Re: Open Source Licensing

I am quoting the whole post made by Mr. Rosen. There is no way to trim it without losing the context. Pardon the long post.

On Wed, 27 Aug 2003, Lawrence E. Rosen <lrosen[_at_]rosenlaw.com> wrote:
>
> [Cross-posted to CNI-COPYRIGHT and license-discuss[_at_]opensource.org]
>
> Joseph Pietro Riolo wrote:
> > I can see how you meant "perpetual" to be....
> >
> > Still, that does not sit well with me. How can lay people
> > and judges know that you meant that way without seeing your
> > post in CNI-COPYRIGHT? Also, how many people who use your
> > license really understand your meaning of "perpetual"?
>
> Who really cares what I meant? I just drafted the contract; it is the
> parties to the contract who must have a clear understanding -- a meeting
> of the minds.

It is true that the parties have the responsibility to understand the meaning of terms. But, because you are the author of the license and own copyright in it, it only makes sense that you also have the partial responsibility to clarify any vague terms. The parties who want to clarify some terms in your license cannot revise your license without your permission and therefore, are at your mercy.

> I hope that parties contracting under the Open Software License (OSL,
> www.rosenlaw.com/osl2.0.html) really mean "perpetual" as "until the end
> of time." The fact that copyright law provides an escape mechanism to
> protect against unequal bargaining power at the beginning of a copyright
> term shouldn't prevent parties from saying "perpetual" when they
> honestly, sincerely, presently intend it to be forever.
>
> I am reminded of the "till death do us part" vows in marriage
> ceremonies. Are there any family law practitioners here who might
> compare the legal effects of those words to the perpetual language in
> software licenses?

The difference is that there is a law (known as divorce law) that allows one party to invalidate the marriage. The U.S. Copyright Law does not have any language that can invalidate the perpetual language in license.

> > Will it be better if you take out the word "perpetual" and
> > add another section on duration of license something like this:
> >
> > 16. Duration. This license shall be in force until
> > the expiration of copyright in original work or the
> > unequivocal and irrevocable dedication of the original
> > work to the public domain, whenever happens first. In
> > no way this license will be terminated any time before
> > then.
> >
> > That way, lay people and judges will understand that you
> > do not mean the license to be overreaching, beyond the
> > scope and term of copyright.
>
> I was pleased to discover, after I published OSL version 2, that it was
> a full page shorter than the GPL. ...

Well, you cannot beat the simplicity, terseness, and clarity in one dedication-to-the-public-domain sentence. :-)

> .... That fact alone increases the chances
> that licensors and licensees will actually read it and try to understand
> its implications and limitations. While your proposed language would
> indeed speak the truth, the cost of those words in terms of readability
> and public understanding is prohibitive. :-)
>
> Do the authors of proprietary software say such things in their
> licenses? Since the 35-year option-to-terminate rule (17 U.S.C. 203)
> doesn't even apply to a work made for hire, is it practical to worry
> about it in most software licenses? Suppose we said, "this license
> lasts until the copyright expires, and then you don't need a license at
> all." How would that help public understanding of the license?

Or, you can just remove the word "perpetual" from your license. After all, these software licenses do not last longer than 18 months, on average. That will reduce the length of your license by two words. :)

> But I'm still open to be convinced. Others are encouraged to chime in
> if they think a clearer Duration clause is needed in the Open Software
> License.

It is not my intention to convince you to change your license. Your current license is still not even one year old. It is still too early to change it again just a single person is irate with the word "perpetual".

> > Earlier in the same post, you wrote:
> >
> > > The law always trumps when it comes to issues of public
> > policy and it
> > > is unnecessary for a license to say otherwise. ...
> >
> > In light of the recent case between Harold L. Bowers and
> > Baystate Technologies, Inc., I have problem agreeing to your
> > assertion.
>
> Bowers v. Baystate proves once again that "the law," as divined by the
> courts, always trumps. Just ask Baystate how painful it was to pay
> damages! In that case, the court reaffirmed that federal copyright law
> does not necessarily preempt state contract law claims. In particular,
> the court held that a prohibition on reverse engineering in a
> shrink-wrap license agreement is enforceable. There's nothing new
> there. The court cites lots of precedent for that and the Supreme Court
> denied certiorari.
>
> Open source licenses, of course, unlike the proprietary license over
> which the parties fought in Bowers, have a different objective, to
> *guarantee freedom* rather than *impose restrictions* on the software.
> A restriction on reverse engineering is impossible in an open source
> license.

Here, we are entering the philosophical minefield called "freedom". Your license does not guarantee freedom. It only guarantees rights, which is not same as freedom. Your license forces people to behave good, or to be accurate, your license forces people to behave in the way that you want them to behave. Your license does not allow people to behave in any other ways. There is no free will in it and therefore, there is no freedom in it. This is not like the freedoms of speech and press, which are the emblems of the public domain.

> The OSL grants to licensees all the bundle of rights under copyright and
> all the bundle of rights under patent, including the unlimited right to
> use both the executable and source versions of the software and to
> create derivative works from it. There are only a few straightforward
> conditions imposed on licensees, for example to protect the integrity of
> the original author and to build a software commons through reciprocity
> (what is sometimes pejoratively called "virality").

If section 9 were not included, I would have disagreed with you because your license is not friendly to the public domain works. Happily, section 9 allows people to decline the license so that the copyrighted work will be under the U.S. Copyright Law that, it is ironic to say, is more friendly to the public domain works.

> Precisely because the OSL is an approved open source license, I want the
> OSL to be strictly enforced under state contract law. The Bowers case
> helps ensure that my license will be interpreted according to its own
> words rather than -- as with the GPL -- under the vague philosophy of
> the Copyright Act. To the extent that the OSL protects important policy
> interests of the open source community and guarantees software freedom,
> the license *should* prevail. Only where the OSL might contradict a
> public policy objective of the law, such as it would if I included a
> provision that waived the right to terminate the license thirty-five
> years later, should the law limit the right of parties to contract.
>
> /Larry Rosen
> General counsel, Open Source Initiative (www.opensource.org)

It is good to have the force of law behind your license for the betterment of open source community and so that I can decline license whenever I want to copy the public domain portions (that is, you cannot tell me that I have no right to decline your license as per section 9). However, not many licenses have a provision similar to section 9 in your license. This is where the case _Bowers v. Baystate_ is very bad for both copyright and public domain worlds.

Joseph Pietro Riolo
<riolo[_at_]voicenet.com>
http://www.boycottcopyright.com

Number of days left until 1-1-2019 when all knowledge of 1923 in the land of the U.S.A. will be freed from their copyright owners' prisons: 5,600

Public domain notice: I put all of my expressions in this post in the public domain. Received on Tue Sep 02 2003 - 19:15:04 GMT