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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."
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.
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.
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.