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OSI Approves Two New Licenses
An anonymous reader writes "The Open Source Initiative approved two new licenses. One, the Academic Free License is a MIT/BSD-like license . The other one, the Open Software License is an apparently GPL-incompatible "viral" license with some obnoxious clauses. Both have an interesting "mutual termination for patent action" clause - basically, the license terminates if you file a lawsuit in any court against any software that is licensed under an OSI approved license containing the same clause."
I doubt that this clause would hold in any court, because it refers to lawsuits involving other software which is not covered by the license agreement of the first one. No, the other software is under the same license type, but the license agreement is a different one.
They are aloud to file lawsuits, they just cannot use the software if they do. All it means is that by using this software you are allowing all of your patents to be used in other open source software.
The company is not even giving upo thier patent, they could at any time stop using/distributing/deploying the software and sue to their hearts content.
Because it is a patent and not a copyright, it can be selectivly enforced and compettors not releaseing open sourced software that benifit everbody still cannot use the patent.
Wow, sent an e-mail as suggested when clicking on "use classic" banner, and got a fast response that addressed my msg
uhm. Everyone can write his/her own license, of course. So I guess the number of licenses is practically infinite :)
But that 'external deployment' stuff restricts how you may *use* the software, not just how you may distribute copies. It seems like enough to make the program non-free. Consider the DFSG: 'no discrimination against fields of endeavour'. Doesn't that mean no special requirements for using the program in a web page as opposed to a command-line app?
Also this means that the licence becomes an EULA, because it purports to restrict use of the software and not just to grant permissions for copying. The GPL's enforceability is based on copyright, but copyright (in most countries) does not require you to get permission before merely running a computer program.
Look at the text: 'you agree that any external deployment shall be deemed a distribution'. But you can't 'agree' that unless the licence is considered some kind of contract. With the GPL, it is up to copyright law to decide what counts as distributing the software. Here the licence attempts to extend copyright to count all sorts of random things as infringement, but I don't see how a court would agree with that.
Personally I've long since given up taking notice of anything the Open Source Initiative certifies. Ever since they gave their stamp of approval to that Apple licence which allows 'revokation' at any point in the future when Apple's lawyers decide not to contest a patent infringement in court. The FSF may wrap its pronouncements in ideological justification which is offputting to some, but at least when they say that a program is free software you can be sure it is.
-- Ed Avis ed@membled.com
Maybe the GPL works for you, but its viral nature does not work for everyone.
If Linux got placed under this license, then I think you would be correct, (at least for new versions: anything under existing licenses would be unaffected, I imagine).
Whilst the idea of stopping some of the patent law suits is appealing, this license is open to abuse. What if I steal some innovative code of yours and imbed it in an application of mine, which I then put under this new license?
It only works if you can be asured of the good faith of all participants. And if you can do that, then what do we need with it in the first place?
The license says that if you sue another open source project, you can't use the product any more.
It's both more powerful [sp?] and less powerful than that.
It says:
This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License if You file a lawsuit in any court alleging that any OSI Certified open source software that is licensed under any license containing this "Mutual Termination for Patent Action" clause infringes any patent claims that are essential to use that software.
It's more powerful because you don't have to sue "the project" to
activate the clause. You only have to file a lawsuit. It could be against anyone. This is important because open source developers generally don't have enough money to attract a lawsuit, but users of our software might have.
It's less powerful because the license doesn't grant (or withhold) the right to "use" the software, other than by copying it, or performing it or displaying it publicly. The latter two may have implications on using it as a part of a web site, but IANAL.
Glenn
How can you use my intestines as a gift? -Actual Hong Kong subtitle.
The only free license is no license at all. While I realize that there are sometimes good reasons to release under a particular "open source" license, there's a lot of code out there that should, could, and would be in the public domain if it were not for the screaming egos of their authors.
Proud member of the Weirdo-American community.
My point was that people think they could use the GPL to force this, but nobody has actually done it yet as far as I know.
All copyright law says is that if you copy without permission, you have infringed a copyright, and it specifies the penalties for that.
It doesn't say about how you get permission, or an implied contract to do things (like publish your changes under GPL). Implied contracts and whether you agree to them is a contentious issue.
Do you really think that if software says "Use of this software implies agreement with this contract which says you will do what we tell you to do" is or should be enforceable?
Has it been over a year since you last donated to the Electronic Frontier Foundation
In that regard, if the idea is to protect the developer (and OSI / OSS / FS developers in general) from a lawsuite, why not just say "by accepting this license, you agree not to file lawsuites against any OSI / OSS / FS software developer?
Because then nobody would use the software, probably even including you. Imagine the following hypothetical:
Some 31337 h4x0r roots your box. This rooting of your box costs you lots of money (say he stole your credit card number, or took down your business website, or something). It just so happens that this particulat 31337 h4x0r also contributed some code to $yourGPLdMailClient. Instead of being able to sue the little brat, you're high and dry.
Now, if we limit the clause to "licensees may not sue any OSS developer for patent infringement", the problems you or I would have using the software go away. However, this is a Bad Thing for large-scale corporate adoption of OSS. If the company has any software patent portfolio at all, their legal department will demand that all OSS stays off all of their boxen, since otherwise they may as well forget about ever enforcing their software patents on anyone. (Say I'm sued for doing some really egregious and horrible software patent infringement. But hey -- I once contributed some code to Mozilla! I'm off the hook!)
Rosen's license is cool, but scary. It's far too easy to come up with hypos that make patent-suit-stopping clauses bad news.
Think about it. What if the GPL said "You may not use this software unless you give the FSF 1 billion dollars. Re-copying of this software implies acceptance of this price."
It's not re-copying but redistributing. That said, though, the 1 billion dollar thing would constitute an unconscionable license (something no sane person would agree to) and so would be thrown out in court based on that. The GPL as it stands is not unconsciable, however -- a great many reasonable people have decided of their own free will to comply.
Anyhow, if you make an illegal copy of a piece of GPLed software and you don't agree to the GPL, that's right -- you still haven't bound yourself to the license; you've merely committed copyright infringement. That is indeed how the GPL actually works, in real life, when those who violate the copyright of free software are challenged for their actions. That doesn't make the GPL "untested" or an inadequate license; it merely sets out exactly how someone failing to comply will be treated by the legal system.
Two things: first, I don't think that it would have the same effect. Currently I read the clause as a kind of 'morality enforcer' that says "if you do something I don't like - even if it doesn't involve me or my software - you can't use my software" with the think you don't like being enforcing software patents against OSS software.
Example:
-Company A has the patent to MP3s
-Company A uses Person B's code (licensed with this patent clause) in a program that displays images (completely unrelated to MP3s)
-Person C writes a MP3 player and licenses it with the patent clause
-Company A can't sue Person C without losing the right to use Person B's code, even though Person A and his/her program is completely unrelated to Person C and his/her program and the MP3 patent.
Second point: regarding where you mention "the "mutual termination" clause may either be invalid by itself or make the entire license invalid", you might be able to write a clause in the license that says "if any part of this license is found to be unenforcable, the rest stands". I've heard someone mention that congress writes similar clauses into it's laws (regarding being declared unconstitutional) but have no clue otherwise if this is true or not.
I believe the patent clause is ill considered.
There are times when it is legitimate for someone to sue because someone violates their patent. There is also a legitimate place in the market for closed source software.
Frankly, I don't like the idea that if I patent something I have to let anyone who writes open source use it royalty free. I think many people will be offended by this license and I certainly won't use it on any open source software I write.
-All that is gold does not glitter - Tolkien
www.ra
My ideal license =
GPL + several additional clauses:
#1 An anti-advertising clause, as is (I believe) in the BSD-license: Neither the name of the nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
#2 Another anti-advertising clause, preventing the author of modifications from having in-software ads, as are used in Opera.
#3 Mutual Termination for Patent Action. This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License if You file a lawsuit in any court alleging that any OSI Certified open source software that is licensed under any license containing this "Mutual Termination for Patent Action" clause infringes any patent claims. Alternatively, if you retract the lawsuite, this termination is nullified.
[#4 Addition to Mutual Termination for Patent Action. Additionally, you will no longer have the right to use the software for your own personal use if You file a lawsuit in any court alleging that any OSI Certified open source software that is licensed under any license containing this "Addition to Mutual Termination for Patent Action" clause infringes any patent claims. Alternatively, if you retract the lawsuite, this termination is nullified.] Not sure about this one, as it requires that people accept the license whether or not they want to distribute modified code; one of the great things about the GPL is that you don't have to accept the license.
#5 Mutual Termination for Other Action. This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License if You file any intellectual property lawsuit (i.e., trademark, copyright, patent, etc) in any court against any OSI Certified open source software that is licensed under any license containing this "Mutual Termination for Other Action" clause. Alternatively, if you retract the lawsuite, the termination is nullified.
#6 Global Termination for Other Action. This License shall terminate automatically for everyone in the world and they may no longer exercise any of the rights granted to them by this License (or even use the software at all) if You file any intellectual property lawsuit in any court against any OSI Certified open source software that is licensed under any license containing this "Mutual Termination for Other Action" clause and win that lawsuite. Alternatively, if you retract the lawsuite or retract the win, the termination is nullified.
This is basically, again, designed to protect OSS / FS projects and users.
social sciences can never use experience to verify their statemen
Software should be patentable or copyrightable, not both. And the government should pick one soon and stick with it. If it is patentable you MUST open the source, but can sue people for the sources use for 15 years. If it is copyrightable (which is what I think it is) then you can do whatever you want with it, but not sue people for doing the same thing another way. If, for example apple has some random transparencly patent (which they do, but I forget the spicifics) they must open (probably closer to "share") the code that implements it, and get the protection for 15 years, but then it is fair game. A patent on something like this is silly if combined with a copyright though.
If the publishing industry did the same it would be like someone patenting the concept of a plot twist at the end of a mystery novel, and writing a book to demonstrate. Then for 15 years nobody was aloud to use that plot device, after that it was open though, even their exact implimentation.
Of course in many ways closed source software is more like a vacuum then a book. To get to the meat of it requires disasembly which is fair less trivial then reading a book, so perhaps that is they way it should be looked at. But I absolutly do not think that you should get 15 years of protection from different implamentations of the same thing, and near infinate protection from exact implimentations of your software. It is an either or scenario.
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Can someone explain how Linux is doing something good for the community by creating an operating system incompatible with MS Windows?
Choice is your friend.
7. What we cannot speak about we must pass over in silence.
The OSI can't help you, because the terms you are asking for conflict with the Open Source Definition. You seek to forbid profit, to forbid profit violates open source.
"The Open Source Initiative approved two new licenses."
And if you don't use an "approved" license what happens? You don't get to use the OSI logo?
Person/Company A thinks they might someday patent some software (under any license). They know that they if they do, someone can read the patent at the USPTO and incorporate the patent into some OSI-patent-clause-contianing licensed (eg, AFL'd) software, immediately terminating A's license to any such software that he has been relying upon.
A, not being a fool, decides to never rely upon (ie, use) such software to begin with, leaving it for the very few philanthropists and many loosers who have no hope of ever patenting any software to use.