enhancements can make it upstream. Chad has been better at articulating my views than me so I leave him to it. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 03:20:12PM -0700, Rick Moen wrote: > Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): > > > Again, whatever your self identification is, your comment and statement > > are those espoused by one of those camps over the years. > > No, they most certainly are not. Kindly do not confuse me with some > bunch of ideologue wankers. > > > What was the value of this observation? > > That differently licenced derivatives in compliance with your > requirements are seen as OK if proprietary and hence shut off from > sharing under the same terms, but not OK if copyleft and hence shut off > from sharing under the same terms -- which seems to me a prime example of > failing to grasp _either_ of the two basic facts about copyright law and > software I mentioned to Ben Tilly: (1) People can and do perform pretty > much whatever screwball actions they wish to perform with their own > property. (2) You should take care to understand all of the > implications of any licence you use, because somebody else definitely > may, and you'll look really silly acting surprised. I sent another email to this extended branching thread discussing the issue of bookkeeping and the problems of perfect consensus as a requirement for allowing many (fairly typical, I think) public copyleft projects to contribute code back to upstream projects using different licenses, as contrasted with the relatively simple case of a business decision to contribute code from a proprietary project with a single copyright holder back to an upstream project. This, I think, very clearly bears on the disagreement to which you allude. While I think Nigel Tzeng may have done an imperfect job of describing this concern to you, I don't think I have failed to clarify that this seems to be part of his argument. Despite this, you have yet to acknowledge that such an imbalance in the potential for upstream contribution in the proprietary versus copyleft cases in this discussion when you make comments like the above. In short, ironically perhaps, it seems that the legal complexities involved favor more contribution to copyfree projects from downstream proprietary projects than from downstream copyleft projects, even ignoring the obvious disdain many copyleft partisans have for copyfree licensing (in some cases going so far as to call it "evil" and denigrate its proponents as tools, shills, enablers, or worse, for the behavior of economic predators, and other such cockamamie nonsense). In case you're tempted to take this amiss, I'm not saying you're one of these copyleft partisans. I'm just pointing out that even ignoring the behavior of people who wish to punish people who choose copyfree licensing policy for failing to see the Light and join the copyleft Cause (possibly rare, but noisy extremists), the simple fact of the legal complexities of a public open source project and the tangle of copyrights involved can ensure far greater counter-incentives for upstream contribution in copyleft projects than in proprietary projects. > > Permitting any derivatives satisfying 2-clause, 3-clause, or 4-clause > obligations means permitting _any_ derivatives satisfying 2-clause, > 3-clause, or 4-clause obligations. If licensor didn't intend that, > then licensor shouldn't have chosen the licence. I think that people who complain in the case of copyleft appropriations generally do so not simply because of appropriations equivalent to those of proprietary projects, even taking the difference in likelihood of upstream contributions outlined above and elsewhere, but because such appropriations without upstream contribution tend to come in parallel with copyleft partisans (sometimes not the same people, but the perception of individual hypocrisy is difficult to shake, people being waht they are) scolding those who choose copyfree licenses for enabling corporate sociopaths (or whatever disparagement comes up) in their desires to conquer or destroy the world. Consider: 1. In Magical Fantasyland, where people are at least nice when taking advantage of each other, Plagiarism, Inc. forks a copyfree licensed project as a proprietary product and does not contribute improvements upstream. The Busybody Project forks the same copyfree licensed project as a copyleft project and does not contribute improvements upstream. Both of them say "Thanks for giving us a leg up, guys! It's great we were able to make a good start this way." The copyfree project maintainers shake their heads ruefully and think "Well, I'm glad people like it, and maybe this means that our open file formats and protocols will get wider use, thus increasing the utility of our software." 2. In the Republic of Realworld, Plagiarism, Inc. forks a copyfree license project as a proprietary product and does not contribute improvements upstream. The Busybody Project forks the same copyfree licensed project as a copyleft project and does not contribute improvements upstream. Plagiarism, I
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 3:20 PM, Rick Moen wrote: > Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): > >> Again, whatever your self identification is, your comment and statement >> are those espoused by one of those camps over the years. > > No, they most certainly are not. Kindly do not confuse me with some > bunch of ideologue wankers. > >> What was the value of this observation? > > That differently licenced derivatives in compliance with your > requirements are seen as OK if proprietary and hence shut off from > sharing under the same terms, but not OK if copyleft and hence shut off > from sharing under the same terms -- which seems to me a prime example of > failing to grasp _either_ of the two basic facts about copyright law and > software I mentioned to Ben Tilly: (1) People can and do perform pretty > much whatever screwball actions they wish to perform with their own > property. (2) You should take care to understand all of the > implications of any licence you use, because somebody else definitely > may, and you'll look really silly acting surprised. Seeing these repeated references to my name is getting annoying. You made a comment about some BSD people. I offered an explanation of one mindset that leads to that situation. You came back with an argument that the mindset is wrong. Since I don't possess that mindset, and I have no interest in an argument, I didn't bother to respond. You like to take people to task who have assumed that you take one position or another which you don't. Please stop assuming that you enlightened me when you did not, and stop associating me with a position that I do not hold. > Permitting any derivatives satisfying 2-clause, 3-clause, or 4-clause > obligations means permitting _any_ derivatives satisfying 2-clause, > 3-clause, or 4-clause obligations. If licensor didn't intend that, > then licensor shouldn't have chosen the licence. People decide that particular licenses are right for themselves for all sorts of reasons. Often those reasons turn out to be mistaken, and then people tend to get upset. Many people who choose permissive licenses have a view that says that when you don't try to order people around with contracts, goodwill tends to get repaid down the road. That is, in addition to the explicit legal contract, they act as if there was an implicit social contract between them in the world; if they are generous then enough people will be generous back that things tend to work out. Most of the time this belief works. (That is why people continue to have beliefs like this.) Occasionally they are spectacularly wrong. That is, rather than trying to minimize harm when things go wrong, they try to maximize the benefit of things going right. If this is your goal, complicated legalese is unlikely to be appealing. Unhappiness can then arise when people who have released under a permissive license hoping to see reciprocal generosity down the road see their work improved and the improvements offered under a copyleft license. Legally nothing wrong has happened. Socially nothing wrong has been done in the world view of the person who made the improvements. But in the eyes of the person who originally released the software, you have failed to be generous back to them, and you have created a barrier to future generosity from people down the road who use the improved version. (Proprietary software creates less of a barrier because there is a single entity that may come to see generosity as being in their enlightened self-interest.) Again I am not describing this to say that I hold this view, or that you should agree with it. Quite the contrary. I am merely offering it for anyone who wants to understand what may be going through the head of a person who gets upset about something like this. > _Unlike_ ideologue wankers, I have no wish to urge any particular > licensing on anyone, and regard with particular distaste those who do. > (In the general case, it involves someone else's property and is not > really my concern at all.) As I very clearly stated upthread, I regard > licences as legal instruments to implement the licensor's intentions. > The intentions should logically dictate owner's licensing strategy: the > only real tragedy is when people fail to understand their chosen > licensing's natural and obvious consequences. If a license does what I want 90% of the time quite well, and fails 10% of the time, is it better or worse than a license that does something you find merely OK 100% of the time? You'll have no end of examples in that failing 10%, but on the whole there are some people who will still prefer that license, even though it can and does go wrong quite frequently. Again, not my point of view. But if someone has that point of view, it may make sense for them to select a license that does not protect them from situations that they would prefer not to see happen. Even though you may think it a tragedy that things keep on happe
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 03:31:56PM -0700, Rick Moen wrote: > Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): > > On 6/11/12 3:54 PM, "Chad Perrin" wrote: > > > > > >Rather, I think the complaint is about people making hypocritical > > >statements about exactly the kind of behavior they exhibit with regard to > > >source code appropriation > > Oddly enough, in the two _actual_ cases of code appropriation anyone > eventually coughed up (ath5k and g4l), I was among the few people who > actively told the malefactors in no uncertain terms, in public, that > they had greatly erred and needed to cease their copyright violation. > > The public Freshmeat.net comments in the g4l case were particularly > striking, and I wish I could still point to them, but VA Research^W^W > VA Linux Systems^W^W^W SourceForge, Inc.^W^W GeekNet, Inc. seem to have > flushed all comments away in a site redesign. I don't know why you feel you have to defend your pedigree as someone opposed to such source code appropriation behavior (legal or otherwise) in response to what I said. I never in any way suggested you condoned such behavior. > > > > > >, and about people pretending there is no difference between two > > >different edge cases of license effects when, in fact, there is a > > >difference. > > The language about a 'fixed pool of open source developers' is > revealing: One notes the assumption of entitlement to mindshare. No, I don't think it does. I think it's *inaccurate* to say there's a "fixed pool of open source developers", but it is accurate to say it is scarce to some meaningful degree, and based on that it is reasonable for someone to show concern about whether someone else's hypocritical combination of behavior and rhetoric serves to create a one-way barrier to the benefits of such development efforts going to an upstream project while simultaneously attacking a separate group for creating one-way barriers to the benefits of developer effort. > > Perhaps the easiest solution would be to regard copyleft as a > subcategory of proprietary development. Then it'd suddenly become OK > again. In some respects, it *is* a subcategory of proprietary development, in that the conditions of copyleft licensing explicitly rely on copyright law and the ability to place conditions on redistribution, while copyfree licensing's target conditions are substantially similar to the case of a world without copyright (and thus without proprietary software) within the limited scope of the license's reach. I don't know if that's the cure-all for this recurrently contentious subject matter you seem to suggest (correct me if I misunderstood your meaning, please), though. -- Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ] ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 6/11/12 6:20 PM, "Rick Moen" wrote: >Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): > >> Again, whatever your self identification is, your comment and statement >> are those espoused by one of those camps over the years. > >No, they most certainly are not. Kindly do not confuse me with some >bunch of ideologue wankers. Kindly don't tell me what I've read over the years. >> What was the value of this observation? > >That differently licenced derivatives in compliance with your >requirements are seen as OK if proprietary and hence shut off from >sharing under the same terms, but not OK if copyleft and hence shut off >from sharing under the same terms -- which seems to me a prime example of >failing to grasp _either_ of the two basic facts about copyright law and >software I mentioned to Ben Tilly: (1) People can and do perform pretty >much whatever screwball actions they wish to perform with their own >property. (2) You should take care to understand all of the >implications of any licence you use, because somebody else definitely >may, and you'll look really silly acting surprised. What makes you think folks were surprised vs disappointed? Why does their being disappointed about it make them look silly? I think that everyone involved understood fully what was happening and why. Folks choose permissive licenses because they want the widest possible reuse. The hope would have been folks that also believe in open source would reciprocate. I suppose hoping that might have been a little silly. There was no misunderstanding of the legality or the terms of the license. It is odd that you would characterize this in as negative a way as possible. They weren't silly, nor did they fail to grasp anything "basic". The gist of the BSD position has always been "Of course that's legal, it's just not very nice." No license can compel people to be nice. If they have to be compelled they wouldn't be nice, just compliant. >_Unlike_ ideologue wankers, I have no wish to urge any particular >licensing on anyone, and regard with particular distaste those who do. I don't know why you keep restating this. I never said that you did and wholeheartedly agree with you. Most reasonable folks are license agnostic and view licenses as tools. >Sorry you didn't like it. Have a nice day. > >> Yes, disingenuous. > >I have no time for someone who gratuitously accuses me of bad faith -- >and also no interest in arguing with you in the first place. Kindly >go bother somebody else. Thanks. Tough. GPL is and always has been the license involved in these disputes. Claiming that there are other copyleft licenses is simply evading that point. Therefore disingenuous. I note that you didn't actually provide another copyleft license example nor dispute my assertion regarding the history... /shrug Your original comment struck me as a dismissive and mischaracterization of others point of view. Something that you continued in this response. Sorry you didn't like it. Have a nice day. Well, no, not really...but I will stop bugging you about it now that the point is made. I hope that you grasp it. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): > On 6/11/12 3:54 PM, "Chad Perrin" wrote: > > >Rather, I think the complaint is about people making hypocritical > >statements about exactly the kind of behavior they exhibit with regard to > >source code appropriation Oddly enough, in the two _actual_ cases of code appropriation anyone eventually coughed up (ath5k and g4l), I was among the few people who actively told the malefactors in no uncertain terms, in public, that they had greatly erred and needed to cease their copyright violation. The public Freshmeat.net comments in the g4l case were particularly striking, and I wish I could still point to them, but VA Research^W^W VA Linux Systems^W^W^W SourceForge, Inc.^W^W GeekNet, Inc. seem to have flushed all comments away in a site redesign. > >, and about people pretending there is no difference between two > >different edge cases of license effects when, in fact, there is a > >difference. The language about a 'fixed pool of open source developers' is revealing: One notes the assumption of entitlement to mindshare. Perhaps the easiest solution would be to regard copyleft as a subcategory of proprietary development. Then it'd suddenly become OK again. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 6/11/12 3:54 PM, "Chad Perrin" wrote: >Rather, I think the complaint is about people making hypocritical >statements about exactly the kind of behavior they exhibit with regard to >source code appropriation, and about people pretending there is no >difference between two different edge cases of license effects when, in >fact, there is a difference. This may be getting buried under the >language of disapproval. Well, if folks don't get this after a good decade and a half I doubt restating this point again will sway any opinions...even if I did just that on Friday. Best to let sleeping dogs lie...which includes not making snarky comments like Rick did regarding "BSD regulars" on this list. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): > Again, whatever your self identification is, your comment and statement > are those espoused by one of those camps over the years. No, they most certainly are not. Kindly do not confuse me with some bunch of ideologue wankers. > What was the value of this observation? That differently licenced derivatives in compliance with your requirements are seen as OK if proprietary and hence shut off from sharing under the same terms, but not OK if copyleft and hence shut off from sharing under the same terms -- which seems to me a prime example of failing to grasp _either_ of the two basic facts about copyright law and software I mentioned to Ben Tilly: (1) People can and do perform pretty much whatever screwball actions they wish to perform with their own property. (2) You should take care to understand all of the implications of any licence you use, because somebody else definitely may, and you'll look really silly acting surprised. Permitting any derivatives satisfying 2-clause, 3-clause, or 4-clause obligations means permitting _any_ derivatives satisfying 2-clause, 3-clause, or 4-clause obligations. If licensor didn't intend that, then licensor shouldn't have chosen the licence. _Unlike_ ideologue wankers, I have no wish to urge any particular licensing on anyone, and regard with particular distaste those who do. (In the general case, it involves someone else's property and is not really my concern at all.) As I very clearly stated upthread, I regard licences as legal instruments to implement the licensor's intentions. The intentions should logically dictate owner's licensing strategy: the only real tragedy is when people fail to understand their chosen licensing's natural and obvious consequences. I do feel no obligation to prove to you the 'value of this observation'. It suffices to me that it is correct to the best of my ability to determine, and relevant to the subject. Sorry you didn't like it. Have a nice day. > Yes, disingenuous. I have no time for someone who gratuitously accuses me of bad faith -- and also no interest in arguing with you in the first place. Kindly go bother somebody else. Thanks. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 6/11/12 3:39 PM, "Rick Moen" wrote: >Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu): > >> >I am not, and never have been, in any sense a 'GPL proponent', sir. >> >> This conflict has always been between certain factions of the GPL camp >>and >> certain factions of the BSD camp whatever you wish to identify yourself >>as. > >I am not a member of any 'GPL camp', either. Thank-you-very-much. > >If you are having a difficult time addressing this subject without >attempting to cram other participants into ritualised ideological >positions, it's possible you should not discuss software licensing. >Or software. Again, whatever your self identification is, your comment and statement are those espoused by one of those camps over the years. Something that you are well aware of. Lets get back to the crux: "A certain number of the BSD regulars remain deeply unhappy when those works state copyleft requirements, even though they're perfectly happy when derivatives of the same BSD works have proprietary licenses. Go figure." What was the value of this observation? What don't you understand, after all these years, about why some "BSD regulars" remain "deeply unhappy" regarding a copyleft vs being "happy" with a proprietary derivative? I'm finding it humorous that you don't like the idea of putting you in a "camp" when your original statement refers to "BSD regulars". Friday I was annoyed. Today it's simply funny. >> >> This comment is disingenuous. > >Disingenous? I point out you've just ignored the upthread context and >yanked the thread over to 'GPL' and you say I'm being dishonest? That's >a good bit of cheek. Yes, disingenuous. That I state GPL is because historically that's been the license with which there has been conflict. If I am incorrect, perhaps you can cite for me which other copyleft license that "BSD regulars" have been unhappy with? There was no "upthread context" relevant to your observation about "BSD regulars". ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 12:39:06PM -0700, Rick Moen wrote: > > Anyway, as I just got through saying to Ben Tilly: (1) People > can and do perform pretty much whatever screwball actions they wish to > perform with their own property. (2) You should take care to understand > all of the implications of any licence you use, because somebody else > definitely may, and you'll look really silly acting surprised. > > When people start talking about the 'finite pool of open source > developers' on account of the unfortunate-for-the-speaker fact that some > of those developers choose to do something the speaker dislikes (but > that is lawful), I gently direct the speaker's attention to point #1. > I.e., get used to the idea that that 'finite pool' are not your staff > and are unlikely to do your bidding, unless perhaps you intend to hire > them. I'm not particularly interested in the way the two of you are dancing around the subject of who's on what side of which ring (boxing or circus, whatever), but I figure it might be worth pointing out that I'm pretty sure nobody's claiming these hypothetical open source developers are anyone's staff, or complaining directly about them doing something legal. Rather, I think the complaint is about people making hypocritical statements about exactly the kind of behavior they exhibit with regard to source code appropriation, and about people pretending there is no difference between two different edge cases of license effects when, in fact, there is a difference. This may be getting buried under the language of disapproval. -- Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ] ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu):
> >I am not, and never have been, in any sense a 'GPL proponent', sir.
>
> This conflict has always been between certain factions of the GPL camp and
> certain factions of the BSD camp whatever you wish to identify yourself as.
I am not a member of any 'GPL camp', either. Thank-you-very-much.
If you are having a difficult time addressing this subject without
attempting to cram other participants into ritualised ideological
positions, it's possible you should not discuss software licensing.
Or software.
> >Here's something interesting: I talk about copyleft, and about the
> >alleged '{relicensing|sublicensing}' of BSD works actually just turning
> >out to refer to creation of derivative works, and someone who wants to
> >argue with me starts talking about the GPL, as if there were no other
> >copyleft licences. This is peculiar at the bset of times, but doubly so
> >on the OSI's mailing lists.
>
> This comment is disingenuous.
Disingenous? I point out you've just ignored the upthread context and
yanked the thread over to 'GPL' and you say I'm being dishonest? That's
a good bit of cheek.
> Which other copyleft license is both strongly copyleft and have over
> zealous proponents?
Who cares about the 'proponents'? That has nothing to do with the
antecedent topic.
Listen, you seem to want to have an ideological disputation with
someone. I'm neither interested nor suitable for that purpose. Have a
great day.
> The point is that there is a finite pool of open source developers that do
> this for fun on their own time.
Anyway, as I just got through saying to Ben Tilly: (1) People
can and do perform pretty much whatever screwball actions they wish to
perform with their own property. (2) You should take care to understand
all of the implications of any licence you use, because somebody else
definitely may, and you'll look really silly acting surprised.
When people start talking about the 'finite pool of open source
developers' on account of the unfortunate-for-the-speaker fact that some
of those developers choose to do something the speaker dislikes (but
that is lawful), I gently direct the speaker's attention to point #1.
I.e., get used to the idea that that 'finite pool' are not your staff
and are unlikely to do your bidding, unless perhaps you intend to hire
them.
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 6/8/12 12:16 PM, "Rick Moen" wrote:
>Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu):
>
>> It amazes me that after all these years GPL proponents are still
>> professing willful ignorance as to why some permissive developers see a
>> difference between the two practices. Go figure.
>
>I am not, and never have been, in any sense a 'GPL proponent', sir.
This conflict has always been between certain factions of the GPL camp and
certain factions of the BSD camp whatever you wish to identify yourself as.
>> Perhaps because a proprietary derivative doesn't impact the potential
>>pool
>> of open source contributors but a GPL derivative does?
>
>Here's something interesting: I talk about copyleft, and about the
>alleged '{relicensing|sublicensing}' of BSD works actually just turning
>out to refer to creation of derivative works, and someone who wants to
>argue with me starts talking about the GPL, as if there were no other
>copyleft licences. This is peculiar at the bset of times, but doubly so
>on the OSI's mailing lists.
This comment is disingenuous. Which other copyleft license is both
strongly copyleft and have over zealous proponents? Weak copylefts tend
not to have the same issues or frankly, personalities.
Moreover, this has nothing to do about licenses but the comment you made.
>Anyway, a proprietary derivative permits _zero_ open source contributors,
>right? Or did I somehow fail to understand what 'proprietary' means?
False. There have been numerous contributions to permissive projects from
proprietary derivatives and companies that provide contributors to
permissive projects. But that's not the point.
The point is that there is a finite pool of open source developers that do
this for fun on their own time. A proprietary derivative does not draw
upon this pool except occasionally when they hire someone full time.
Another open source fork does. And it's a double whammy. Not only might
some devs work on the fork but that code often never is usable by the
original. This is a point made many times over the years, something you
should be well aware of.
>> Perhaps it is human nature to be annoyed when some very vocal folks
>>claim
>> to be more "free" and that you should respect the spirit of their
>>license
>> but not actually reciprocate that "freedom" with permissive developers
>>or
>> the same level of respect?
>
>_Stallman_ does that, but you seem to be confusing the merits of
>licences with those of their authors. The meaning of each licence itself
>is confined to its wording and its surrounding legal environment. By
>contrast, interpersonal soap opera doesn't mean a thing.
I'm not confusing anything. I have nothing against the GPL or copyleft in
general. It simply annoyed me that you brought up that idiotic meme once
again. In this case it has nothing to do with Stallman and everything to
do with your own comment.
I provided this as another well worn example of why some BSD proponents
mind when a GPL project uses their code but not when a proprietary product
uses their code. You weren't commenting on the merit of licenses but the
merits of the opinions of other developers regarding the use of their code
in GPL projects.
That leads to nothing BUT interpersonal soap opera.
>> Nah, that's only been stated umpteen times over the many years among
>> various other reasons.
>
>Yes, and I'm a BSD user from back to long before Net/2. Now that you've
>trotted out your prejudices irrelevantly, it'd be nice, as I just got
>through saying, if a few folks stopped assuming I'm new to these topics.
I didn't assume that. Frankly you should know better than to bring that
old nugget back up again as if you didn't understand why some folks feel
that way. For the same reason that BSD proponents largely gave up
childishly calling GPL the GNU Public Virus long ago. All this was gone
over a decade or two ago and made for a bunch of unnecessary bad blood
between the two camps.
So really, what was the point of you bringing it up yet again? Because
you thought you could get a snarky jab in there and no one would call you
on it?
Any other Friday that probably would have been true but as I stated, I was
in a bad mood.
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 6/8/12 2:15 PM, "Bruce Perens" wrote: >On 06/08/2012 08:55 AM, Tzeng, Nigel H. wrote: >> It amazes me that after all these years GPL proponents [...] >Not a positive contribution. In what matter was Rick's original comment a positive contribution? >There are simple economic justifications for using a sharing-with-rules >license or a gift-style license. One determines the desired result, and >then one or the other is obviously appropriate. Which has little or nothing to do with my point or the disagreement. smime.p7s Description: S/MIME cryptographic signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Gervase Markham wrote: I'd add that, given that the MPL 2 is used by both Mozilla and LibreOffice, two very substantial projects, I'd say it pretty much fits the criteria on its own merits even without support from the large body of MPL 1.1+ software out there. I fully agree with the general opinion here that MPL 2 is an important and widely-used license. I meant no disrespect to that or any other licenses when complaining about the list of "popular" licenses on the OSI website. However, what are the "criteria" to which you refer so that we can judge other licenses by the same criteria? /Larry -Original Message- From: Gervase Markham [mailto:gerv-gm...@gerv.net] Sent: Monday, June 11, 2012 8:06 AM To: license-discuss@opensource.org Subject: Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages On 05/06/12 17:59, Mike Milinkovich wrote: > I don't think that the inclusion of MPL 2.0 in any way a bad decision. > My assumption is that the Steward of the MPL requested that all > significant references to the the MPL be modified to point to the new > version. Similarly, the original list included both the CPL and the EPL. > When the CPL was deprecated in favour of the EPL, the CPL was deleted > from the list. I'd add that, given that the MPL 2 is used by both Mozilla and LibreOffice, two very substantial projects, I'd say it pretty much fits the criteria on its own merits even without support from the large body of MPL 1.1+ software out there. Gerv ___ License-discuss mailing list <mailto:License-discuss@opensource.org> License-discuss@opensource.org <http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss> http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 05/06/12 17:59, Mike Milinkovich wrote: > I don't think that the inclusion of MPL 2.0 in any way a bad decision. > My assumption is that the Steward of the MPL requested that all > significant references to the the MPL be modified to point to the new > version. Similarly, the original list included both the CPL and the EPL. > When the CPL was deprecated in favour of the EPL, the CPL was deleted > from the list. I'd add that, given that the MPL 2 is used by both Mozilla and LibreOffice, two very substantial projects, I'd say it pretty much fits the criteria on its own merits even without support from the large body of MPL 1.1+ software out there. Gerv ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Fri, Jun 08, 2012 at 08:18:16PM -0700, Rick Moen wrote: > Quoting Ben Tilly (bti...@gmail.com): > > [...] > > However if someone downstream re-releases under a copyleft license, > > there is essentially no chance of changes downstream of that ever > > being re-released under a permissive license that can be reintegrated > > back into the original project. > > To be deliberately flip, the big difference is: > > A derivative instance released under a copyleft licence cannot be > reintegrated into the original permissive-licensed product. > > versus: > > A derivative instance released under a proprietary licence cannot be > reintegrated into the original permissive-licensed product. (Because > it's -- hey! -- proprietary. > > But wait, you say, you're missing the point! There's a non-zero > positive chance the derivative under a proprietary licence will > eventually be contributed back under the permissive one. Could happen. > Whereas, derivatives initially released under a copyleft licence are > basically never made available under a permissive one. (Except, oh, > many driver codebases of which that's the case, including aic7xxx SCSI > if memory serves.) These are generally exceptional cases that require either copyright assignment or carefully controlled maintenance of contribution records and continued contact with contributors. In cases where contributions to the downstream copyleft project are accepted from all comers (within reason) without a lot of bookkeeping -- as is the case with many open source projects -- the ability to contribute substantial code from the downstream copyleft project to the upstream copyfree project starts evaporating, not only because it may be difficult to get people to consent to their code being contributed to a copyfree licensed project when they intended it for a copyleft project, but also because the project maintainers may not have any easy way to identify and contact all the contributors with affected contributions in the first place. In many cases, it may even be difficult to track contributions themselves, regardless of the contributors. Meanwhile, in proprietary downstream projects, there is a single copyright holder, almost by definition. This entire problem of trying to figure out whether you have the legal "right" to contribute to upstream pretty much doesn't exist. > > Permissive licensing implies right to create derivatives under licences > you don't like and reuse in ways you don't approve of, because that's > somebody else's property (derivative of yours, but needing to satisfy > only your minimal conditions), and some guy actually read your licence, > correctly understood its permissive nature, and acted accordingly. Ben Tilly appeared to be addressing more than this simple legal status of copyfree licenses and other "permissive" licenses. -- Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ] ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Bruce Perens (br...@perens.com): > It's regarding your statement: > >it doesn't seem likely to cast light on other areas of copyright >law. In particular, it cases none on what suffices to create a new >work and what is a derivative work. > > The point is that there's not /anything else/ in that body of law > that would make the proposed work derivative. No, indeed. I adressed the Google/Oracle case beause _you_ suddenly threw it into the conversation. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 06/11/2012 12:52 AM, Rick Moen wrote:
{scratches head} I think you must somehow be massively misreading what
I said. Perhaps you thought I'd expressed a view about using an API
(somehow) creating a derivative work? I didn't say anything of the sort.
It's regarding your statement:
it doesn't seem likely to cast light on other areas of copyright
law. In particular, it cases none on what suffices to create a new
work and what is a derivative work.
The point is that there's not /anything else/ in that body of law that
would make the proposed work derivative.
<>
smime.p7s
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 12:43 AM, Bruce Perens wrote: > What legal theory would make a user of an API a derivative work if the API > is not itself copyrightable? > > If there was a case like MySQL v. Nusphere without the contract, this is what I'd argue. Note I'd avoid saying "derivative" like the plague. I'd point out (assuming the following is true for sake of argument): There's ample documentation that the licensor intended this license not to reach compiled or collected works linking this software to proprietary components, and that extra licenses were required at that point. There's ample evidence the licensee was aware of all this. I'd then argue that whether or not it's a derivative work is not at issue. What is at issue is whether the licensor intended the license to allow the behavior in question and whether the licensee knew or should have known this. By distributing the code, they need copyright permission. That's not in dispute. Therefore, the behavior is outside the GPL and at least contract violation if not copyright violation. This may not be a derivative work but it's not really permitted by the GPL. Compiled/collected works require permission to and some of these are "based on" in the view of the GPL even if they are not "based on" in the way that term is used in copyright statutes. I don't know if that's a winning argument (assuming the ample documentation is there). But if I wanted to argue it, that's the case I'd make. Best Wishes, Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Bruce Perens (br...@perens.com):
> What legal theory would make a user of an API a derivative work if
> the API is not itself copyrightable?
{scratches head}
I think you must somehow be massively misreading what I said. Perhaps
you thought I'd expressed a view about using an API (somehow) creating a
derivative work? I didn't say anything of the sort.
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 10:37 AM, Bruce Perens wrote: > On 06/11/2012 12:18 AM, Henrik Ingo wrote: >> >> To be clear, NuSphere did not embed MySQL in their product, rather they >> embedded closed source components into MySQL > > Per Eben's testimony, the Gemini storage engine, using the MySQL API for > storage engines. True, so still relevant for this thread. I just wanted to make a difference of X embedding MySQL (the common case) vs embedding Gemini into MySQL (there are less than 20 companies in the MySQL space for whom this is relevant). henrik -- henrik.i...@avoinelama.fi +358-40-8211286 skype: henrik.ingo irc: hingo www.openlife.cc My LinkedIn profile: http://www.linkedin.com/profile/view?id=9522559 ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
What legal theory would make a user of an API a derivative work if the API is not itself copyrightable? On 06/11/2012 12:37 AM, Rick Moen wrote: I belive I heard that his holding is that Google wrote or commissioned independent code implementations of all 37, leaving only the question of whether the designs and names of the functions in the reference API packages are covered by copyright. He said they weren't -- which does not strike me as very surprising, given the uncopyrightabilty of names and the idea/expression dichotomy (patent/copyright division). Other than giving clarification that claiming an API is inherently copyrightable isn't going to fly, it doesn't seem likely to cast light on other areas of copyright law. In particular, it cases none on what suffices to create a new work and what is a derivative work. <> smime.p7s Description: S/MIME Cryptographic Signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 06/11/2012 12:18 AM, Henrik Ingo wrote: To be clear, NuSphere did not embed MySQL in their product, rather they embedded closed source components into MySQL Per Eben's testimony, the Gemini storage engine, using the MySQL API for storage engines. Which would be a funny relevation after a couple decades of successful GPL enforcements and several companies building a successful business on a more strict interpretation of GPL / the law. I'm not going to advise people that they can mix GPL and proprietary software with impunity. And I will continue my own dual-licensing business. But I'm not going to be certain of my ability to prevail in court. <> smime.p7s Description: S/MIME Cryptographic Signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Bruce Perens (br...@perens.com): > On 06/10/2012 10:49 PM, Rick Moen wrote: > >I believe this is entirely consistent with what I said, Bruce. You > >even said 'Read caselaw.' > > I think we need to come to grips to the fact that it may be possible > for GPL software to be embedded within a proprietary software > product a la NuSphere without the result being infringement. As I said, it was the particulars of the NuSphere case that made it pretty clearly copyright infringement. Defendent seems to have agreed, judging from the hasty settlement on plaintiff's terms. Essentially, it comes down to creation of a new work. The judge would consider evidence and arguments presented about the nature of reuse, decide whether a new derivative work was created, and, if so, whether it incorporated substantials expressive elements of the reused work, then to what degree various affirmative defences apply, etc. I look forward to reading the the Google/Oracle judge's order dismissing claims that Google violated copyright on 37 Java API packages, having not yet had time to do so. I belive I heard that his holding is that Google wrote or commissioned independent code implementations of all 37, leaving only the question of whether the designs and names of the functions in the reference API packages are covered by copyright. He said they weren't -- which does not strike me as very surprising, given the uncopyrightabilty of names and the idea/expression dichotomy (patent/copyright division). Other than giving clarification that claiming an API is inherently copyrightable isn't going to fly, it doesn't seem likely to cast light on other areas of copyright law. In particular, it cases none on what suffices to create a new work and what is a derivative work. > If you go back to Progress Software (NuSphere) v. MySQL, the MySQL > guys signed a contract with Progress without ever having it vetted > by a lawyer. NuSphere had a reasonable assumption that they had a > right to embed the program in their product. The MySQL guys messed > up in a big way and were lucky to not have had to pay for it. Naturally, one _can_ contract away the right to enforce copyright. But, if that is the deciding factor, then you can no longer learn much of anything from the copyright aspects of the case. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 11, 2012 at 9:41 AM, Bruce Perens wrote: > On 06/10/2012 10:49 PM, Rick Moen wrote: >> >> I believe this is entirely consistent with what I said, Bruce. You even >> said 'Read caselaw.' > > > I think we need to come to grips to the fact that it may be possible for GPL > software to be embedded within a proprietary software product a la NuSphere > without the result being infringement. At least as long as they provide > source and a license statement for the GPL part. > > If you go back to Progress Software (NuSphere) v. MySQL, the MySQL guys > signed a contract with Progress without ever having it vetted by a lawyer. > NuSphere had a reasonable assumption that they had a right to embed the > program in their product. The MySQL guys messed up in a big way and were > lucky to not have had to pay for it. To be clear, NuSphere did not embed MySQL in their product, rather they embedded closed source components into MySQL and shipped a modified MySQL without corresponding source. http://www.gnu.org/press/mysql-affidavit.html (MySQL specific part begins at §26) This is not comparable to the customary use of MySQL where some Java or PHP application uses MySQL as is, and over an API like JDBC to store data. It is true that MySQL AB used to interpret the GPL as covering also this use case. When buying Sun, Oracle has denounced this interpretation and was supported by Eben Moglen and Carlo Piana in doing so. (http://openlife.cc/blogs/2011/january/reposting-mark-schonewilles-blog-how-gpl-applies-mysql-use-cases ) Anyway, the NuSphere case was not an example of this use case. All that said, yes, if one takes the "Using an API doesn't create derivative works" to its extreme, then essentially the GPL and LGPL would be the same thing. Which would be a funny relevation after a couple decades of successful GPL enforcements and several companies building a successful business on a more strict interpretation of GPL / the law. henrik -- henrik.i...@avoinelama.fi +358-40-8211286 skype: henrik.ingo irc: hingo www.openlife.cc My LinkedIn profile: http://www.linkedin.com/profile/view?id=9522559 ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 06/10/2012 10:49 PM, Rick Moen wrote: I believe this is entirely consistent with what I said, Bruce. You even said 'Read caselaw.' I think we need to come to grips to the fact that it may be possible for GPL software to be embedded within a proprietary software product a la NuSphere without the result being infringement. At least as long as they provide source and a license statement for the GPL part. If you go back to Progress Software (NuSphere) v. MySQL, the MySQL guys signed a contract with Progress without ever having it vetted by a lawyer. NuSphere had a reasonable assumption that they had a right to embed the program in their product. The MySQL guys messed up in a big way and were lucky to not have had to pay for it. Thanks Bruce <> smime.p7s Description: S/MIME Cryptographic Signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Bruce Perens (br...@perens.com): > I'm glad Rick's done. There is a good chance that you, not Rick, are > right. Recent case law is that APIs are bright lines between > separate works and that connections across APIs do not create > derivative works. And this is regardless of the way software is > linked. Go read the recent finding in Oracle v. Google, it only > reinforces that point. I believe this is entirely consistent with what I said, Bruce. You even said 'Read caselaw.' ;-> ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 06/09/2012 01:53 AM, Rick Moen wrote: Read caselaw. I'm done. I'm glad Rick's done. There is a good chance that you, not Rick, are right. Recent case law is that APIs are bright lines between separate works and that connections across APIs do not create derivative works. And this is regardless of the way software is linked. Go read the recent finding in Oracle v. Google, it only reinforces that point. <> smime.p7s Description: S/MIME Cryptographic Signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Thu, Jun 07, 2012 at 03:09:47PM -0700, Luis Villa wrote: > On Thu, Jun 7, 2012 at 3:04 PM, John Cowan wrote: > > Chad Perrin scripsit: > > > >> Is "have been approved through the [OSI's] license review process" really > >> a requirement for being an "open source license", or is that just a > >> requirement for being *certified* as an "open source license" by the OSI? > > > > Clearly the latter. The text should be adjusted accordingly, as there are > > several reasons why a license might be Open Source but not OSI-approved: > > > > 1) It has not been submitted for certification in proper form. > > > > 2) The Board considers it a vanity license. > > > > 3) The Board believes that it substantially duplicates an existing license. > > > >> It seems that there is a distinction to be made between "OSI-approved" > >> and merely "open source", where "open source" would *by definition* > >> (tautologically, it seems) be any license that conforms to the definition > >> of open source. > > > > Exactly. > > I've got a partial draft response to Chad drafted, but John covers > most of it - the general point is definitely well-taken. I'm about to > leave on vacation, so am a bit crunched for time- if someone would > propose an alternate wording, I'd appreciate it. I've been without email for about two and a half days, which accounts for the delay in my response. I just wanted to thank you both for your replies, clarifying the intent of the passage I quoted. I think the sentence in question can be best "fixed" by breaking it into two sentences, one each about what qualifies as an open source license and what the OSI review process does. While the following can surely stand some improvement, it may give a sense of what I mean as an example of how the edited form might be structured: Open Source licenses are licenses that comply with the Open Source Definition. The Open Source Initiative's review process is used to approve licenses for certification by the Open Source Initiative, as examples of licenses that conform to the Open Source Definition that should be regarded as well-established within the Open Source community. I hope that helps get the ball rolling on a revision. -- Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ] ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chris Travers (ch...@metatrontech.com): > Not exclusively. I cited cases (Lexmark, Sony, etc) where expressive > elements were included without permission but this was held to be de > minimis (Lexmark) or fair use (Sony, Galoob), or allowed on other > grounds. Yes, affirmative defences and all that. Now, if you're entirely done with typical computerist extreme mania over edge cases and exceptions > Hence my initial point of copyright only applying to the extent that > the function and expressive elements are separable Look, we know all that. However, that's irrelevant to the alleged NuSphere 'case' that was hastily settled out of culpable embarrassment. If you cannot see the obvious literal reproduction of copyright-eligible expressive elements in the published work, I cannot help you. Either way, I see no point in pursuing the matter further. > So if you see the Gemini Engine as a piece of software interoperating > with MySQL through a defined API, then static linking seems to my mind > to be creating a compiled work, not a derivative one. Dream on. > I don't think that works. Read caselaw. I'm done. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Just one point in support of Rick's assertion here. My points as I stated I think clearly, are under the assumption that a court would look at the GPL v2 and try to map it directly to compiled/collected works (license allows without regard to license of other components) and derivative works (requires to be under the same license). Beyond the uncertainties I have suggested there's a second way I could see a court looking at it (again IANAL but I have listened to a lot of oral argument and read a lot of case law). I could see a court saying "the near-unanimous view of the GPL v2 as expressed by the licensor here is that a work that links to this work is based on it for purposes of this license. Therefore it doesn't matter whether or not it meets the definition of derivative work or not. The licensee knew this was the intention of the license and therefore we intend to enforce it as such." So I think you have questions as to how the GPL v2 would/should be interpreted and, depending on that, questions of where the line is between a compiled and a derivative work. I don't think either of these are as clear as the "you need a license if you link" crowd would like to think though. Best Wishes, Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Fri, Jun 8, 2012 at 11:01 PM, Rick Moen wrote: > Quoting Chris Travers (ch...@metatrontech.com): > >> Nowhere in these do I see any indication that mere inclusion of one >> work in another creates derivation. > > You will not find a simple acid test there or anywhere else. And yet, > in my experience, if you read those cases, you will get the pattern of > the way judges rule. It's a matter of whether copyrighted expressive > elements were incorporated into a new work without permission. Not exclusively. I cited cases (Lexmark, Sony, etc) where expressive elements were included without permission but this was held to be de minimis (Lexmark) or fair use (Sony, Galoob), or allowed on other grounds. Those cases are interesting because it is undisputed that literal copying occurred. Hence my initial point of copyright only applying to the extent that the function and expressive elements are separable (in these cases, I would argue, they were not. You couldn't achieve the functions without copying the expressions, so it was allowed). These courts went about things in different ways but the pattern appears to be that copyright is not a legitimate tool for restricting interoperability of software. > > You are not going to find sharp lines about what constitutes creation of > a new work, versus what is a collection. However, as I said, you will > get the pattern and be able to predict fairly well how other cases are > likely to turn out. Evidently we read the tea leaves differently. I suppose it is true that two observers will always connect the dots differently. I see the following patterns regarding proprietary software: 1) Where one party is copying another party's copyrighted works to their direct financial detriment the court is far more likely to side against the one doing the copying. 2) Where the copying party however, is doing so for interoperability purposes, or functional purposes of interoperability that do not create new audiovisual works, and do not directly implicate the other party's sales, these are far more likely to be allowed either via fair use (Sony v. Connectix) or de minimis exceptions (Lexmark). This, as in Lexmark, is a straightforward application of 17 USC 102(b) which states that copyright cannot be used to own an idea, method, practical process, etc. (The exact words are "(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. ") >From that I would suggest that the chance of a court holding that the necessity of linking to system libraries gives an OS vendor copyright control over all software running on that platform is very low, and the chance of that being upheld on appeal is effectively zero. Indeed I would argue that 17 USC 102(b) effectively prevents using copyright alone as a barrier to functional software interoperability. This seems to me a straight-forward application of Sony and Lexmark as well. Moreover I think this is what concerned the court in Oracle v. Google. So if you see the Gemini Engine as a piece of software interoperating with MySQL through a defined API, then static linking seems to my mind to be creating a compiled work, not a derivative one. If, however, we argue that the only functional unit that makes sense is the server binary as a while, then maybe it is derivative (however in that case, surely dynamic linking would cure that). I just don't think it is settled or clear cut. > > No. > > NuSphere's product was obviously derivative of MySQL because of the > incorporation of copyrighted expressive elements into a new work without > permission. The technological details are trivia. I don't think that works. If it did, every compiled work would be legally a derivative of all components, and I don't think you accept that either. If it was, then the work as a whole provision would mandate that Fedora Linux is violating RMS's copyrights by including OpenSSL on the same CD as the Readline library, which doesn't work. If it did the mere aggregation clause of the GPL v2 and equivalents in the GPL v3 would be meaningless. Best Wishes, Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chris Travers (ch...@metatrontech.com): > Nowhere in these do I see any indication that mere inclusion of one > work in another creates derivation. You will not find a simple acid test there or anywhere else. And yet, in my experience, if you read those cases, you will get the pattern of the way judges rule. It's a matter of whether copyrighted expressive elements were incorporated into a new work without permission. You are not going to find sharp lines about what constitutes creation of a new work, versus what is a collection. However, as I said, you will get the pattern and be able to predict fairly well how other cases are likely to turn out. > But literal copying isn't what makes a derivative work a derivative > work. The AFC test gets you to the question of what's protected and > whether the overall work falls under copyright law generally. In a backward sense, yes. That is, the abstraction-filtration-comparison conceptual test is _based_ on more fundamental concepts of what is a copyrightable element vs. not, and of what a 'derivative work' is and is not -- but is certainly not the source of either of those key concepts. And, the point you seem to be shrugging off, that test simply has no application to the NuSphere 'case' that could theoretically have existed if NuSphere hadn't come to the immediate rational conclusion that they'd committed a tort and ought to settle. > ... the question is limited to whether that is different just because > we are talking about a single binary. No. NuSphere's product was obviously derivative of MySQL because of the incorporation of copyrighted expressive elements into a new work without permission. The technological details are trivia. I'm not going to get suckered into one of those unspeakable bullshit computerist discussions about the purported effect of different sorts of linking, or of particular classes of files and not others, on whether derivative works exist or not. That's not the way copyright law works and not the way judges think. If you don't agree, read caselaw and make up your own mind. If you wish to debate the matter, kindly find someone with more time and interest. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Fri, Jun 8, 2012 at 7:46 PM, Rick Moen wrote: >> True, which is why I have sought out law review articles and case law. >> I would think that a case like MySQL v. Nusphere if it came up today >> would still be a case of first impression, would it not? I haven't >> yet found a case directly on point (the closest maybe being Gates >> Rubber). Maybe you have found a closer one. > > Micro Star v. FormGen, CAI v. Intel, Gates Rubber. (Don't be a painfully > literal-minded computerist and insist you can learn the key concepts of > derivative works only from software cases, please.) > I just think computer games are problematic here. The reason is that computer games are far more heavily protected than utilitarian software. This leads to issues in computer games that don't occur in utilitarian software. My reason for excluding them is that I think they appear deceptively similar. For example Micro Star v. FormGen makes more sense when looked at as a multimedia case than as a software case. CAI v. Altia (is that the case you meant?) is mostly like Gates Rubber in this regard. Nowhere in these do I see any indication that mere inclusion of one work in another creates derivation. Indeed if it did, it would be hard to imagine any case where a collected work or a compiled work was not derivative of its members. > >> Copyright in US law protects expressive elements to the extent that >> they are separable from functional elements. You can't use copyright >> to protect pure function. [...] > > Quite. You know, I _have_ studied the subject. As have I which may be why the discussion is at least somewhat interesting. But I find it helps to start at the beginning. > >> The main US case of this sort that doesn't involve video games >> (excluding video games because they are protected both as software and >> as audio-visual works so that is not a clear parallel) is Gates Rubber >> v. Bando (http://digital-law-online.info/cases/28PQ2D1503.htm) where >> the 10th Circuit applied an abstraction/filtration/comparison test to >> determine whether one piece of software was derived from another, >> concluded the district court got things wrong and sent it back to >> district court. > > The 'abstraction-filtration-comparison' three part test developed in CAI > v. Intel and further elaborated in Gates Rubber is relevant to > _non-literal_ copying of copyright-eligible elements. NuSphere's case > is rather more brazen, and adjudication wouldn't require that conceptual > test at all. It would not even be relevant: But literal copying isn't what makes a derivative work a derivative work. The AFC test gets you to the question of what's protected and whether the overall work falls under copyright law generally. It doesn't tell you entirely what category of protected work it then falls under. I assume we agree that Ubuntu Linux is not a derivative work of bash, or X.org, or any of the other pieces that they include. It's properly a compiled work including these, not derivative of these pieces. If we agree there, then we have to agree that the ISO of Ubuntu is also not a derivative work of these pieces either. Copyright permission is required under US law to distribute the pieces, but only essentially anthology rights, not the right to produce derivative works. Assuming we agree here so far, great. We now know that it is possible for one work to include another without being derivative of that work and the question is limited to whether that is different just because we are talking about a single binary. In the cases like Micro Star, the issue is that by installing these new levels, you get a new audio-visual work and it transforms the original expressive multi-media into something new. Note this would be the case regardless of the technical details of implementation. I would go further however and suggest that the key factors here, as they would be in any other multi-media case. But this isn't a case where you have functionality considerations. It's merely a case of protecting artistic expression. If you are looking to literal copying, I would suggest that even there, the functional/artistic boundary gets a lot more attention than is clear. For example in cases where literal copying is required to achieve interoperability, every case I can find allowed the copying to go forward. See Sony v. Connectix, Lexmark v. Static Control, Oracle v. Google (the judge noted that the API definition lines had to be reproduced exactly, so that's copying of literal elements). In general I would suggest that where it comes to interoperability generally, courts seem to be unwilling to enforce copyright. So in this view, if Nusphere distributed the Gemini engine compiled against MySQL's own header files, and with instructions for the end user to link it, this might be permitted even in the absence of copyright license. It doesn't raise the artistic issues present in Midway or Micro Star. Distributing the library stat
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Ben Tilly (bti...@gmail.com): [...] > However if someone downstream re-releases under a copyleft license, > there is essentially no chance of changes downstream of that ever > being re-released under a permissive license that can be reintegrated > back into the original project. To be deliberately flip, the big difference is: A derivative instance released under a copyleft licence cannot be reintegrated into the original permissive-licensed product. versus: A derivative instance released under a proprietary licence cannot be reintegrated into the original permissive-licensed product. (Because it's -- hey! -- proprietary. But wait, you say, you're missing the point! There's a non-zero positive chance the derivative under a proprietary licence will eventually be contributed back under the permissive one. Could happen. Whereas, derivatives initially released under a copyleft licence are basically never made available under a permissive one. (Except, oh, many driver codebases of which that's the case, including aic7xxx SCSI if memory serves.) Anyway, in dealing with copyright law and software, it's well to reconcile one's self early on to a pair of background facts: (1) People can and do perform pretty much whatever screwball actions they wish to perform with their own property. (2) You should take care to understand all of the implications of any licence you use, because somebody else definitely may, and you'll look really silly acting surprised. Permissive licensing implies right to create derivatives under licences you don't like and reuse in ways you don't approve of, because that's somebody else's property (derivative of yours, but needing to satisfy only your minimal conditions), and some guy actually read your licence, correctly understood its permissive nature, and acted accordingly. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chris Travers (ch...@metatrontech.com): > I don't think so. When we look at the case where this was raised as a > controversy (a wireless driver in Linux taken from, iirc OpenBSD), the > allegation was actually that no derivative work was created. The code > was just included wholesale and the license changed. Intended reference is to ath5k, I think? The truly serious and unforgivable fsck-up was that Reyk Floeter's author credit and copyright & licence notice were omitted. I was among the many who flogged whoever it was -- maybe Nick Kossifidis? -- for doing that. Not including Reyk Floeter's copyright notice was just flippin' rude among other things. But no, you are incorrect. When the Madwifi Project released their version as 'OpenHAL', it was substantially patched and also, as you might imagine, rearchitected to fit into the Madwifi driver framework. _After_ that epic screw-up was straightened out -- Floeter's author credit and copyright & licence notice competently included -- he no longer had any reasonable complaint (let alone a cause of action). However, frankly, I wish he had gone for a copyright-infringement lawsuit over the initial misdeeds that had already occurred before that point, just to teach the Madwifi idiots to be more polite and competent. > True, which is why I have sought out law review articles and case law. > I would think that a case like MySQL v. Nusphere if it came up today > would still be a case of first impression, would it not? I haven't > yet found a case directly on point (the closest maybe being Gates > Rubber). Maybe you have found a closer one. Micro Star v. FormGen, CAI v. Intel, Gates Rubber. (Don't be a painfully literal-minded computerist and insist you can learn the key concepts of derivative works only from software cases, please.) > Copyright in US law protects expressive elements to the extent that > they are separable from functional elements. You can't use copyright > to protect pure function. [...] Quite. You know, I _have_ studied the subject. > The main US case of this sort that doesn't involve video games > (excluding video games because they are protected both as software and > as audio-visual works so that is not a clear parallel) is Gates Rubber > v. Bando (http://digital-law-online.info/cases/28PQ2D1503.htm) where > the 10th Circuit applied an abstraction/filtration/comparison test to > determine whether one piece of software was derived from another, > concluded the district court got things wrong and sent it back to > district court. The 'abstraction-filtration-comparison' three part test developed in CAI v. Intel and further elaborated in Gates Rubber is relevant to _non-literal_ copying of copyright-eligible elements. NuSphere's case is rather more brazen, and adjudication wouldn't require that conceptual test at all. It would not even be relevant: NuSphere (obviously) did literal copying of the entirety of the MySQL engine into the body of its product, expressive elements and all. You deny that that creates a derivative work of MySQL? Good luck with that. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Fri, Jun 8, 2012 at 12:49 AM, Rick Moen wrote:
> Quoting Chris Travers (ch...@metatrontech.com):
>
>> Maybe I misunderstood what Larry Rosen was saying about the
>> differences in the BSD and MIT licenses in his book then ;-).
>
> Oh, there is.
>
> The alleged '{relicensing|sublicensing} of BSD code', however,
> inevitably turns out in the real world to be a somewhat melodramatic
> mischaracterisation of a derivative work. Thus my point.
I don't think so. When we look at the case where this was raised as a
controversy (a wireless driver in Linux taken from, iirc OpenBSD), the
allegation was actually that no derivative work was created. The code
was just included wholesale and the license changed. The argument was
"you changed the license on this file of code and you didn't even
modify the code." That's not really a derivative works argument as
far as I know.
>
>> The Nusphere case is more interesting when we stop thinking about
>> software and look at copyright as protecting what might be thought of
>> as "software as literature" or "software as expression."
> Who cares what GPL (either v2 or v3) 'means'? The boundaries of
> the legal concepts of 'aggregated work' and 'derivative works' are
> determined by judges based on guidelines from caselaw, not by anything
> written by Prof. Moglen.
>
> If you're trying to learn copyright law by reading copyleft licences,
> you're wasting your time, in my experience. Try relevant caselaw.
True, which is why I have sought out law review articles and case law.
I would think that a case like MySQL v. Nusphere if it came up today
would still be a case of first impression, would it not? I haven't
yet found a case directly on point (the closest maybe being Gates
Rubber). Maybe you have found a closer one.
>
>
>> Whether the Geminii table engine would be a derivative work of MySQL
>> is a question that I don't think the jurisprudence is clear on (IANAL
>> again).
>
> You _seriously_ think compiling a work directly into a second one in a
> functionally integral manner doesn't create a derivative work? Well,
> I'll just quote Damon Runyon (riffing off Ecclesiastes 9:11): 'The race
> is not to the swift, nor the battle to the strong..., but that's the way
> to bet.' ;->
Yes I do. Here is why:
Copyright in US law protects expressive elements to the extent that
they are separable from functional elements. You can't use copyright
to protect pure function. Example. If you publish a cookbook, and I
take 10 recipes from your cookbook and include it in my cookbook
(edited to conform to my style), you are going to have a hard time
arguing that this is copyright violation even if I put them in a
section saying "excerpted from Rick Moen's cookbook" (if I copy all or
nearly all of them you might be able to argue selection and ordering
are sufficiently expressive to make this a copyright violation issue).
Now, if instead, if your recipes are written in heroic hexameters and
I copy them, then I am copying your poetry and they are no longer
merely functional recipes. Now I am in trouble.
Derivative works are an area that's originally meant to deal with
things from literature including sequels (a book based on another
book), movies based on books, etc. Fan fiction is a classic example
of of a genre of derivative works. Applied to software it gets funky.
The main US case of this sort that doesn't involve video games
(excluding video games because they are protected both as software and
as audio-visual works so that is not a clear parallel) is Gates Rubber
v. Bando (http://digital-law-online.info/cases/28PQ2D1503.htm) where
the 10th Circuit applied an abstraction/filtration/comparison test to
determine whether one piece of software was derived from another,
concluded the district court got things wrong and sent it back to
district court. I believe other circuits have generally followed the
10th Circuit on this but I am not certain.
As to including one work in another, collected and compiled works are
closer to the mark if that's the only consideration. Suppose, for
example, that I create an anthology of the scholarship relating to,
say, element formation in stars. To make this anthology useful I add
footnotes cross-referencing the various papers with a link to a page
number so the reader can easily JMP from one section to another and I
add a nice bookmark ribbon so when JMPing to reference, it's easy to
return again, I don't think Fred Hoyle's estate can come and sue me on
the basis that "we gave you rights to create a compiled or collected
work and you've created a derivative work by adding these footnotes."
So I don't know what would differentiate two binaries on an ISO from
two libraries in a binary.
I think that if you could show that there was continuity of expression
between MySQL's work and Nusphere's work beyond mere use of the API's
then that would clearly satisfy Gates and related cases and it would
be a derivative work. I will however say I ha
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Bruce Perens (br...@perens.com): > On 06/08/2012 08:55 AM, Tzeng, Nigel H. wrote: > >It amazes me that after all these years GPL proponents [...] > Not a positive contribution. Factually mistaken premise, too. > There are simple economic justifications for using a > sharing-with-rules license or a gift-style license. One determines > the desired result, and then one or the other is obviously > appropriate. This of course includes various scenarios using a copyleft code instance as a means for building a proprietary software business (the easist examples involving dual-licensing, but there are others). ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Chris Travers scripsit: > Not necessarily. I don't see why one can't license some rights > exclusively to one party and other rights exclusively to another > party. That's true. Most recent discussion uses the term "transfer of copyright", which may apply to some rights only. The point is that once transferred, you can't get them back without the agreement of the transferree. -- John Cowan http://www.ccil.org/~cowan But no living man am I! You look upon a woman. Eowyn I am, Eomund's daughter. You stand between me and my lord and kin. Begone, if you be not deathless. For living or dark undead, I will smite you if you touch him. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Thu, Jun 7, 2012 at 8:33 PM, Rick Moen wrote:
> Quoting John Cowan (co...@mercury.ccil.org):
[...]
> My surmise is that the thing being referred to as '{sublicensing|relicensing}
> of BSD works' is in fact stating the licensing for a derivative.
>
> A certain number of the BSD regulars remain deeply unhappy when those
> works state copyleft requirements, even though they're perfectly happy
> when derivatives of the same BSD works have proprietary licenses. Go
> figure.
This makes sense to me.
It seems to me that many people who license code under permissive
licenses do so in the knowledge that there are pressures to push
changes upstream. If upstream is permissive, there is therefore a
chance of code being re-released under a permissive license later.
Which means that you might be able to pull those changes into a
proprietary project of your own that uses that code. Apache comes to
mind as an example of a project that in its early days benefitted from
proprietary changes that were later released under a permissive
license.
Sure, most proprietary changes won't be re-released. But if even a
fraction of them are, that is development effort that you got for
free. Many are happy for there to be free riders if they are
confident that a certain number of people won't be free riders.
However if someone downstream re-releases under a copyleft license,
there is essentially no chance of changes downstream of that ever
being re-released under a permissive license that can be reintegrated
back into the original project.
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 06/08/2012 08:55 AM, Tzeng, Nigel H. wrote: It amazes me that after all these years GPL proponents [...] Not a positive contribution. There are simple economic justifications for using a sharing-with-rules license or a gift-style license. One determines the desired result, and then one or the other is obviously appropriate. Thanks Bruce <> smime.p7s Description: S/MIME Cryptographic Signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu):
> It amazes me that after all these years GPL proponents are still
> professing willful ignorance as to why some permissive developers see a
> difference between the two practices. Go figure.
I am not, and never have been, in any sense a 'GPL proponent', sir.
I regard licences as legal instruments to implement the licensor's
intents. What their intents are, obviously, differ. It would therefore
be the height of folly to ideologically urge one particular family of
licences, let alone any particular licence, and I do my best not to be a
fool.
> Perhaps because a proprietary derivative doesn't impact the potential pool
> of open source contributors but a GPL derivative does?
Here's something interesting: I talk about copyleft, and about the
alleged '{relicensing|sublicensing}' of BSD works actually just turning
out to refer to creation of derivative works, and someone who wants to
argue with me starts talking about the GPL, as if there were no other
copyleft licences. This is peculiar at the bset of times, but doubly so
on the OSI's mailing lists.
Anyway, a proprietary derivative permits _zero_ open source contributors,
right? Or did I somehow fail to understand what 'proprietary' means?
> Perhaps it is human nature to be annoyed when some very vocal folks claim
> to be more "free" and that you should respect the spirit of their license
> but not actually reciprocate that "freedom" with permissive developers or
> the same level of respect?
_Stallman_ does that, but you seem to be confusing the merits of
licences with those of their authors. The meaning of each licence itself
is confined to its wording and its surrounding legal environment. By
contrast, interpersonal soap opera doesn't mean a thing.
> Nah, that's only been stated umpteen times over the many years among
> various other reasons.
Yes, and I'm a BSD user from back to long before Net/2. Now that you've
trotted out your prejudices irrelevantly, it'd be nice, as I just got
through saying, if a few folks stopped assuming I'm new to these topics.
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
It amazes me that after all these years GPL proponents are still professing willful ignorance as to why some permissive developers see a difference between the two practices. Go figure. Perhaps because a proprietary derivative doesn't impact the potential pool of open source contributors but a GPL derivative does? Perhaps it is human nature to be annoyed when some very vocal folks claim to be more "free" and that you should respect the spirit of their license but not actually reciprocate that "freedom" with permissive developers or the same level of respect? Respect like not once again implying that it's some great mystery as to why some folks do see a difference between the two scenarios. Nah, that's only been stated umpteen times over the many years among various other reasons. At this point BSD regulars usually just roll their eyes when the subject comes up again unless they are having a bad day and a subsequent low tolerance for inane commentary. On 6/7/12 11:33 PM, "Rick Moen" wrote: >A certain number of the BSD regulars remain deeply unhappy when those >works state copyleft requirements, even though they're perfectly happy >when derivatives of the same BSD works have proprietary licenses. Go >figure. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chris Travers (ch...@metatrontech.com):
> Maybe I misunderstood what Larry Rosen was saying about the
> differences in the BSD and MIT licenses in his book then ;-).
Oh, there is.
The alleged '{relicensing|sublicensing} of BSD code', however,
inevitably turns out in the real world to be a somewhat melodramatic
mischaracterisation of a derivative work. Thus my point.
> The Nusphere case is more interesting when we stop thinking about
> software and look at copyright as protecting what might be thought of
> as "software as literature" or "software as expression."
I think you picked a extremely poor example. NuSphere clearly created a
derivative work in violation of copyright, they ended that violation two
days before filing of litigation, the judge advised MySQL AB that he or
she doubted actual damages could be proved, and everything collapsed in
a flurry of press releases and then a quiet settlement. Not a lot to
learn, there.
> The GPL allows mere aggregation without license contagion but requires
> that works "based on" the original work carry the same license. If we
> assume that these tie directly to categories of US copyright works,
> then "based on" means derivative work (in the sense that a movie might
> be "based on" a book), while aggregation would appear to mean compiled
> or collected works (anthologies).
Who cares what GPL (either v2 or v3) 'means'? The boundaries of
the legal concepts of 'aggregated work' and 'derivative works' are
determined by judges based on guidelines from caselaw, not by anything
written by Prof. Moglen.
If you're trying to learn copyright law by reading copyleft licences,
you're wasting your time, in my experience. Try relevant caselaw.
> Whether the Geminii table engine would be a derivative work of MySQL
> is a question that I don't think the jurisprudence is clear on (IANAL
> again).
You _seriously_ think compiling a work directly into a second one in a
functionally integral manner doesn't create a derivative work? Well,
I'll just quote Damon Runyon (riffing off Ecclesiastes 9:11): 'The race
is not to the swift, nor the battle to the strong..., but that's the way
to bet.' ;->
> But the point here is that both of these are cases where reasonable
> minds can disagree. Rick looks at the BSD license and says "well, it
> seems to allow me to license this to others under more restrictive
> terms if I keep the old copyright notices and license text in tact."
No, not 'licence this'. Create a derivative work whose licence
satisifies the requirements of the BSD licences as to the borrowed
copyrighted elements.
Any derivative of a BSD-licensed work that fails to satisfy the
BSD-licensed elements' 2, 3, or 4 licence requirements (depending on
which BSD licence was specified) violates the stakeholder's copyright
and creates a cause of tort action.
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chuck Swiger (ch...@codefab.com): > What is a matter of concern is when someone removes a copyright statement > and the BSD license terms from source code Obviously both abhorrent and illegal, irrespective of anything that follows. > I'm thinking of the g4u vs g4l situation. You may or may not be aware that I was, at the time, probably _the_ most emphatic voice telling the g4l guy in public he was simply in the wrong. I'm guessing 'not'. (By the way, it'd be nice if people wouldn't keep assuming I were somehow new to these topics.) ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Thu, Jun 7, 2012 at 10:52 PM, John Cowan wrote: > Chris Travers scripsit: > >> I am not 100% sure but I think after the changes in 2010, exclusive >> licensees are now assumed to have sublicense rights as well. > > An exclusive license is really a transfer of copyright ownership, and the > entire bundle of rights (including the right to say what the license is) > goes with it. Existing licensees may be protected by promissory estoppel, > but merely potentional licensees are not. Not necessarily. I don't see why one can't license some rights exclusively to one party and other rights exclusively to another party. > >> If I give a book publisher the right to sublicense my book, I would >> assume at a minimum they could tell a magazine they could serialize >> it, for example, and on what terms. Presumably they could license an >> excerpt to be published in an anthology and set terms (within certain >> limits dependent on the contract with the publisher) for that >> publication. Maybe they could even negotiate movie rights. > > Indeed. It used to be usual for the author to transfer all rights > (making the publisher an exclusive licensee) and nail down profit-sharing > in the contract, but nowadays publishers usually buy just enough rights > for their immediate needs: for example, magazine publishers usually want > "first serial rights". > >> A program linking to another >> program is not "based on" that other program in that sense regardless >> of the mechanism of linking any more than an anthology is based on the >> pieces published therein. > > The question is whether the linked program is a derivative work of its > parts or merely a collective work. Larry says "collective", the FSF says > "derivative". Infinite are the arguments of mages. > But that's my point really. This is an area where some people disagree in good faith and hence it's an area which is more likely to end up in court I don't know what this says about how robust a license is though. Best Wishes, Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Chris Travers scripsit: > I am not 100% sure but I think after the changes in 2010, exclusive > licensees are now assumed to have sublicense rights as well. An exclusive license is really a transfer of copyright ownership, and the entire bundle of rights (including the right to say what the license is) goes with it. Existing licensees may be protected by promissory estoppel, but merely potentional licensees are not. > If I give a book publisher the right to sublicense my book, I would > assume at a minimum they could tell a magazine they could serialize > it, for example, and on what terms. Presumably they could license an > excerpt to be published in an anthology and set terms (within certain > limits dependent on the contract with the publisher) for that > publication. Maybe they could even negotiate movie rights. Indeed. It used to be usual for the author to transfer all rights (making the publisher an exclusive licensee) and nail down profit-sharing in the contract, but nowadays publishers usually buy just enough rights for their immediate needs: for example, magazine publishers usually want "first serial rights". > A program linking to another > program is not "based on" that other program in that sense regardless > of the mechanism of linking any more than an anthology is based on the > pieces published therein. The question is whether the linked program is a derivative work of its parts or merely a collective work. Larry says "collective", the FSF says "derivative". Infinite are the arguments of mages. -- What is the sound of Perl? Is it not the John Cowan sound of a [Ww]all that people have stopped co...@ccil.org banging their head against? --Larryhttp://www.ccil.org/~cowan ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Jun 7, 2012, at 8:33 PM, Rick Moen wrote:
> My surmise is that the thing being referred to as '{sublicensing|relicensing}
> of BSD works' is in fact stating the licensing for a derivative.
Probably. My own opinion is that folks who do anything less than a substantial
rewrite of software ought to release their changes under the same license as
the original source.
However, permissive licenses were explicitly designed to permit closed-source
reuse; that's considered a feature by the authors who chose such licenses.
> A certain number of the BSD regulars remain deeply unhappy when those
> works state copyleft requirements, even though they're perfectly happy
> when derivatives of the same BSD works have proprietary licenses. Go
> figure.
I don't know anyone with a commit bit to a BSD-derived OS who is
"perfectly happy" when a proprietary system derives from BSD code, but
it's not considered unusual or a matter of concern.
What is a matter of concern is when someone removes a copyright statement
and the BSD license terms from source code, and replaces that with the GPL.
Of course, it would be exactly the same matter of concern if someone replaced
the copyright and BSD license terms with the MPL, CDDL, APSL, or any other
license.
I'm thinking of the g4u vs g4l situation. Although it no longer seems useful
for me to interact with NetBSD, I do agree with Andy Ruhl's take:
http://mail-index.netbsd.org/netbsd-advocacy/2004/09/17/0003.html
Regards,
--
-Chuck
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Thu, Jun 7, 2012 at 8:18 PM, John Cowan wrote:
> Rick Moen scripsit:
>
>> I keep hearing a limited group of people speaking of this alleged tort
>> ('purporting to sublicense'), but fail to find it in copyright law.
>
> Is there actually such a thing as copyright sublicensing? I suspect not.
> In which case "purporting to sublicense" an unchanged copy of a work
> is usurping the copyright owner's right to control the license, and
> likewise for a copy whose changes are de minimis. You can license your
> derivative work however you like, consistently with the original license,
> but that's not a sublicense: it is the license of the new work.
Maybe I misunderstood what Larry Rosen was saying about the
differences in the BSD and MIT licenses in his book then ;-). I
thought his discussion was pretty clear though. Also see Gardner v.
Nike, 9th Circuit 2002 (IANAL btw as I will repeatedly state below).
I am not 100% sure but I think after the changes in 2010, exclusive
licensees are now assumed to have sublicense rights as well. For
non-exclusive licensees (all open source licenses), that's a different
issue. Maybe a lawyer could correct me if I am wrong about the 2010
changes.
The thing that makes these issues hard is that protecting software
with copyright is a bit like pounding nails with an adjustable wrench.
The tool isn't really designed for that (copyright, at least in the
US, is designed to protect literature, not recipes in cookbooks) and
so it seems to me there are all sorts of gotchas.
If I give a book publisher the right to sublicense my book, I would
assume at a minimum they could tell a magazine they could serialize
it, for example, and on what terms. Presumably they could license an
excerpt to be published in an anthology and set terms (within certain
limits dependent on the contract with the publisher) for that
publication. Maybe they could even negotiate movie rights. My
understanding is that US law assumes that sublicensing is not allowed
unless specifically stated even in the case of an exclusive copyright
license. IANAL though.
The Nusphere case is more interesting when we stop thinking about
software and look at copyright as protecting what might be thought of
as "software as literature" or "software as expression." The GPL
allows mere aggregation without license contagion but requires that
works "based on" the original work carry the same license. If we
assume that these tie directly to categories of US copyright works,
then "based on" means derivative work (in the sense that a movie might
be "based on" a book), while aggregation would appear to mean compiled
or collected works (anthologies). A program linking to another
program is not "based on" that other program in that sense regardless
of the mechanism of linking any more than an anthology is based on the
pieces published therein. Whether the Geminii table engine would be a
derivative work of MySQL is a question that I don't think the
jurisprudence is clear on (IANAL again). In the most simplistic of
approaches, Nusphere would be safe. (It gets complicated because I
don't think API's and can be effectively copyrighted, and header files
are too heavily tied to APIs to get much protection in that way--- see
endless discusson on Groklaw during the SCO case on this issue, but at
the same time, if you can show continuity of expression that goes
beyond functional requirements, then you might have a case.)
But the point here is that both of these are cases where reasonable
minds can disagree. Rick looks at the BSD license and says "well, it
seems to allow me to license this to others under more restrictive
terms if I keep the old copyright notices and license text in tact."
Someone else might say "sublicensing is not mentioned. Therefore it's
not allowed." Again with MySQL v. Nusphere, there are questions where
reasonable people can disagree about the intersection of copyright law
and software regardless of how severe Nusphere's violations of social
norms are. These are the cases I see getting litigated. I just don't
see how any statistics there tell us anything useful about the
licenses.
Best Wishes,
Chris Travers
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting John Cowan (co...@mercury.ccil.org):
> Is there actually such a thing as copyright sublicensing? I suspect not.
> In which case "purporting to sublicense" an unchanged copy of a work
> is usurping the copyright owner's right to control the license, and
> likewise for a copy whose changes are de minimis. You can license your
> derivative work however you like, consistently with the original license,
> but that's not a sublicense: it is the license of the new work.
My surmise is that the thing being referred to as '{sublicensing|relicensing}
of BSD works' is in fact stating the licensing for a derivative.
A certain number of the BSD regulars remain deeply unhappy when those
works state copyleft requirements, even though they're perfectly happy
when derivatives of the same BSD works have proprietary licenses. Go
figure.
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Rick Moen scripsit:
> I keep hearing a limited group of people speaking of this alleged tort
> ('purporting to sublicense'), but fail to find it in copyright law.
Is there actually such a thing as copyright sublicensing? I suspect not.
In which case "purporting to sublicense" an unchanged copy of a work
is usurping the copyright owner's right to control the license, and
likewise for a copy whose changes are de minimis. You can license your
derivative work however you like, consistently with the original license,
but that's not a sublicense: it is the license of the new work.
> Reuse of 2-clause BSD code that satisfies its two requirements
> (retention of copyright notice in source code, reproduction of copyright
> notice and warranty disclaimer in documentation and other materials
> provided with binaries) complies with the licence.
Reuse, yes. Changing the license terms on a copy, no.
> [1] This dumb shibboleth about 'sublicensing BSD code' came up often
> enough that Ernie Prabhakar at OSI nicely FAQed it, back in 2008.
You'll note he agrees with me: only derivative works can have a different
license, though it's a messy fact-based question which modified copies
are derivative works and which are the original.
--
John Cowan co...@ccil.orghttp://ccil.org/~cowan
I come from under the hill, and under the hills and over the hills my paths
led. And through the air. I am he that walks unseen. I am the clue-finder,
the web-cutter, the stinging fly. I was chosen for the lucky number. --Bilbo
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chris Travers (ch...@metatrontech.com):
> Therefore, I think that lawsuits will more likely occur regarding the
> scope of requirements of the license than excusing one from the
> requirements directly
So, basically, 'Yes, this licence articulates the licensor's
requirements, and he/she has a right to insist on them, but what do they
mean?'
Sure, anyone with standing and a bank account to suck dry can litigate
that. Always. About anything.
> So for example, suppose an OpenBSD developer sues a Linux developer
> for copyvio due to purporting to sublicense BSD code under the GPL
> with only de minimis modifications.
I keep hearing a limited group of people speaking of this alleged tort
('purporting to sublicense'), but fail to find it in copyright law.
Reuse of 2-clause BSD code that satisfies its two requirements
(retention of copyright notice in source code, reproduction of copyright
notice and warranty disclaimer in documentation and other materials
provided with binaries) complies with the licence.
Your phrase 'purporting to sublicense BSD code under the GPL' is a bit
vague as to compliance or not, but the reuse scenario as I _think_ I
understand it does not appear to transgress either of the two
requirements.
I think people asking the question you ask, to be blunt, are a bit
unclear about what copyright law does and does not address. In short:
'Mu.'
Just because you don't like what someone else does, doen't
make it unlawful. FWIW, I think failing to very clearly state that
a reused upstream work is available under permissive licensing would be
extremely tacky at best, and ungrateful. However, come to think of it,
if the reuser creating and distributing a derivative work _does_ comply
with BSD clauses 1 and 2, aren't recipients fully enabled to seek out
the upstream instance and enjoy all permissive rights? Then, what's the
alleged issue, again, please?[1]
> Similarly if Nusphere had persevered and prevailed against MySQL,
> would we count that as unsuccessful enforcement of the GPL?
More like complete and total failure of some court to understand
copyright law, since NuSphere's theory of law was hopelessly dumb.
Let's see:
MySQL AB brought a copyright infringement action against NuSphere,
alleging that NuSpheres's proprietary products NuSphere MySQL Advantage
and NuSphere MySQL Pro Advantage based on NuSphere's database component
Gemini Storage Engine were unauthorised derivative works of MySQL AB's
copyrighted property MySQL (which was statically compiled into it),
because MySQL AB asserted that NuSphere had not provided matching source
code as required by MySQL's terms of use for derivatives. (There were a
bunch of other noisy causes of action I'll disregard, involving tortious
interference, trademark torts, tra la.)
NuSphere responded that (1) we released Gemini Storage Engine source
code the day before yesterday (I'm not kidding; they really said that),
and (2) we contend that NuSphere MySQL Advantage and NuSphere MySQL Pro
Advantage are aggregates of our code and MySQL's and are simply _not_
derivatives of MySQL AB's work, as that term is defined in copyright
law.
The parties settled on MySQL AB's terms a short while later, and so
NuSphere's novel and gutsy theory about the definition of 'derivative
work' never had a chance to make a judge laugh, but I'll just sum up to
say that I'll comment on what your hypothetical _is_ when and if it
happens.
[1] This dumb shibboleth about 'sublicensing BSD code' came up often
enough that Ernie Prabhakar at OSI nicely FAQed it, back in 2008.
http://ideas.opensource.org/wiki/help/license
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Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Thu, Jun 7, 2012 at 3:04 PM, John Cowan wrote: > Chad Perrin scripsit: > >> Is "have been approved through the [OSI's] license review process" really >> a requirement for being an "open source license", or is that just a >> requirement for being *certified* as an "open source license" by the OSI? > > Clearly the latter. The text should be adjusted accordingly, as there are > several reasons why a license might be Open Source but not OSI-approved: > > 1) It has not been submitted for certification in proper form. > > 2) The Board considers it a vanity license. > > 3) The Board believes that it substantially duplicates an existing license. > >> It seems that there is a distinction to be made between "OSI-approved" >> and merely "open source", where "open source" would *by definition* >> (tautologically, it seems) be any license that conforms to the definition >> of open source. > > Exactly. I've got a partial draft response to Chad drafted, but John covers most of it - the general point is definitely well-taken. I'm about to leave on vacation, so am a bit crunched for time- if someone would propose an alternate wording, I'd appreciate it. Luis ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Chad Perrin scripsit: > Is "have been approved through the [OSI's] license review process" really > a requirement for being an "open source license", or is that just a > requirement for being *certified* as an "open source license" by the OSI? Clearly the latter. The text should be adjusted accordingly, as there are several reasons why a license might be Open Source but not OSI-approved: 1) It has not been submitted for certification in proper form. 2) The Board considers it a vanity license. 3) The Board believes that it substantially duplicates an existing license. > It seems that there is a distinction to be made between "OSI-approved" > and merely "open source", where "open source" would *by definition* > (tautologically, it seems) be any license that conforms to the definition > of open source. Exactly. -- Mark Twain on Cecil Rhodes:John Cowan I admire him, I freely admit it, http://www.ccil.org/~cowan and when his time comes I shallco...@ccil.org buy a piece of the rope for a keepsake. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Just chiming in... I am also 1000% behind this. Looks like a great move forward. Karl Fogel writes: > I completely support this, and am very happy to have it supersede my > original proposed new page -- this way is better, both in the short term > and the long term. Thanks for the well-explained proposal, Luis. > > I especially like the second item under Miscellany, by the way :-). > That will make maintenance of the list much easier, and I think it is > something Infrastructure should look at after the Drupal upgrade. > > Terse only because in an airport waiting lounge, > -Karl > > Luis Villa writes: >>Following up on Karl's email of a few months ago, this is a >>deliberately low-key proposal from me and other board members to >>simplify and improve how the OSI-approved licenses are presented on >>the OSI website. As it currently stands, we don't have a page we can >>point a newcomer to to learn about what an open source license is, or >>what the most common licenses are. We'd like to solve that, at least >>in part, by making the current http://opensource.org/licenses/ more >>useful by highlighting the most common licenses and by providing a bit >>more context about what it means to be an open source license. >> >>Despite coming from me and other board members, the text and layout >>below are just a proposal, and are of course open to suggestions, >>improvements, and discussion. >> >>What This Is Not >> >> >>Karl's original proposal included suggestions of how to change and >>update which licenses belong in which categories. This email and >>proposed web site changes are definitely not addressing that issue. I >>feel (and I'm pretty sure others on the board feel) that those >>questions should be addressed, but because those are complex issues >>that will inevitably involve months of careful discussion and >>planning, and because we all agree that the current website layout is >>unsatisfactory, we'd like to not block this quicker, smaller >>discussion. >> >>The Proposal >>= >> >>1. Reorganize the left-side navigation. What is currently "Open Source >>Licenses," with sub-points "Licenses by Category", "Licenses by Name", >>"License Review Process," and "License Proliferation," would simply >>become "Open Source Licensing" (content of that page discussed below). >>"License Review Process" and "License Proliferation" would be moved to >>bullets under "The Open Source Definition," because those pages are >>primarily about OSI's process and standards rather than about specific >>licenses or about open source licenses more generally. >> >>By slightly hiding the "by category" and "by names" pages, we'd be >>funneling people (particularly newcomers) to a slightly more >>informative page (and one that can be improved over time), while not >>losing the master lists altogether for the times when those are >>needed. >> >>2. The "Open Source Licensing" page (replacing >>http://opensource.org/licenses/) would be fleshed out to say >>(hopefully all changes self-explanatory): >> >>Open Source licenses are licenses that comply with the Open Source >>Definition and have been approved through the Open Source Initiative's >>license review process. >> >>The following Open Source licenses are popular, widely used, or >>have strong communities: >> >>Apache License, 2.0 (Apache-2.0) >>BSD 3-Clause "New" or "Revised" license (BSD-3-Clause) >>BSD 3-Clause "Simplified" or "FreeBSD" license (BSD-2-Clause) >>GNU General Public License (GPL) >>GNU Library or "Lesser" General Public License (LGPL) >>MIT license (MIT) >>Mozilla Public License 2.0 (MPL-2.0) >>Common Development and Distribution License (CDDL-1.0) >>Eclipse Public License (EPL-1.0) >> >>A complete list of all Open Source Initiative-approved licenses, >>including those above, is available: >> >>sorted by name (alphabetical) >>sorted by category >> >>For more information about Open Source licenses and in particular >>about the Open Source Initiative's license review process, see: >> >>The Open Source Definition (annotated version) >>The OSI License Review Process >>Information on License Proliferation and the 2006 License >>Proliferation Report >> >>Miscellany >> >> >>* We'll of course clean up any dangling links caused by changed URLs >>and set up proper redirects before changing any URLs. (Not entirely >>clear it makes sense to change /licenses/ to /licensing/, which would >>be the primary URL change based on the previous suggestions). >> >>* In the longer term, once Drupal is upgraded, it will likely make >>sense to generate http://opensource.org/licenses/alphabetical and >>http://opensource.org/licenses/category programatically, rather than >>through the current manual listing, which is of course error-prone. >>(Some people have suggested doing away with the alphabetical list >>altogether, which I personally wo
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Wed, Jun 6, 2012 at 7:23 PM, Rick Moen wrote: > Quoting Chris Travers (ch...@metatrontech.com): > >> That assumes the goal is to invalidate a license's grant of rights. > > Shortly below what you quoted: > > There are of course other parties who might sue (other than a licensee), > and other matters that might be asserted. > > >> Far more likely, I would think, would be arguments over the scope of >> the requirements of the license. > > I can't think of requirements in any OSI Certified licence that could be > credibly argued to lie outside licensor's rights to require observance, > but would be interested if you can think of any. > > Some _theoretical_ requirements might be outside licensor's rights of > enforcement, e.g., obvious examples like ones in violation of criminal > law. The case of requirements impossible to carry out is perhaps a bit > more interesting; I'd be interested to see caselaw. We may be talking past eachother. My point is that most litigation is likely to be where the party accused of violating the license thought they were in compliance with the letter of the license and the plaintiff.copyright owner thought they weren't. This is where most enforcement action in court is likely to be, because otherwise as you say it's a no-win for the party clearly in violation of the license. Therefore, I think that lawsuits will more likely occur regarding the scope of requirements of the license than excusing one from the requirements directly (but those might in rare cases, for example arguments that interoperability is fundamentally protected as a matter of policy in copyright law provided patents are not at issue seems to be an interesting argument where copyleft licenses are at issue). So for example, suppose an OpenBSD developer sues a Linux developer for copyvio due to purporting to sublicense BSD code under the GPL with only de minimis modifications. If the BSD developer prevails, is that a successful enforcement of the BSD license? If the court rules that the BSD license constructively provides for sublicensing, does that make it failed enforcement? Similarly if Nusphere had persevered and prevailed against MySQL, would we count that as unsuccessful enforcement f the GPL? I just don't see raw court numbers as being very helpful at showing anything other than perhaps which licenses attract more litigation. Best Wishes, Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Chris Travers (ch...@metatrontech.com): > That assumes the goal is to invalidate a license's grant of rights. Shortly below what you quoted: There are of course other parties who might sue (other than a licensee), and other matters that might be asserted. > Far more likely, I would think, would be arguments over the scope of > the requirements of the license. I can't think of requirements in any OSI Certified licence that could be credibly argued to lie outside licensor's rights to require observance, but would be interested if you can think of any. Some _theoretical_ requirements might be outside licensor's rights of enforcement, e.g., obvious examples like ones in violation of criminal law. The case of requirements impossible to carry out is perhaps a bit more interesting; I'd be interested to see caselaw. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
I'll try to avoid the minor tempest about the list that has nothing to do with the proposal for a new format for a landing page, and just ask a question: On Sat, Jun 02, 2012 at 12:35:06PM -0700, Luis Villa wrote: > > Open Source licenses are licenses that comply with the Open Source > Definition and have been approved through the Open Source Initiative's > license review process. Is "have been approved through the [OSI's] license review process" really a requirement for being an "open source license", or is that just a requirement for being *certified* as an "open source license" by the OSI? It seems that there is a distinction to be made between "OSI-approved" and merely "open source", where "open source" would *by definition* (tautologically, it seems) be any license that conforms to the definition of open source. If nothing else, I'd think that avoiding a clear statement of approval as a requirement to be called "open source" might head off many objections over years to come and/or declining respect for the OSI as the entity responsible for defining open source. As things currently stand, some corporations and individuals question whether a license that makes source available solely for review is "open source", and a reference to the provenance of the term "open source" and the definition maintained by OSI is only sometimes effective at getting them to shut up. Adding a statement to the effect that the OSI is the sole gatekeeper of open-source-ness might prove counterproductive in the future because it effectively tells people that the "definition" is no longer really a definition, and serves solely as one of two criteria for OSI favor -- the other possibly being fancy or whim. Whether that is how the OSI conducts itself or not may then become irrelevant to the general public perception of the matter. -- Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ] ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Tue, Jun 5, 2012 at 8:32 PM, Rick Moen wrote: > And why in particular might litigation be dumb? Consider permissive > licences, for example. A licensee suing to invalidate such a licence's > grant of rights would achieve... having fewer rights. I.e., licensee > would have some implied rights from lawful receipt of the covered work, > but practically all substantive rights would remain reserved by default > to the copyright holder by default operation of copyright law. Well > done, Mr. Litigator! You've just scored an own goal. > That assumes the goal is to invalidate a license's grant of rights. Far more likely, I would think, would be arguments over the scope of the requirements of the license. For permissive licenses though, it would still be dumb. The cost of compliance is so much less than the cost of a lawsuit even if one wins that I would have trouble seeing a case where there was a colorable argument that would get to court unless one or both parties were idiots. Anyway this is to say I agree with the overall point. I don't know what counts as successful enforcement. Moreover if you define it as requiring court action, then you are selecting for licenses that are likely to be litigated. My vote: Get these changes up. Let's start another thread for talking about license recommendation practices. Best Wishes,. Chris Travers ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Rick, I suggested that metric to tease Larry. He's been vociferous about the GPL and its enforcement previously. You bring up the issue of court tests, though. It's not really the licenses that need testing, but some of the assumptions upon which they are built. So, Jacobsen v. Katzer was useful because it establishes that the Free Software developer has an economic interest and can use the full gamut of enforcement tools to protect that interest. Not because it included a court test of the Artistic License Version 1, a license that we are happily mostly rid of. Oracle v. Google, if it stands (we have about 2 months to see if Oracle will really file cert), does two things, I think. It makes it even clearer that we can re-implement proprietary APIs in Free Software with impunity, and it makes it even less likely that we can successfully enforce that run-time combination of works at an "API" boundary creates a derivative work. We'll take that, we're more interested in freedom than enforcement. I completely agree with you that it's silly to litigate with a Free Software developer. I'll take it farther, though. It's even silly to litigate with a Free Software developer /when they're wrong./ SFLC has previously insisted that dynamic-loaded Linux kernel drivers be provided in source form and under a Free Software license as a step in compliance. IMO they're on shaky ground with that; but it's easier to comply, in almost all cases, than to fight. So, I will continue to advise against proprietary run-time-loadable drivers despite Judge Alsop's finding on APIs. Thanks Bruce <> smime.p7s Description: S/MIME Cryptographic Signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
I wrote: > Quoting Bruce Perens (br...@perens.com): > > > On 06/04/2012 09:36 AM, Lawrence Rosen wrote: > > >Get rid of any indication that "popularity" [1] has anything to do > > >with legal viability. > > Yes. Let's instead rank the legal viability of licenses according to > > which ones have been enforced successfully the most times. You have > > no problem with that, do you Larry :-) > > If you do that, make sure you add a heavy weighting factor for licences > never attacked in court primarily because they were drafted by the > former chief counsel for OSI and because plaintiff is not an idiot. ;-> I had a serious point to make in passing, in case it wasn't obvious. For decades (but less often in recent years), one of the most common objections to any and all open source licensing was 'It's not well enough court tested.' This objection tended to come from people who had since forever used a metric tonne of proprietary software without even being curious about whether _its_ licensing had spent time in court. The more angles you examine that argument from, the more dumb it turns out to be. There are a myriad of reasons. One among many is: As any trial lawyer will tell you, the best kind of lawsuit is one you never have to litigate because the other side doesn't fight. Competent legal strategies are ones that aim to win by spending at most postage and ten minutes of paralegal time, followed by the other side doing what you want. Going to court means you need to spend money, and time, and you might even lose. So: Ranking the legal viability of licences according to 'which ones have been enforced successfully the most times', where 'enforced' is construed to mean 'fought over in court' skews your data to the point of meaninglessness, by artificially failing to count the millions of times particular licences have been 'enforced' by licensees deciding that litigation is dumb. And why in particular might litigation be dumb? Consider permissive licences, for example. A licensee suing to invalidate such a licence's grant of rights would achieve... having fewer rights. I.e., licensee would have some implied rights from lawful receipt of the covered work, but practically all substantive rights would remain reserved by default to the copyright holder by default operation of copyright law. Well done, Mr. Litigator! You've just scored an own goal. There are of course other parties who might sue (other than a licensee), and other matters that might be asserted. But, for all such claims, the absence of court cases cannot be fairly be seen as indicating a weak and possibly legally invalid licence. It's rather more credibly seen as the opposite. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Larry, I think that there is a broad consensus that a new attempt at license categorization should be undertaken. However, I think it is fair to say that everyone believes that such a process will take a significant amount of time to initiate, and run to completion. And we all need to recognize that any new process has no more chance of achieving unanimity than the previous attempts. In the meantime, the proposal here is to make a very modest clean-up of the licensing landing page to help OSS adopters. We are not reinventing anything, or taking any new positions as an organization. We are simply leveraging the work that was done previously. I acknowledge that the previous effort had its own set of controversies, but it has been the position of the OSI for several years now that these are the classifications we have. I certainly sympathize with all those who feel strongly about their licenses of choice. But being prevented from editing our licensing landing page for another year or two does not sound very enticing either. Now I'll say it publicly: I formally object to any attempt by OSI to pretend that the current list of "recommended licenses" has any value or validity, and I request that you NOT patch it by putting useless explanations around it. Please start a meaningful community process to develop license selection guidelines and explanations of the differences among licenses, and leave the politics and biases on the cutting room floor. ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
I don't think that the inclusion of MPL 2.0 in any way a bad decision. My assumption is that the Steward of the MPL requested that all significant references to the the MPL be modified to point to the new version. Similarly, the original list included both the CPL and the EPL. When the CPL was deprecated in favour of the EPL, the CPL was deleted from the list. This is just minimalistic, pragmatic, and common sensical list maintenance. [I'll add something now about MPL 2.0: It was submitted for approval in early December of last year and approved within a few months, as it should have been; it is a good license. Yet it appears already on the list of OSI-approved licenses" as "popular, widely used, or have strong communities." Is it because there are defenders of the MPL 2.0 on the OSI board? Is that honest, fair, unbiased and legitimate?] ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
"Lawrence Rosen" writes: >Now I’ll say it publicly: I formally object to any attempt by OSI to >pretend that the current list of “recommended licenses” has any value >or validity, and I request that you NOT patch it by putting useless >explanations around it. Please start a meaningful community process to >develop license selection guidelines and explanations of the >differences among licenses, and leave the politics and biases on the >cutting room floor. This discussion will go better if no one makes unwarranted assumptions about people's motivations for grouping licenses in certain ways. As has been explained multiple times, Luis's current proposal is intentionally based on something that was determined a long time ago, and he is doing it this way in order to be able to take one small step now -- and not have it bottlenecked by the larger & more complex discussion that needs to happen to update that list. I think Mike has pointed this out too. Luis and Mike are absolutely right, IMHO. The point is not that the list is the best list we can possibly have. It's that it is a starting point, and is still a better landing page than the one we have now. Regarding this point: >[I’ll add something now about MPL 2.0: It was submitted for approval >in early December of last year and approved within a few months, as it >should have been; it is a good license. Yet it appears already on the >list of OSI-approved licenses” as “popular, widely used, or have >strong communities.” Is it because there are defenders of the MPL 2.0 >on the OSI board? Is that honest, fair, unbiased and legitimate?] I think the list should use the most recent version of a license whose past versions met the criteria, unless there's some important reason not to do so. I believe that's the principle being followed here, though Luis or someone should please correct that if wrong. >[I’ll add something also about the absence of the AGPL or the OSL 3.0 >on the list: Both of those licenses have been rejected by Google >internally because such licenses are not friendly to their SaaS >models. Is that why they both are omitted from the list despite their >popularity, wide use, and strong communities?] Isn't it because their SaaS clauses are significant new things that were not present in the original evaluation, and including them now would be putting the cart before the horse? Maybe those two should be on an updated list, but, again, that's the discussion that still needs to be had. This is the right minimal step for the OSI to take now. You seem to be reacting as if this list is set in stone, and that no process will ever exist by which it can be updated. There is no basis for thinking that. However, just because you want to start that process right now doesn't mean everyone else does. Personally, I'd like to see this one small step get done first. Our current license landing page(s) are extremely unhelpful for newcomers. Now they will be somewhat more helpful, and with time we can make them very helpful. We're just on "somewhat" right now, and you want to be on "very". We'll get there. -K >-Original Message----- >From: Karl Fogel [mailto:kfo...@red-bean.com] >Sent: Tuesday, June 05, 2012 8:24 AM >To: lro...@rosenlaw.com >Cc: Luis Villa >Subject: Re: [License-discuss] proposal to revise and slightly >reorganize the OSI licensing pages > > > >"Lawrence Rosen" writes: > >>Karl, lest you mistakenly conclude that I support this proposal, I > >>attach a private email I sent to Luis this weekend. I'm not going > >>public yet, because I hope there is some chance still to avoid > >>resurrecting this entire argument again and avoid having to convince >an > >>unsuspecting public that OSI's popularity list is useless for any > >>analytical purposes. But I will try my best to do that if OSI >continues > >>on this path without a valid intellectual basis for its list. Do you >really need that? > >> > > > >>Feel free to copy the OSI board. > > > >I'm so definitely, certainly, positively not interested in having >off-list conversations about this process. It's hard enough keeping >up with the on-list stuff! :-) > > > >Thanks, > >-Karl > > > > > > > >Here’s the email I sent to Luis: > > > >[off-list] > > > >Hi Luis, > > > >I appreciate that you're trying to do good here on an issue that has >lingered for a long time, but I'll fight OSI all the way on this. Any >attempt to list such licenses as CDDL or MPL 2.0 while omitting >OSL/AFL/NOSL 3.0 will be met with resistance. There is FAR more use o
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 06/05/2012 09:22 AM, Lawrence Rosen wrote: [I’ll add something now about MPL 2.0: It was submitted for approval in early December of last year and approved within a few months, as it should have been; it is a good license. Yet it appears already on the list of OSI-approved licenses” as “popular, widely used, or have strong communities.” Is it because there are defenders of the MPL 2.0 on the OSI board? Is that honest, fair, unbiased and legitimate?] If MPL 2.0 was applied to Mozilla foundation software, it would immediately qualify as "popular, widely used, or have strong communities". There are some absolutely horrid licenses that have strong communities. A certain font license comes to mind. <> smime.p7s Description: S/MIME Cryptographic Signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Karl Fogel wrote: I'm so definitely, certainly, positively not interested in having off-list conversations about this process. It's hard enough keeping up with the on-list stuff! :-) I'm now with Karl on this. Sorry for going private too early in the game. Now I'll say it publicly: I formally object to any attempt by OSI to pretend that the current list of "recommended licenses" has any value or validity, and I request that you NOT patch it by putting useless explanations around it. Please start a meaningful community process to develop license selection guidelines and explanations of the differences among licenses, and leave the politics and biases on the cutting room floor. /Larry P.S. Some added thoughts since my previous emails as simple examples of the biases that I've seen: [I'll add something now about MPL 2.0: It was submitted for approval in early December of last year and approved within a few months, as it should have been; it is a good license. Yet it appears already on the list of OSI-approved licenses" as "popular, widely used, or have strong communities." Is it because there are defenders of the MPL 2.0 on the OSI board? Is that honest, fair, unbiased and legitimate?] [I'll add something also about the absence of the AGPL or the OSL 3.0 on the list: Both of those licenses have been rejected by Google internally because such licenses are not friendly to their SaaS models. Is that why they both are omitted from the list despite their popularity, wide use, and strong communities?] -Original Message- From: Karl Fogel [mailto:kfo...@red-bean.com] Sent: Tuesday, June 05, 2012 8:24 AM To: lro...@rosenlaw.com Cc: Luis Villa Subject: Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages "Lawrence Rosen" < <mailto:lro...@rosenlaw.com> lro...@rosenlaw.com> writes: >Karl, lest you mistakenly conclude that I support this proposal, I >attach a private email I sent to Luis this weekend. I'm not going >public yet, because I hope there is some chance still to avoid >resurrecting this entire argument again and avoid having to convince an >unsuspecting public that OSI's popularity list is useless for any >analytical purposes. But I will try my best to do that if OSI continues >on this path without a valid intellectual basis for its list. Do you really need that? > >Feel free to copy the OSI board. I'm so definitely, certainly, positively not interested in having off-list conversations about this process. It's hard enough keeping up with the on-list stuff! :-) Thanks, -Karl Here's the email I sent to Luis: [off-list] Hi Luis, I appreciate that you're trying to do good here on an issue that has lingered for a long time, but I'll fight OSI all the way on this. Any attempt to list such licenses as CDDL or MPL 2.0 while omitting OSL/AFL/NOSL 3.0 will be met with resistance. There is FAR more use of my licenses than CDDL or some others. MPL 2.0 is mostly Mozilla, which has some "friends" on the OSI board. This selection process is riddled with cronyism, misinformation, and unnecessary politics. Not good at all /Larry > > >-Original Message- >From: Karl Fogel <mailto:[mailto:kfo...@red-bean.com]> [mailto:kfo...@red-bean.com] >Sent: Sunday, June 03, 2012 4:14 PM >To: <mailto:license-discuss@opensource.org> license-discuss@opensource.org >Subject: Re: [License-discuss] proposal to revise and slightly >reorganize the OSI licensing pages ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Bruce, as one form of information relevant to license selection, of course I have no objection to what you suggest. There will be very few licenses in that category, though. That's fortunate. :-) /Larry Lawrence Rosen Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com) 3001 King Ranch Rd., Ukiah, CA 95482 Office: 707-485-1242 -Original Message- From: Bruce Perens [mailto:br...@perens.com] Sent: Monday, June 04, 2012 10:24 AM To: lro...@rosenlaw.com; license-discuss@opensource.org Subject: Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages On 06/04/2012 09:36 AM, Lawrence Rosen wrote: > Get rid of any indication that "popularity" [1] has anything to do > with legal viability. Yes. Let's instead rank the legal viability of licenses according to which ones have been enforced successfully the most times. You have no problem with that, do you Larry :-) ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Quoting Bruce Perens (br...@perens.com): > On 06/04/2012 09:36 AM, Lawrence Rosen wrote: > >Get rid of any indication that "popularity" [1] has anything to do > >with legal viability. > Yes. Let's instead rank the legal viability of licenses according to > which ones have been enforced successfully the most times. You have > no problem with that, do you Larry :-) If you do that, make sure you add a heavy weighting factor for licences never attacked in court primarily because they were drafted by the former chief counsel for OSI and because plaintiff is not an idiot. ;-> ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Luis Villa asked: Putting aside the specific basis for your objections for now, why are you objecting now and not in the past five years this list has been in use? Is there a particular change in the context that you think the new draft language introduces, or...? Luis, I have objected regularly and consistently to that particular list. Look in the archives. I'm tired of OSI suggesting that it will take "another five years" to simply get rid of it. Replace it with something with meaning and purpose. I've offered drafts of that improved categorization. Again, look in the archives. Or if you prefer not looking in the archives, charter a committee to address the "recommended licenses" list and deal with the politics in public instead of behind the OSI board's implied imprimatur. I will be pleased to address Chuck Swiger's and other's comments about how to craft a valuable list in a separate thread after OSI accepts the need to do so and stops propagating licensing nonsense. /Larry Lawrence Rosen Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com) 3001 King Ranch Rd., Ukiah, CA 95482 Office: 707-485-1242 -Original Message- From: Luis Villa [mailto:l...@tieguy.org] Sent: Monday, June 04, 2012 10:02 AM To: lro...@rosenlaw.com; license-discuss@opensource.org Subject: Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages On Mon, Jun 4, 2012 at 9:36 AM, Lawrence Rosen < <mailto:lro...@rosenlaw.com> lro...@rosenlaw.com> wrote: > Luis Villa writes: >> The following Open Source licenses are popular, widely used, or have >> strong communities: > > As long as that list remains, I will object. It is inaccurate, > incomplete, misleading, subject to cronyism and personal bias by > members of the OSI board of directors, and does not reflect the actual > importance or uses of those licenses. Putting aside the specific basis for your objections for now, why are you objecting now and not in the past five years this list has been in use? Is there a particular change in the context that you think the new draft language introduces, or...? Luis ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On 06/04/2012 09:36 AM, Lawrence Rosen wrote: Get rid of any indication that "popularity" [1] has anything to do with legal viability. Yes. Let's instead rank the legal viability of licenses according to which ones have been enforced successfully the most times. You have no problem with that, do you Larry :-) <> smime.p7s Description: S/MIME Cryptographic Signature ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Hi-- On Jun 4, 2012, at 9:36 AM, Lawrence Rosen wrote: > Luis Villa writes: >> The following Open Source licenses are popular, widely used, or >> have strong communities: > > As long as that list remains, I will object. It is inaccurate, incomplete, > misleading, subject to cronyism and personal bias by members of the OSI > board of directors, and does not reflect the actual importance or uses of > those licenses. Ah, Larry-- you can take a lawyer out of the courtroom, but evidently one cannot take the legalese out of what a lawyer says. :-) There is no judge here to object to; there's only the OSI community. > Get rid of any indication that "popularity" [1] has anything to do with > legal viability. Define what you mean by "widely used" [2]. What is a > "strong community" [3]? > > /Larry > > [1] I've already pointed out that the Black Duck statistics on popularity > are in error! This might be true; is there better data available which we can use to compare? Otherwise, I'd start by looking at SourceForge, github, and so forth to get a rough idea. > [2] Do you mean lines of code? Number of software packages? And where's the > data to back up that list? Let's say that Luis provided some data in response. Would you accept that, or would you continue to debate the matter until your favorite licenses appear? > [3] Since when is the community for Open Solaris (CDDL) stronger than the > community for Magento or the US government software distributed under OSL > 3.0, or the non-Apache software contributed to lots of projects under AFL > 3.0, or the IETF software distributed under NOSL 3.0 (a license, by the way, > that has no equivalent)? Since always, frankly. I've never even heard of Magento, but all of the platforms I use with the possible exception of MS Windows include CDDL software like DTrace or ZFS at the kernel level. I know that even Windows is using Sun RPC [1], although that was not under the CDDL when RPC, NFS and such was being proposed as community standards via RFC process [2]. > Yes, I'm as biased as the members of the OSI board when it comes to licenses, > and I intend to be as loud a voice as you are as long as you continue to > propagate that nonsensical list. The main license I see missing from the list is zlib; again, I don't think I can find a single platform around which doesn't use zlib. Regards, -- -Chuck PS: The acronyms are nearly overloaded: [1] RPC = "Remote Procedure Call"; [2] RPC = "Request for Comments". ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Mon, Jun 4, 2012 at 9:36 AM, Lawrence Rosen wrote: > Luis Villa writes: >> The following Open Source licenses are popular, widely used, or >> have strong communities: > > As long as that list remains, I will object. It is inaccurate, incomplete, > misleading, subject to cronyism and personal bias by members of the OSI > board of directors, and does not reflect the actual importance or uses of > those licenses. Putting aside the specific basis for your objections for now, why are you objecting now and not in the past five years this list has been in use? Is there a particular change in the context that you think the new draft language introduces, or...? Luis ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
Luis Villa writes: > The following Open Source licenses are popular, widely used, or > have strong communities: As long as that list remains, I will object. It is inaccurate, incomplete, misleading, subject to cronyism and personal bias by members of the OSI board of directors, and does not reflect the actual importance or uses of those licenses. Get rid of any indication that "popularity" [1] has anything to do with legal viability. Define what you mean by "widely used" [2]. What is a "strong community" [3]? /Larry [1] I've already pointed out that the Black Duck statistics on popularity are in error! [2] Do you mean lines of code? Number of software packages? And where's the data to back up that list? [3] Since when is the community for Open Solaris (CDDL) stronger than the community for Magento or the US government software distributed under OSL 3.0, or the non-Apache software contributed to lots of projects under AFL 3.0, or the IETF software distributed under NOSL 3.0 (a license, by the way, that has no equivalent)? Yes, I'm as biased as the members of the OSI board when it comes to licenses, and I intend to be as loud a voice as you are as long as you continue to propagate that nonsensical list. /Larry Lawrence Rosen Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com) 3001 King Ranch Rd., Ukiah, CA 95482 Office: 707-485-1242 -Original Message- From: Luis Villa [mailto:l...@tieguy.org] Sent: Monday, June 04, 2012 9:17 AM To: License Discuss Subject: Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages On Sat, Jun 2, 2012 at 12:35 PM, Luis Villa wrote: > The following Open Source licenses are popular, widely used, or > have strong communities: > > Apache License, 2.0 (Apache-2.0) > BSD 3-Clause "New" or "Revised" license (BSD-3-Clause) > BSD 3-Clause "Simplified" or "FreeBSD" license (BSD-2-Clause) > GNU General Public License (GPL) > GNU Library or "Lesser" General Public License (LGPL) > MIT license (MIT) > Mozilla Public License 2.0 (MPL-2.0) > Common Development and Distribution License (CDDL-1.0) > Eclipse Public License (EPL-1.0) Because there appears to have been some confusion, judging from private emails, let me be explicit that this is exactly the same list currently described as "License [sic] that are popular and widely used or with strong communities." No changes, editorial or otherwise, have been made except to change the category name into a complete sentence. Do NOT suggest changes to this list at this time. It is not perfect, but it is long-settled, and will not be revised until many months (more likely years) of work have been done. Luis ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
On Sat, Jun 2, 2012 at 12:35 PM, Luis Villa wrote: > The following Open Source licenses are popular, widely used, or > have strong communities: > > Apache License, 2.0 (Apache-2.0) > BSD 3-Clause "New" or "Revised" license (BSD-3-Clause) > BSD 3-Clause "Simplified" or "FreeBSD" license (BSD-2-Clause) > GNU General Public License (GPL) > GNU Library or "Lesser" General Public License (LGPL) > MIT license (MIT) > Mozilla Public License 2.0 (MPL-2.0) > Common Development and Distribution License (CDDL-1.0) > Eclipse Public License (EPL-1.0) Because there appears to have been some confusion, judging from private emails, let me be explicit that this is exactly the same list currently described as "License [sic] that are popular and widely used or with strong communities." No changes, editorial or otherwise, have been made except to change the category name into a complete sentence. Do NOT suggest changes to this list at this time. It is not perfect, but it is long-settled, and will not be revised until many months (more likely years) of work have been done. Luis ___ License-discuss mailing list License-discuss@opensource.org http://projects.opensource.org/cgi-bin/mailman/listinfo/license-discuss
Re: [License-discuss] proposal to revise and slightly reorganize the OSI licensing pages
I completely support this, and am very happy to have it supersede my original proposed new page -- this way is better, both in the short term and the long term. Thanks for the well-explained proposal, Luis. I especially like the second item under Miscellany, by the way :-). That will make maintenance of the list much easier, and I think it is something Infrastructure should look at after the Drupal upgrade. Terse only because in an airport waiting lounge, -Karl Luis Villa writes: >Following up on Karl's email of a few months ago, this is a >deliberately low-key proposal from me and other board members to >simplify and improve how the OSI-approved licenses are presented on >the OSI website. As it currently stands, we don't have a page we can >point a newcomer to to learn about what an open source license is, or >what the most common licenses are. We'd like to solve that, at least >in part, by making the current http://opensource.org/licenses/ more >useful by highlighting the most common licenses and by providing a bit >more context about what it means to be an open source license. > >Despite coming from me and other board members, the text and layout >below are just a proposal, and are of course open to suggestions, >improvements, and discussion. > >What This Is Not > > >Karl's original proposal included suggestions of how to change and >update which licenses belong in which categories. This email and >proposed web site changes are definitely not addressing that issue. I >feel (and I'm pretty sure others on the board feel) that those >questions should be addressed, but because those are complex issues >that will inevitably involve months of careful discussion and >planning, and because we all agree that the current website layout is >unsatisfactory, we'd like to not block this quicker, smaller >discussion. > >The Proposal >= > >1. Reorganize the left-side navigation. What is currently "Open Source >Licenses," with sub-points "Licenses by Category", "Licenses by Name", >"License Review Process," and "License Proliferation," would simply >become "Open Source Licensing" (content of that page discussed below). >"License Review Process" and "License Proliferation" would be moved to >bullets under "The Open Source Definition," because those pages are >primarily about OSI's process and standards rather than about specific >licenses or about open source licenses more generally. > >By slightly hiding the "by category" and "by names" pages, we'd be >funneling people (particularly newcomers) to a slightly more >informative page (and one that can be improved over time), while not >losing the master lists altogether for the times when those are >needed. > >2. The "Open Source Licensing" page (replacing >http://opensource.org/licenses/) would be fleshed out to say >(hopefully all changes self-explanatory): > >Open Source licenses are licenses that comply with the Open Source >Definition and have been approved through the Open Source Initiative's >license review process. > >The following Open Source licenses are popular, widely used, or >have strong communities: > >Apache License, 2.0 (Apache-2.0) >BSD 3-Clause "New" or "Revised" license (BSD-3-Clause) >BSD 3-Clause "Simplified" or "FreeBSD" license (BSD-2-Clause) >GNU General Public License (GPL) >GNU Library or "Lesser" General Public License (LGPL) >MIT license (MIT) >Mozilla Public License 2.0 (MPL-2.0) >Common Development and Distribution License (CDDL-1.0) >Eclipse Public License (EPL-1.0) > >A complete list of all Open Source Initiative-approved licenses, >including those above, is available: > >sorted by name (alphabetical) >sorted by category > >For more information about Open Source licenses and in particular >about the Open Source Initiative's license review process, see: > >The Open Source Definition (annotated version) >The OSI License Review Process >Information on License Proliferation and the 2006 License >Proliferation Report > >Miscellany > > >* We'll of course clean up any dangling links caused by changed URLs >and set up proper redirects before changing any URLs. (Not entirely >clear it makes sense to change /licenses/ to /licensing/, which would >be the primary URL change based on the previous suggestions). > >* In the longer term, once Drupal is upgraded, it will likely make >sense to generate http://opensource.org/licenses/alphabetical and >http://opensource.org/licenses/category programatically, rather than >through the current manual listing, which is of course error-prone. >(Some people have suggested doing away with the alphabetical list >altogether, which I personally would be fine with.) That may cause >some more tweaks in URLs and layouts, but we'll cross that bridge when >we come to it. >___ >License-discuss mailing list >License-discuss@o
