On 14 Dec 1998, Ben Pfaff wrote: > "Robert Levin" <[EMAIL PROTECTED]> writes: > > In the event an intellectual property claim is made or appears likely > to be made with respect to the Software, you agree to permit IBM to > enable you to continue to use the Software, or to modify it, or replace > it with software that is at least functionally equivalent. If IBM > determines that none of these alternatives is reasonably available, you > agree, at IBM's request, upon notice to you, to discontinue further > distribution of the Software and to delete or destroy all copies of the > Software you possess. This is IBM's entire obligation to you regarding > any claim of infringement. > > I take it that this is the paragraph that is causing contention? I > don't see any other problems with the license. I'm not sure exactly > where this paragraph falls under the DFSG.
This is the source of the problem areas I saw. It allows IBM to decide whether the end user can continue to use the software in the event of a potential IP claim. As I read it IBM appears to be the sole arbiter of whether any acceptable alternatives (such as a rewritten section of code) exist. If they don't, in IBM's view, it can unilaterally insist that the user discontinue use and distribution of the software. And the paragraph appears to allow IBM control over what modifications are made to void the IP claim. The 'at least functionally equivalent' phrase is the least objectionable bit of the paragraph, in that it at least leaves the users an avenue to contest having the software swapped out from under them if the replacement software is not really of equivalent function. But IBM need merely determine that "none of these alternatives is reasonably available" to invoke license closure. It's possible the clause could be improved by changing: > it with software that is at least functionally equivalent. If IBM > determines that none of these alternatives is reasonably available, you to > it with software that is at least functionally equivalent. If IBM > makes a reasonable determination that none of these alternatives is > available, you That phrasing would probably put the onus on IBM to demonstrate that its determination is reasonable, instead of merely allowing it to make the determination in vacuo. I'm not a lawyer, mind, so take my comments with that caveat. Anyway, yes, this paragraph contains all the problems I spotted. But I am not completely familiar with the application of the DFSG, so I thought it would be a good idea to try to get some input from your side of the fence. If anyone spots any other problem areas from within their own context, please, point them out. Thanks, Rob Levin
