Subject: For approval: MXM Public license
From: OSI review <osi-review@piana.eu>
Date: Wed, 08 Apr 2009 15:23:50 +0200
Wed, 08 Apr 2009 15:23:50 +0200
Dear all,

I am submitting this license on behalf of Mr. Leonardo Chiariglione, the
convenor of the MPEG Working Group (ISO/IEC JTC1/SC29/WG11). MPEG is
currently working on the ISO/IEC 23006 MPEG eXtensible Middleware (MXM)
standard, which has reached the Committee Draft status, and this license
is intended to cover the reference implementation of said upcoming standard.

** Rationale for submission

I and Mr. Chiariglione, as well as other people familiar with the
matter, have been discussing about the possibility to make the reference
implementation that would accompany the above mentioned upcoming
International Standard under a Free/Open Source Software that could meet
the concerns of the technology contributors' community (mainly, the
multimedia software and content industry). We have come to the
conclusion that the Mozilla Public License was the closest to meet the
constraints, but for the patent deals into it. So we have worked to
modify the MPL into what we called the MXM License, which has gathered
interim consensus from the Working Group.

The ISO/IEC Working Group have expressed the desire to receive the
approval from OSI, and Mr. Chiariglione has asked me to volunteer for
going through the process. Therefore I am submitting the license here,
but the steward of the license is going to be Mr. Chiariglione himself,
who receives a carbon copy of this email.

As you will notice, we have removed some of the patent conditions that
existed in the MPL. This is because none of the contributors would have
accepted to encapsulate their patents in a FOSS license without the
ability to ask for a license separately from the copyright. This is a
basic tenet that is enshrined in the so-called ISO/IEC Directives for
the development of International Standards. Some of you might know about
my public stance against software patents and my approval to some of the
licenses which impose implied licensing to or patent retaliation against
all who distribute FOSS software while relying on patent protection.
However, the sad truth is that if we did not offer a patent-agnostic
license we would have made all efforts to have an open source reference
implementation moot.

I have insisted and obtained, however, that an explicit patent covenant
be inserted, to the effect to exclude from any patent concern all who
don't distribute the compiled version of the software and to those who
compile it only for internal purposes without direct commercial
exploitation. This covenant being irrevocable, unconditioned and
detached from the copyright licensing conditions. I have asked myself if
this could work and if it complied with the OSI definition. My  final
conclusion is that if the BSD family is considered compliant, so shall
be the MXM, as it does not condition the copyright grant to the
obtaining of the patents, just as the BSD licenses don't deal with them.
And insofar an implementer is confident that the part of the code it
uses if free from the patented area, or it decided to later challenge
the patent in case an infringement litigation is threatened, the license
works just fine.

I also have added some modification to the "litigation" section, where I
introduced the concept of RAND patent pool. At least.

** Closest OSI-Approved license: MPL

See above for a discussion about the main differences with the MPL


** Proliferation category: Special purpose licenses

Please be informed that this license is conceived and intended to be
used only to cover a specific use, possibly only extended to similar
standards and to serve an example to ISO/IEC that a reference
implementation could be made open source.

Not for general use


** Status of the license and my personal

Despite the license being unofficially approved, we are most keen to
receive any feedback from the reviewers and will gladly accept any
suggestion or improvement, as long as possible. I will humbly take any
blame for the legal mischief done and will work to sort things out.

I am a lawyer qualified in Italy and before the European Court of
Justice. I am legal counsel to the Free Software Foundation Europe, as
well as to some Free/Open Source Software projects, and I am an
outspoken Free Software and Digital Liberties advocate, but I am here
acting independently from any of my appointments and solely upon
instructions from my Client Mr. Chiariglione. None of my words shall be
attributed to any other clients or entities to which I am publicly
associated.

I attach hereto a plaintext version of the license.

Thank you for your attention.

Carlo Piana

========================
Avv. Carlo Piana

Piazza Castello 24 - 20121 Milan - Italy
phone +39 02 72 00000 3
fax +39 02 86 90 901
http://law.piana.eu (firm)
http://www.piana.eu (blog)
email carlo@piana.eu

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INTERNATIONAL ORGANISATION FOR STANDARDISATION
ORGANISATION INTERNATIONALE DE NORMALISATION
ISO/IEC JTC 1/SC 29/WG 11
CODING OF MOVING PICTURES AND AUDIO

ISO/IEC JTC 1/SC 29/WG 11 N10167
Busan, KR – October 2008

Source:
Systems and Requirements
Title:
Proposal for MXM Public License Version 1.0
Status
Proposal


Proposal for MXM Public License Version 1.0

1. Definitions.

1.0.1. "Commercial Use" 
means distribution or otherwise making the Covered Code available to a third party.


1.1. "Contributor" 
means each entity that creates or contributes to the creation of Modifications. 

1.2. "Contributor Version" 
means the combination of the Original Code, prior Modifications used by a Contributor,
and the Modifications made by that particular Contributor. 

1.3. "Covered Code" 
means the Original Code or Modifications or the combination of the Original Code and
Modifications, in each case including portions thereof. 

1.4. "Electronic Distribution Mechanism" 
means a mechanism generally accepted in the software development community for the electronic
transfer of data. 

1.5. "Executable" 
means Covered Code in any form other than Source Code. 

1.6. "Initial Developer" 
means the individual or entity identified as the Initial Developer in the Source Code
notice required by Exhibit A. 

1.7. "Larger Work" 
means a work which combines Covered Code or portions thereof with code not governed
by the terms of this License. 

1.8. "License" 
means this document. 

1.8.1. "Licensable" 
means having the right to grant, to the maximum extent possible, whether at the time
of the initial grant or subsequently acquired, any and all of the rights conveyed herein.


1.9. "Modifications" 
means any addition to or deletion from the substance or structure of either the Original
Code or any previous Modifications. When Covered Code is released as a series of files,
a Modification is: 

a.Any addition to or deletion from the contents of a file containing Original Code or
previous Modifications. 

b.Any new file that contains any part of the Original Code or previous Modifications.


1.10.	"MPEG"
means the Moving Picture Experts Group (ISO/IEC JTC1/SC29/WG11)

1.11	"Original Code" 
means Source Code of computer software code which is described in the Source Code notice
required by Exhibit A as Original Code, and which, at the time of its release under
this License is not already Covered Code governed by this License. 

1.11.1. "Patent Claims" 
means any patent claim(s), now owned or hereafter acquired, including without limitation,
method, process, and apparatus claims, in any patent. 

1.12. "Source Code" 
means the preferred form of the Covered Code for making modifications to it, including
all modules it contains, plus any associated interface definition files, scripts used
to control compilation and installation of an Executable, or source code differential
comparisons against either the Original Code or another well known, available Covered
Code of the Contributor's choice. The Source Code can be in a compressed or archival
form, provided the appropriate decompression or de-archiving software is widely available
for no charge. 

1.13. "You" (or "Your") 
means an individual or a legal entity exercising rights under, and complying with all
of the terms of, this License or a future version of this License issued under Section
6.1. For legal entities, "You" includes any entity which controls, is controlled by,
or is under common control with You. For purposes of this definition, "control" means
(a) the power, direct or indirect, to cause the direction or management of such entity,
whether by contract or otherwise, or (b) ownership of more than fifty percent (50%)
of the outstanding shares or beneficial ownership of such entity. 

1.14 “RAND Patent Pool”
Reasonable And Non Discriminatory clauses as requested by ISO/IEC when submitting a
standard for approval and which have been chartered to a patent pool managed by a licensing
company.


2. Source Code License.

2.1. General.
This software has been developed as a reference implementation of ISO/IEC 23006.
The Initial Developer and Contributors hereby irrevocably covenant (“Patent Covenant”)
not to assert their Patent Claims over the Covered Code, regardless whether You have
obtained a proper license on said patents and as long as the other provisions of this
license are respected,  limited to any use of this software in Source Code, excluding
any distribution as Executable or execution through runtime, debuggers or emulators.
Patent Covenant is however extended to the compilation and use of a compiled version
(as Executable) of this software for study and evaluation purposes only, with the exclusion
of distribution of compiled code or any other commercial exploitation. By way of clarification,
this covenant does not limit in any way Your freedom to distribute the Covered Code
according to the remainder of the provisions of this license.

2.2. The Initial Developer Grant.
The Initial Developer hereby grants You a world-wide, royalty-free, non-exclusive license,
subject to intellectual property claims by any party: 
a.under intellectual property rights (other than patent or trademark) Licensable by
Initial Developer to use, reproduce, modify, display, perform, sublicense and distribute
the Original Code (or portions thereof) with or without Modifications, and/or as part
of a Larger Work. 
b.the licenses granted in this Section 2.2 (a) are effective on the date Initial Developer
first distributes Original Code under the terms of this License. 

2.3. Contributor Grant.
Each Contributor hereby grants You a world-wide, royalty-free, non-exclusive license,
subject to intellectual property claims by any party:

a.under intellectual property rights (other than patent or trademark) Licensable by
Contributor, to use, reproduce, modify, display, perform, sublicense and distribute
the Modifications created by such Contributor (or portions thereof) either on an unmodified
basis, with other Modifications, as Covered Code and/or as part of a Larger Work;  

b.the licenses granted in Sections 2.3 (a) are effective on the date Contributor first
makes Commercial Use of the Covered Code. 


3. Distribution Obligations.

3.1. Application of License.
The Modifications which You create or to which You contribute are governed by the terms
of this License. The Source Code version of Covered Code may be distributed only under
the terms of this License or a future version of this License released under Section
6.1, and You must include a copy of this License with every copy of the Source Code
You distribute. You may not offer or impose any terms on any Source Code version that
alters or restricts the applicable version of this License or the recipients' rights
hereunder. However, You may include an additional document offering the additional rights
described in Section 3.5. 

3.2. Availability of Source Code.
Any Modification which You create or to which You contribute must be made available
in Source Code form under the terms of this License either on the same media as an Executable
version or via an accepted Electronic Distribution Mechanism to anyone to whom you made
an Executable version available; and if made available via Electronic Distribution Mechanism,
must remain available for at least twelve (12) months after the date it initially became
available, or at least six (6) months after a subsequent version of that particular
Modification has been made available to such recipients. You are responsible for ensuring
that the Source Code version remains available even if the Electronic Distribution Mechanism
is maintained by a third party. 

3.3. Description of Modifications.
You must cause all Covered Code to which You contribute to contain a file documenting
the changes You made to create that Covered Code and the date of any change. You must
include a prominent statement that the Modification is derived, directly or indirectly,
from Original Code provided by the Initial Developer and including the name of the Initial
Developer in (a) the Source Code, and (b) in any notice in an Executable version or
related documentation in which You describe the origin or ownership of the Covered Code.


3.4. Intellectual Property Matters

(a) General information
Annex XYZ of ISO/IEC 23006 provides a list of parties who have agreed to license their
patents if they are necessarily infringed by this software module.

(b) Initial Developer’s Claims
A text file with the Source Code distribution titled "LEGAL" describes Initial Developer’s
claim and details that enable a recipient to know whom to contact. 

(c) Contributor and Third Party Claims
The LEGAL file also describes the claim and the party making the claim in sufficient
detail that a recipient will know whom to contact in case Initial Developer and Contributor
have knowledge that a license under a third party's intellectual property rights is
required to exercise the rights granted by Initial Developer under Sections 2.2 or 2.3.
If Contributor has knowledge that a license under a third party's intellectual property
rights is required to exercise the rights granted by such Contributor under Sections
 2.2 or 2.3, Contributor must include a LEGAL file which describes the claim and the
party making the claim in sufficient detail that a recipient will know whom to contact.
If Contributor obtains such knowledge after the Modification is made available as described
in Section 3.2, Contributor shall promptly modify the LEGAL file in all copies Contributor
makes available thereafter and shall take other steps (such as notifying appropriate
mailing lists or newsgroups) reasonably calculated to inform those who received the
Covered Code that new knowledge has been obtained. 

(d) Contributor APIs
If Contributor's Modifications include an application programming interface and Contributor
has knowledge of patent licenses which are reasonably necessary to implement that API,
Contributor must also include this information in the legal file. 

(e) Representations.
Contributor represents that, except as disclosed pursuant to Section 3.4 (a) above,
Contributor believes that Contributor's Modifications are Contributor's original creation(s)
and/or Contributor has sufficient rights to grant the rights conveyed by this License.


3.5. Required Notices.
You must duplicate the notice in Exhibit A in each file of the Source Code. If it is
not possible to put such notice in a particular Source Code file due to its structure,
then You must include such notice in a location (such as a relevant directory) where
a user would be likely to look for such a notice. If You created one or more Modification(s)
You may add your name as a Contributor to the notice described in Exhibit A. You must
also duplicate this License in any documentation for the Source Code where You describe
recipients' rights or ownership rights relating to Covered Code. You may choose to offer,
and to charge a fee for, warranty, support, indemnity or liability obligations to one
or more recipients of Covered Code. However, You may do so only on Your own behalf,
and not on behalf of the Initial Developer or any Contributor. You must make it absolutely
clear than any such warranty, support, indemnity or liability obligation is offered
by You alone, and You hereby agree to indemnify the Initial Developer and every Contributor
for any liability incurred by the Initial Developer or such Contributor as a result
of warranty, support, indemnity or liability terms You offer. 

3.6. Distribution of Executable Versions.
You may distribute Covered Code in Executable form only if the requirements of Sections
3.1, 3.2, 3.3, 3.4 and 3.5 have been met for that Covered Code, and if You include a
notice stating that the Source Code version of the Covered Code is available under the
terms of this License, including a description of how and where You have fulfilled the
obligations of Section 3.2. The notice must be conspicuously included in any notice
in an Executable version, related documentation or collateral in which You describe
recipients' rights relating to the Covered Code. You may distribute the Executable version
of Covered Code or ownership rights under a license of Your choice, which may contain
terms different from this License, provided that You are in compliance with the terms
of this License and that the license for the Executable version does not attempt to
limit or alter the recipient's rights in the Source Code version from the rights set
forth in this License. If You distribute the Executable version under a different license
You must make it absolutely clear that any terms which differ from this License are
offered by You alone, not by the Initial Developer or any Contributor. You hereby agree
to indemnify the Initial Developer and every Contributor for any liability incurred
by the Initial Developer or such Contributor as a result of any such terms You offer.


3.7. Larger Works.
You may create a Larger Work by combining Covered Code with other code not governed
by the terms of this License and distribute the Larger Work as a single product. In
such a case, You must make sure the requirements of this License are fulfilled for the
Covered Code. 


4. Inability to Comply Due to Statute or Regulation.
If it is impossible for You to comply with any of the terms of this License with respect
to some or all of the Covered Code due to statute, judicial order, or regulation then
You must: (a) comply with the terms of this License to the maximum extent possible;
and (b) describe the limitations and the code they affect. Such description must be
included in the legal file described in Section 3.4 and must be included with all distributions
of the Source Code. Except to the extent prohibited by statute or regulation, such description
must be sufficiently detailed for a recipient of ordinary skill to be able to understand
it. 


5. Application of this License.
This License applies to code to which the Initial Developer has attached the notice
in Exhibit A and to related Covered Code. 


6. Versions of the License.

6.1. New Versions
MPEG may publish revised and/or new versions of the License from time to time. Each
version will be given a distinguishing version number. 

6.2. Effect of New Versions
Once Covered Code has been published under a particular version of the License, You
may always continue to use it under the terms of that version. You may also choose to
use such Covered Code under the terms of any subsequent version of the License published
by MPEG. No one other than MPEG has the right to modify the terms applicable to Covered
Code created under this License. 

6.3. Derivative Works
This license is derived from, but has many differences from, the Mozilla Public License
version 1.1. If You create or use a modified version of this License (which you may
only do in order to apply it to code which is not already Covered Code governed by this
License), You must (a) rename Your license so that the phrases "Mozilla", "MOZILLAPL",
"MOZPL", "Netscape", "MPL", "NPL", "MPEG", "MXM Public License",  "MPEG MXM" or any
confusingly similar phrase do not appear in your license (except to note that your license
differs from this License) and (b) otherwise make it clear that Your version of the
license contains terms which differ from the MXM Public License, Mozilla Public License
and Netscape Public License. (Filling in the name of the Initial Developer, Original
Code or Contributor in the notice described in Exhibit A shall not of themselves be
deemed to be modifications of this License.) 

7. Disclaimer of warranty
Covered code is provided under this license on an "as is" basis, without warranty of
any kind, either expressed or implied, including, without limitation, warranties that
the covered code is free of defects, merchantable, fit for a particular purpose or non-infringing.
The entire risk as to the quality and performance of the covered code is with you. Should
any covered code prove defective in any respect, you (not the initial developer or any
other contributor) assume the cost of any necessary servicing, repair or correction.
This disclaimer of warranty constitutes an essential part of this license. No use of
any covered code is authorized hereunder except under this disclaimer. 


8. Termination

8.1. This License and the rights granted hereunder will terminate automatically if You
fail to comply with terms herein and fail to cure such breach within 30 days of becoming
aware of the breach. All sublicenses to the Covered Code which are properly granted
shall survive any termination of this License. Provisions which, by their nature, must
remain in effect beyond the termination of this License shall survive. 

8.2. If You initiate litigation by asserting a patent infringement claim (excluding
declaratory judgment actions and excluding non-frivolous litigation on any actions based
on the patents which have been duly conferred in a RAND Patent Pool and made available
under that RAND Patent Pool licensing scheme) against the Initial Developer or a Contributor
(the Initial Developer or Contributor against whom You file such action is referred
to as "Participant") alleging that: 
a.such Participant's Contributor Version directly or indirectly infringes any patent,
then any and all rights granted by such Participant to You under Sections 2.2 and/or
2.3 of this License shall, upon 60 days notice from Participant terminate prospectively,
unless if within 60 days after receipt of notice You either: (i) confer all such patents
to a RAND Patent Pool; or (ii) withdraw Your litigation claim with respect to the Contributor
Version against such Participant. If within 60 days of notice the patents upon which
the litigation claim is based, or the litigation claim is not withdrawn, the rights
granted by Participant to You under Sections 2.21 and/or 2.32 automatically terminate
at the expiration of the 60 day notice period specified above. 

8.3. If You assert a patent infringement claim against Participant alleging that such
Participant's Contributor Version directly or indirectly infringes any patent where
such claim is resolved (such as by license or settlement) prior to the initiation of
patent infringement litigation, then the reasonable value of the licenses granted by
such Participant under Sections 2.2 or 2.3 shall be taken into account in determining
the amount or value of any payment or license. 

8.4. In the event of termination under Sections 8.1 or 8.2 above, all end user license
agreements (excluding distributors and resellers) which have been validly granted by
You or any distributor hereunder prior to termination shall survive termination. 


9. Limitation of liability
Under no circumstances and under no legal theory, whether tort (including negligence),
contract, or otherwise, shall you, the initial developer, any other contributor, or
any distributor of covered code, or any supplier of any of such parties, be liable to
any person for any indirect, special, incidental, or consequential damages of any character
including, without limitation, damages for loss of goodwill, work stoppage, computer
failure or malfunction, or any and all other commercial damages or losses, even if such
party shall have been informed of the possibility of such damages. This limitation of
liability shall not apply to liability for death or personal injury resulting from such
party's negligence to the extent applicable law prohibits such limitation. Some jurisdictions
do not allow the exclusion or limitation of incidental or consequential damages, so
this exclusion and limitation may not apply to you. 


10. Miscellaneous
This License represents the complete agreement concerning subject matter hereof. If
any provision of this License is held to be unenforceable, such provision shall be reformed
only to the extent necessary to make it enforceable. This License shall be governed
by California law provisions (except to the extent applicable law, if any, provides
otherwise), excluding its conflict-of-law provisions. With respect to disputes in which
at least one party is a citizen of, or an entity chartered or registered to do business
in the United States of America, any litigation relating to this License shall be subject
to the jurisdiction of the Federal Courts of the Northern District of California, with
venue lying in Santa Clara County, California, with the losing party responsible for
costs, including without limitation, court costs and reasonable attorneys' fees and
expenses. The application of the United Nations Convention on Contracts for the International
Sale of Goods is expressly excluded. Any law or regulation which provides that the language
of a contract shall be construed against the drafter shall not apply to this License.



11. Responsibility for claims
As between Initial Developer and the Contributors, each party is responsible for claims
and damages arising, directly or indirectly, out of its utilization of rights under
this License and You agree to work with Initial Developer and Contributors to distribute
such responsibility on an equitable basis. Nothing herein is intended or shall be deemed
to constitute any admission of liability. 


12. Multiple-licensed code
Initial Developer may designate portions of the Covered Code as "Multiple-Licensed".
"Multiple-Licensed" means that the Initial Developer permits you to utilize portions
of the Covered Code under Your choice of the MPL or the alternative licenses, if any,
specified by the Initial Developer in the file described in 
Exhibit A. 

Exhibit A - MXM Public License.

"The contents of this file are subject to the MXM Public License
Version 1.1 (the "License"); you may not use this file except in
compliance with the License. You may obtain a copy of the License at
http://mpeg.chiariglione.org/MXM/

Software distributed under the License is distributed on an "AS IS"
basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the
License for the specific language governing rights and limitations
under the License.

The Original Code is                                       .

The Initial Developer of the Original Code is                         .
Portions created by                        are Copyright (C)       
                       . All Rights Reserved.

Contributor(s):                                       .

Alternatively, the contents of this file may be used under the terms
of the       license (the  "[   ] License"), in which case the
provisions of [      ] License are applicable instead of those
above. If you wish to allow use of your version of this file only
under the terms of the [    ] License and not to allow others to use
your version of this file under the MXM Public Licence, indicate your decision by
deleting the provisions above and replace them with the notice and
other provisions required by the [   ] License. If you do not delete
the provisions above, a recipient may use your version of this file
under either the MPL or the [   ] License."

NOTE: The text of this Exhibit A may differ slightly from the text of the notices in
the Source Code files of the Original Code. You should use the text of this Exhibit
A rather than the text found in the Original Code Source Code for Your Modifications.