Jeremy Hankins wrote:
> Here's the draft summary of the OSL2.0 I promised. Comments
> requested. Specifically:
>
> Regarding the patent clause: Sam Hartman, you & Anders Torger (the
> upstream licensor) were the only two I saw while going back over the
> thread that felt it wasn't a problem. Is my characterization of that
> issue fair?
>
> The bigger issue, though, is that I didn't provide a DFSG section for
> the first problem. The closest the DFSG comes to prohibiting use
> restrictions is #6 ("No Discrimination Against Fields of Endeavor"), but
> I'm uncomfortable using that for this issue -- is "deploying software
> without providing source" a field of endeavor)?. If "a specific field
> of endeavor" is intended that broadly, it should be reworded, IMHO.
>
> There is no obvious prohibition against forced distribution, either.
> The closest we have to that are the Desert island test & the Dissident
> test -- but I don't see how those can be applied here. My understanding
> of those tests is that they apply to cases of the form "in order to do
> X, you must do Y." If Y runs afoul of the test, it is a significant
> restriction on X. But what's the X in this case?
>
> Don't misunderstand, I do think that the restriction is non-free (though
> I'm interested in arguments to the contrary -- I'm not entirely
> certain).
Lemme think about this.
"The term "External Deployment" means the use or
distribution of the Original Work or Derivative Works in any way such
that the Original Work or Derivative Works may be used by anyone
other than You,"
Essentially, this means that if you allow someone to use the software, you
must give them source (or an offer of source). This is definitely a usage
restriction, which may not even be legal to make; and we generally frown on
usage restrictions. It makes letting someone *use* the software subject to
the same rules as *giving a copy* to them. If these were rules for giving
a copy to someone, they would be definitely OK.
I guess the DFSG doesn't explicitly prohibit use restrictions. I think it
probably should.
The general opinion I've heard is that a free license should not purport to
restrict anything which would be permitted without a license under ordinary
law. (Although that is *not* enshrined in the DFSG.) Usage is one of
those things. If a license does restrict such a thing, it takes on
elements of a contract, which is not desirable and involves all kinds of
different legal areas. This license falls into that category. Which is
probably why it needs the "Acceptance and Termination" part.
However, I'm not really sure whether it does violate the DFSG as they
currently exist -- are usage restrictions of this sort acceptable?
> But I don't see a way to ground it in the DFSG. Perhaps we
> should think about language to add to the DFSG for this kind of case?
> If so, we should decide whether this is best understood as a use
> restriction or forced distribution, so that we know what to add.
I think it's a use restriction.
> --- Begin DRAFT Debian-legal summary of the OSL ---
<snip>
> - Item #6 "Attribution Rights" requires retention of any "Attribution
> Notice," even if false. There are no restrictions on what may be
> considered an attribution notice, so there are no clear limits on what
> materials must be retained. This restricts modification (DFSG #3).
It's probably worth telling the license author to fix this, since it's
likely just a misdrafting.
> In addition to the above it is likely that item #10 "Termination for
> Patent Action" is contrary to the DFSG. Item #10 terminates the license
> if you are involved in a suit with a licensor over "a patent applicable
> to software", or against anyone else over a patent relating to the Work.
> Unfortunately, as of the time of this writing this issue has not been
> settled conclusively.
I think we're clear that this is non-free.
The extreme broadness of the phrase "a patent applicable to software" is the
major problem here. This discriminates against people in the field of
legitimate patent licensing; if the patent is "applicable" to software,
this termination could apply, even if the patent holder doesn't actually
*apply* it to software. Similarly the termination could apply for a patent
"applicable" to the Work, even if the patent holder had no intention of
actually applying it to the Work or to software at all.
It's other similar, but better-written, patent clauses that we're not sure
about. :-)
--
There are none so blind as those who will not see.
