RE: On the licensing terms of the open source licenses text

2004-07-10 Thread Rod Dixon, J.D., LL.M.
Larry  Philippe - my take on this issue is that it is not a good idea to
copy an open source license, if the author of the license text explicitly
withholds permission.  On the other hand, I have always assumed that the
claim to copyright in an open source license text is both ironic and
debatable. 

The irony arises from the fact that open source licenses not only are often
(nearly always) are intended to be distributed by those who are not the
purported author (the license often travels with the copy of the work),
but the practice of posting approved open source liscenses on opensource.org
connotes that the text may be used by others. Granted, these practices may
not disrupt an author's rights, but it is an ironic position.

The debatable aspect arises from the fact that by the nature of the special
class or type of software license, most open source license texts are
necessarily derivative of a preexisting free/open source license (except,
perhaps, the first one or two original licenses). 

Few (if any) are going to draft an open source license without studying a
preexisting license very closely. In addition, if there are terms-of-art,
you will wisely likely want to use those terms rather than creating your
own.  Consequently, the copyright in most open source license texts is more
illusion than real. Even so, this should not mean that you should copy a
license text, change a few terms, claim it as your own, but identify it as
the OSL, GPL, or whatever. As has been noted on this list often, the way you
use a preexisting open source license as a template for your own use should
be done with careful planning.

-Rod
 


-Original Message-
From: Lawrence Rosen [mailto:[EMAIL PROTECTED] 
Sent: Friday, July 09, 2004 7:08 PM
To: 'Philippe Ombredanne'
Cc: [EMAIL PROTECTED]
Subject: RE: On the licensing terms of the open source licenses text

Philippe Ombredanne wrote:
 So the questions are:
 How can I reuse the text of a license like the OSL to create a new
 license?
 Is this licensed under the OSL?
 Or restricted to Larry's terms?
 
 Can I create a new license, for instance the nexB public license, based
 on the text of the OSL, or other license text but with every reference
 to the OSL removed, except for copyright attributions, creating a
 derivative work of the license text?
 
 And if I use an existing OSI approved license as a base, would I need to
 go through the full legal commentary to submit it for approval? (BTW, I
 know this was debated in the past, but did not find any conclusion on
 the topic.
 
 --
 Cheers
 Philippe

Cheers, indeed! :-)

I'm looking forward to hearing the discussion. I certainly don't want to be
like some power-grabbing monopolist who claims more intellectual property
rights than the law allows. What part, after all, of my license is
copyrightable subject matter? Everything? We've made copyright so expansive
that I expect to see such notices on graffiti soon.

/Larry

Lawrence Rosen 
Rosenlaw  Einschlag, technology law offices (www.rosenlaw.com)
General counsel, Open Source Initiative (www.opensource.org) 
3001 King Ranch Road, Ukiah, CA 95482 
707-485-1242 * fax: 707-485-1243 
email: [EMAIL PROTECTED] 



 -Original Message-
 From: Philippe Ombredanne [mailto:[EMAIL PROTECTED]
 Sent: Friday, July 09, 2004 11:02 AM
 To: [EMAIL PROTECTED]
 Subject: On the licensing terms of the open source licenses text
 
 Dear licenses enthusiasts,
 I have a question about the licenses of the text of the licenses
 themselves.
 Very specifically, I wanted to create our own license, based on the OSL,
 but I am taking the OSL here as an example.
 And taking the OSL as example gives definitely a recursive feel to the
 topic...
 
 The OSL and many other licenses have fine prints like that:
  This license is Copyright (C) 2003-2004 Lawrence E. Rosen.
  All rights reserved. Permission is hereby granted to copy and
  distribute this license without modification. This license may
  not be modified without the express written permission of its
  copyright owner.
 This obviously restricts the reuse of the license text in other
 licenses.
 
 On the other hand, every web page on opensource.org has the following
 footer:
  Copyright C 2004 by the Open Source Initiative
  The contents of this website are licensed under the
  Open Software License 2.1 or Academic Free License 2.1
 This could be construed as making the text of the licenses available
 under the OSL.
 
 So the questions are:
 How can I reuse the text of a license like the OSL to create a new
 license?
 Is this licensed under the OSL?
 Or restricted to Larry's terms?
 
 Can I create a new license, for instance the nexB public license, based
 on the text of the OSL, or other license text but with every reference
 to the OSL removed, except for copyright attributions, creating a
 derivative work of the license text?
 
 And if I use an existing OSI approved license as a base, would I need to
 go through the full legal commentary to 

Re: On the licensing terms of the open source licenses text

2004-07-09 Thread Rick Moen
Quoting Philippe Ombredanne ([EMAIL PROTECTED]):

[Blanket copyright statement on OSI Web pages.]

 This could be construed as making the text of the licenses available
 under the OSL.

I think the Web maintainer's clearly implied intent is to state terms
for written materials (a) for which terms are not otherwise specified,
and (b) owned by OSI.

As you yourself pointed out, copyright over the OSL's text as a creative
work isn't owned by OSI, but rather by Larry Rosen.  Therefore, even if
an OSI Web page purported to grant you some rights to it, that page
would be factually mistaken in so claiming.

 How can I reuse the text of a license like the OSL to create a new
 license?

It seems to me that you cannot, by Larry's specific intent.  (Of course,
you can lawfully write and publish a licence along very similar lines
using OSL as a model, avoiding copyright infringement by writing
something that is in a legal sense a separate work and not derivative of
Larry's.  The details of how to do so are, well..., your problem.)

This sort of restriction is both common and in place for obvious
and perfectly compelling reasons:  FSF, for example, doesn't really want
dozens of almost-but-not-quite GPL licences floating around to confuse
people.

 Is this licensed under the OSL? 

Nope.

 Or restricted to Larry's terms?

Yes.

 Can I create a new license, for instance the nexB public license, based
 on the text of the OSL, or other license text but with every reference
 to the OSL removed, except for copyright attributions, creating a
 derivative work of the license text?

If you're seeking specific advice on how to create a new work very
similar to an existing one, but not legally a derivative of the older
one, you really should be speaking to a good copyright attorney, not
this mailing list.

Or, of course, you could just tell Larry what you want to do, and ask
permission.

 And if I use an existing OSI approved license as a base, would I need to
 go through the full legal commentary to submit it for approval? 

How could the answer possibly be anything but yes?

And all of this begs the question of why on earth you're seeking to
create Yet Another Public Licence, rather than using one of the existing
ones.  Historically, most people's reasons for doing so have been
ill-advised and ultimately self-defeating.

-- 
Hi! I'm a .signature virus! Copy me into your ~/.signature  to help me spread.
Hi!p I'm a .signature spread virus! Copy into your ~/.signature to help me
Hilp I'm .sign turepread virus! into your ~/.signature! help me! Copy
Help I'm traped in your ~/signature help me!   -- Joe Slater
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license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3


RE: On the licensing terms of the open source licenses text

2004-07-09 Thread Lawrence Rosen
Philippe Ombredanne wrote:
 So the questions are:
 How can I reuse the text of a license like the OSL to create a new
 license?
 Is this licensed under the OSL?
 Or restricted to Larry's terms?
 
 Can I create a new license, for instance the nexB public license, based
 on the text of the OSL, or other license text but with every reference
 to the OSL removed, except for copyright attributions, creating a
 derivative work of the license text?
 
 And if I use an existing OSI approved license as a base, would I need to
 go through the full legal commentary to submit it for approval? (BTW, I
 know this was debated in the past, but did not find any conclusion on
 the topic.
 
 --
 Cheers
 Philippe

Cheers, indeed! :-)

I'm looking forward to hearing the discussion. I certainly don't want to be
like some power-grabbing monopolist who claims more intellectual property
rights than the law allows. What part, after all, of my license is
copyrightable subject matter? Everything? We've made copyright so expansive
that I expect to see such notices on graffiti soon.

/Larry

Lawrence Rosen 
Rosenlaw  Einschlag, technology law offices (www.rosenlaw.com)
General counsel, Open Source Initiative (www.opensource.org) 
3001 King Ranch Road, Ukiah, CA 95482 
707-485-1242 * fax: 707-485-1243 
email: [EMAIL PROTECTED] 



 -Original Message-
 From: Philippe Ombredanne [mailto:[EMAIL PROTECTED]
 Sent: Friday, July 09, 2004 11:02 AM
 To: [EMAIL PROTECTED]
 Subject: On the licensing terms of the open source licenses text
 
 Dear licenses enthusiasts,
 I have a question about the licenses of the text of the licenses
 themselves.
 Very specifically, I wanted to create our own license, based on the OSL,
 but I am taking the OSL here as an example.
 And taking the OSL as example gives definitely a recursive feel to the
 topic...
 
 The OSL and many other licenses have fine prints like that:
  This license is Copyright (C) 2003-2004 Lawrence E. Rosen.
  All rights reserved. Permission is hereby granted to copy and
  distribute this license without modification. This license may
  not be modified without the express written permission of its
  copyright owner.
 This obviously restricts the reuse of the license text in other
 licenses.
 
 On the other hand, every web page on opensource.org has the following
 footer:
  Copyright C 2004 by the Open Source Initiative
  The contents of this website are licensed under the
  Open Software License 2.1 or Academic Free License 2.1
 This could be construed as making the text of the licenses available
 under the OSL.
 
 So the questions are:
 How can I reuse the text of a license like the OSL to create a new
 license?
 Is this licensed under the OSL?
 Or restricted to Larry's terms?
 
 Can I create a new license, for instance the nexB public license, based
 on the text of the OSL, or other license text but with every reference
 to the OSL removed, except for copyright attributions, creating a
 derivative work of the license text?
 
 And if I use an existing OSI approved license as a base, would I need to
 go through the full legal commentary to submit it for approval? (BTW, I
 know this was debated in the past, but did not find any conclusion on
 the topic.
 
 --
 Cheers
 Philippe
 
 philippe ombredanne | nexB - Open IT Asset Management
 1 650 799 0949 | pombredanne at nexb.com
 http://www.nexb.com
 
 
 --
 license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

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