Subject: RE: Followup on Exhibit B licences
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Wed, 7 Mar 2007 07:19:17 -0800

> Quoting Lawrence Rosen (lrosen@rosenlaw.com):
> > An open source license cannot (should not!) contain a trademark license.
> 
> A possible compare-and-contrast item:  A gentleman named Larry Ozeran
> wrote to me, this evening, to ask my view of the Medsphere Public
> Licence (http://medsphere.org/license/MSPL.html) -- which task I
> approached with no enthusiasm, because I expected it would be more of
> the same.  It wasn't.

I appreciate Larry Ozeran's email. I was speaking generally on the matter of
trademark licenses, and did not criticize or even mention the Medsphere
Public License. Has it been submitted for approval?

Requiring the use of a unique logo or message that is NOT a trademark to
indicate attribution is not a trademark license. I assume the "Powered by
Medsphere" logo is not serving as a trademark because, if it were, its
permitted use on uncontrolled goods would risk its trademark status. I'm
also not sure what could be done, given this license, to protect Medsphere's
reputation if someone used the "Powered by Medsphere" logo on crappy
software derived from Medsphere's application.

/Larry Rosen


> -----Original Message-----
> From: Rick Moen [mailto:rick@linuxmafia.com]
> Sent: Wednesday, March 07, 2007 1:49 AM
> To: license-discuss@opensource.org
> Subject: Re: Followup on Exhibit B licences
> 
> Quoting Lawrence Rosen (lrosen@rosenlaw.com):
> 
> > An open source license cannot (should not!) contain a trademark license.
> 
> A possible compare-and-contrast item:  A gentleman named Larry Ozeran
> wrote to me, this evening, to ask my view of the Medsphere Public
> Licence (http://medsphere.org/license/MSPL.html) -- which task I
> approached with no enthusiasm, because I expected it would be more of
> the same.  It wasn't.
> 
> Quoting Larry Ozeran (lozeran@clinicalinformatics.com):
> 
> [...]
> 
> > My question to you: is the "MSPL" license (apparently a form of
> > badgeware) which they are requiring a valid open source license? Is
> > there such a thing as "valid" or is the better distinction OSI
> > compliant license vs. not?
> 
> [...]
> 
> I find myself pleasantly surprised and impressed by Medsphere Public
> License (MSPL) Version 1.0.  Having encountered a number of other MPL
> 1.1 + "Exhibit B" licences, I expected the same sort of meddlesome
> overreaching exemplified by the originator of such licences, SugarCRM,
> Inc.  Medsphere Systems Corporation didn't do that.
> 
> MPSL's Exhibit B is a reasonable, minimal, well-worded provision
> intended to ensure that the original developer (in this case,
> Medsphere) continues to have publicly verifiable author credit that can
> be read at runtime by all users, even on derivative works deployed
> ASP-style with no distribution of source code to anyone.  The ASP
> market is a challenging one for would-be publishers of open source code
> in this regard, in that -- if using a conventional copyleft or
> simple-permissive open-source licence -- competitors can fully reuse
> your works in their derivative work without either giving back their
> changes nor leaving signs of your authorship visible to users.
> 
> Other Exhibit B sections I've seen very definitely violate OSD#10
> (the requirement for technological neutrality).  MSPL carefully avoids
> that pitfall by saying the splash-screen credit must appear on the
> graphical user interface screen _if any_.
> 
> Again, in sharp contrast to other Exhibit B licences, MSPL doesn't
> require credit on "every user interface screen", but rather speaks of a
> splash screen (only) displayed "for sufficient duration to give
> reasonable notice to the user of the identity of the Initial Developer"
> -- with escapes to cover technology variations (e.g., no graphical
> display) or if for various other reasons the requirement is
> inapplicable.
> 
> Likewise as a very pleasant surprise, the MSPL's Exhibit B is worded in
> a templated fashion, so that the licence can be reused for other works.
> 
> Last, the trademark clause, so excessive and problematic in other
> Exhibit B examples, is perfectly reasonable:  Licensee acknowledges
> licensor's trademark title, and says that using them requires either
> owner's permission _or_ any other entitlement created by law or by the
> terms of the licence.
> 
> I find all of the above refreshingly reasonable.  The question you
> asked is:  In my opinion, is it open source?
> 
> At the risk of being guilty of quibbling, a two-part answer:  (1)
> Traditionally, restrictions on usage are seen as being inherently not
> permissible in open source.  All restrictions.  This is seen as being
> implied in a number of the Open Source Definition's provisions (e.g., #3
> on derivative works, #6 on fields of endeavour, and #10 on technological
> neutrality), even though it hasn't been called out as an explicit
> prohibition in stark terms.  Strictly speaking, the requirement of a
> splash screen in the graphical disply _if any_ is a restriction on use.
> 
> (2)  However, that restriction is of such a fleeting, minimal, and
> reasonable nature that I think it should not raise objection.
> 
> The above is based on about an hour (only) of study and comparison --
> and I have certainly made mistakes in such matters before.  However, I
> am reasonably confident in my view.
> 
> Fair disclosure:  I was once employed at a firm then headed by Medsphere
> former CEO and current Board member Larry Augustin, and knew him
> personally for many years before that.  I esteem Mr. Augustin highly,
> but hope and believe that my view of him personally has not coloured my
> assessment of his firm's licence.
> 
> --
> Cheers,                                      "Reality is not optional."
> Rick Moen                                             -- Thomas Sowell
> rick@linuxmafia.com