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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."
The external deployment clause is interesting to me. As I read it, if you use a modified OSL app on your website, you need to make your changes public. As I read the GPL, you don't need to make your changes public unless you distribute the binary.
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.
So now open-source licenses are trying to restrict our legal rights? I can't see any company adopting any software that uses these licenses if it does not allow them to exercises their legal rights to file lawsuits. It seems this clause is just a way to try and take away people's freedom.
GoatPigSheep, the 3 most important food groups
The AFL, unlike MIT and BSD, does not require that the copyright
be maintained in derivative works, but only in distributions of
the Original Work.
I agree. Why didn't he just work with the FSF on the GPL version 3?
The "Open Software License" (interesting name for a license) seems to be a copyleft license incompatible with the GPL. Sigh... Is it really smart for an OSI board member to add new incomptatible copyleft licenses to the mix and also ask for OSI certification. Hmmm...
There are some interesting things in there such as the patent thing, but is it really smart to mix up copyrights and patents in the same legal document?
The license seems a bit US centric which might put off non-americans.
So what license is the text of the AFL licensed under?
I don't know about other peoples' views, but I don't think that restricting people's freedom of action (ie, saying you can't sue for patents, software with this license, or all your software will be illegal) is what OSI is all about. Licenses like this lead to things like Microsoft EULAs -- it's only a matter of time.
Let's see if I have this right:
If I write some software package think "infringes" on a patent, and the patent owner sues me, the patent owner is never granted any rights by any of these liscenses. This sounds like a really innovative way to combat all the patent b.s. that's been going on. If enough important things were to adopt this liscense, it might just make the economic cost for filing such a patent higher than the benfit.
Example:
- Linux adopts one of these new liscenses.
- Software package XYZ adopts one of these liscenses and violates IBM's patent on determine bra cup size via direct measurement (US Patent 5,965,809).
- If IBM sues XYZ, they can never use linux.
Seems to have some interesting implications...Is my interpretion correct?
Life is too short to proofread.
Isn't Lawrence Rosen the lawyerdude who wrote in Linux Journal?
Heh, the license itself has a license:
At first glance, this license doesn't seem bad, and doesn't seem terribly different than the GPL in spirit. It does have a more "lawyerly" tone to it (for instance the section defining "You" in the license).
One glaring difference is the "External Deployment" clause, which is much clearer than the GPL on the subject. But personally, I'm not sure if I would want to limit the "use" of software in this way. I strongly believe that licenses should not even pretend to restrict your use of the software in any way. On the other hand, it closes off a way for people to circumvent the GPL by modifying the software and then deploying it as a service "at arm's length".
Another difference is the patent clause: "This license will self destruct in the presence of patent litigation." I actually think this is clever. I'd like to see more analysis of this clause.
But all in all, I don't see this license as being particularly obnoxious. What did I miss?
Maybe the GPL works for you, but its viral nature does not work for everyone.
Doesn't that mean no special requirements for using the program in a web page as opposed to a command-line app?
A license to copy and modify a program does not automatically confer the right to perform the program publicly.
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.
Not how you use it, but how you modify it. Modification, or preparation of derivative works, is normally the exclusive right of the copyright holder. So is public performance. GPL2 claimed "if you distribute binaries, you must distribute source code". GPL3 claims additionally: "if you modify the software and publicly perform it, you must distribute source code."
Will I retire or break 10K?
This new Open Source License is very aggressive, much more so than the GPL; but whereas the GPL is aggressive in terms of preserving users' freedom, the OSL is aggressive in terms of protecting OSI-certified software.
Basically, what they're doing is trying to prevent people from suing OSI-certified with this clause from patent-infringement lawsuits.
If a company uses OSL-licensed software, and they file a lawsuite against any OSI-certified license with that clause in it, then they automatically lose their license to use the OSL-licensed software. Rather clever. Basically, it creates an incentive for a company not to file a lawsuite against an OSI-certified license with that clause in it, if the software OSL'ed software they're using is important to them.
I propose one modification to this license, one which would allow it to protect any OSI-certified or OSS / FS license from patent-lawsuites; adjust the clause to say "if you file a patent lawsuite against software licensed under any OSI-certified, OSS, or FS (i.e., LGPL/GPL) license.
This is certainly not a Free Software license, and I'm sure that RMS will denounce it soon, even though it protect many OSS / FS projects from patent lawsuites.
Consider the implications of this. Lets say that by some act of God (or Satan), Stallman releases a new version of GCC under a modified GPL license with such a patent-lawsuite termination clause in it. Now lets say taht MS uses that new version of GCC as the core for its GUI-based compiler, which is "at a arms length" from the GCC program (i.e., calls it externally), and releases a product called MS GCC, for which they charge you for the MS GUI. Now lets say this was a major profit-maker for MS. And lets say they decide to sue an OSI / OSS / FS license for violating MS' patents. If they do that, they automatically lose the right to use that new GCC, so they can't sell their graphically MS GCC. In other words, it would create a pretty big motivation for them not to sue any OSI / OSS / FS software for patent-infringement.
I like that, because it offers some protection for us OSI / OSS / FS developers from patent-infringement law-suites. We can't afford to defend such things, and we certainly can't afford to be help them sue us with our own software (imagine a company suing us using OpenOffice to write up the legal documents; that'd be like when the English massacred the Chinese using Chinese-made Chinese-invented gunpowder).
On the other hand, this is exactly the same kind of thing which is outrageous about EULA's. MS could put the same kind of thing in any of their EULA's; i.e., if you sue MS, you're license to use MS Office terminates. Good luck suing them if you were only relying on their word processors to type up the legal documents!
However, that said, the same thing which is outrageous in a EULA is not so outrageous in an OSS / FS license, because we need to use whatever means we have to protect ourselves.
In short, we need to think about this kind of thing very carefully. By no means can you say that this type of clause is concerned with the user's freedom. Its concerned with protecting the developer from a lawsuite. So its a clear values choice: Ensuring Freedom (as the GPL does) versus protecting yourself and other OSI / OSS / FS developers. I'm not suggesting which one is best, but you should at least know that choosing this type of license over a freedom-ensuring license (like the GPL) necessarily reduces the amount of freedom.
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?
social sciences can never use experience to verify their statemen
My point is, as you can see from another reply somebody wrote, many people believe that the way the GPL and other licences are written, they can command people who use modified GPLd code in a modified program they distribute to place their modifications under the GPL and to publish the source.
This is untested and probably not true. They can get a court to command you to stop distributing the software with the GPLd code. They can get a court to command you to pay damages for the copies you did distribute. They might get a court to declare criminal infringement but I really doubt it due to the monetary requirement there.
As for damages, you had better have a registered coypright, because that lets you have statutory damages. If you don't have that you get actual damages which are monetary and they are probably zero since the author didn't lose any money.
But the point I am making is, in spite of the claims that some make, I don't think you can command them to release the source to their program. You might be able to do this in practice by saying, "If you release your changes under the GPL, I will drop my infringement lawsuit" but that has a subtle difference in how it works.
Has it been over a year since you last donated to the Electronic Frontier Foundation
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.
The GPL sets out how the user of the GPL would like the infringer to be treated, but until we have a court case where a court has ordered such compliance, we don't know. I welcome citations people may have.
No, the GPL does not set that out. The GPL sets out what one must do to comply; it says nothing about what the court is to do to an entity which is guilty of infringement (and indeed it can't, as such an entity may not have accepted the license at all). For some background on the enforcement process as it actually occurs, read Moglen's paper, Enforcing the GPL.
Clauses 4 and 5 of the GPL make it clear that what happens upon a breach of license is simple termination of that license, and the subsequent reversion to standard copyright law. If any person whose work is infringed requests specific performance (in particular, the release of an infringer's code) as remedy from a court, that will be their own decision -- and if and when the court declines to provide said remedy, that will be a test not of the GPL itself but only of the legal feasability of that particular remedy. It will most certainly not impact the ability to enforce the license through (say) obtaining a court order to halt any release or sale of infringing code, or findings of monetary damages, or any other alternate penalty.
Replying to this post indicates agreement with the following terms. All source code you have ever written (whether it includes this post or not) must be assigned to me.
Needless to say, I don't agree with said terms (not that it'd matter if I failed to make this explicit -- there's no valid contract, implied or otherwise, in my response; go look up the requirements for the same).
The GPL "infects" only code linked into the same executable program. This one infects any derivative work, and has no "mere aggregation" clause like the GPL does. It may not be OK to put any other software on the same CD-ROM as code licensed under the OSL, as the CD-ROM as a whole could be considered a derivative work. An OSL program will need to be kept rigidly isolated from other software to a far greater extent than a GPL program.
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.
Under the Berne Convention, everything is copyrighted. There is no path from there to the public domain except through expiry of the copyright. Read this month's Linux Journal.
-russ
Don't piss off The Angry Economist