Subject: RE: OSL for libraries (was Re: Submitted for Approval: OSL 3.0 and AFL 3.0)
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Mon, 12 Sep 2005 10:26:36 -0700

Gordon Kindlmann wrote:
> I believe I'm now grasping the simplicity of OSL 3.0, which 
> deftly leverages the existing legal framework for collective 
> and derived works.

Thank you. I tried.

> My concern, again from the standpoint of applying OSL 3.0 to 
> a library, is that the spirit of things like LGPL (and the 
> exception notices that have evolved on top of it) is that at 
> least from a programmer's standpoint, there is a meaningful 
> and fundamental difference between the distribution of a 
> modification of a library, and the distribution of an 
> executable which links against the unmodified library.  If my 
> library is under OSL 3.0, both a modified version of the 
> library, and a copy of the library as contained in an 
> executable (aka collective work), are also to be licensed 
> under OSL 3.0.  Correct?

Correct. 

You licensed your library under OSL 3.0 and did not authorize anyone to
change that fact for copies, however they are combined with other works. 

You also authorized derivative works of your library and require them to be
distributed under OSL 3.0.

> So, when you say that "a licensor can waive any provision of 
> his license with respect to his own original works", is there 
> any precedent for limiting that waiver to certain kinds of 
> copies or derivatives?

OSL 3.0 imposes no such limits. There are many dual licensing business
models. Be creative. You can separately license (or waive license
conditions) for any of your own Original Works. You can be selective in
granting waivers or alternative licenses, and you can charge fees for
waivers or alternative licenses.

<snip>
> When part of a collective work, 
> and when in binary form, I would want the copy of my library 
> to be licensed under, for example, *AFL* 3.0 instead of OSL 
> 3.0.  Is this practical within the context of OSL/AFL 3.0, or 
> possible at all?
<and snip some more>
> I would not want, for example, someone to contrive a 
> collective work around a copy of the
> *source* of my library, using the non-reciprocal license I 
> permit for collective works, lift the library out of the 
> collective work, and then modify and distribute it, again 
> under the non-reciprocal license.

You can't license binary-only under AFL 3.0. The same source code
requirements apply in that license as in OSL 3.0. AFL 3.0, however,
authorizes your licensees to distribute binary-only under a license of their
choice.

Your Original Work does not lose its character or its license merely because
it is copied into a collective work. Any downstream sublicensees are bound
by OSL 3.0 as applied to your contribution to that collective work. They
cannot "lift the library out of the collective work, and then modify and
distribute it," except under OSL 3.0. Here's what I'm relying on:

17 U.S.C. 103(b): The copyright in a compilation or derivative work extends
only to the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work, and does
not imply any exclusive right in the preexisting material. The copyright in
such work is independent of, and does not affect or enlarge the scope,
duration, ownership, or subsistence of, any copyright protection in the
preexisting material.

17 U.S.C. 201(c): Contributions to collective works. Copyright in each
separate contribution to a collective work is distinct from copyright in the
collective work as a whole, and vests initially in the author of the
contribution. In the absence of an express transfer of the copyright or of
any rights under it, the owner of copyright in the collective work is
presumed to have acquired only the privilege of reproducing and distributing
the contribution as part of that particular collective work, any revision of
that collective work, and any later collective work in the same series.

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  *  fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and 
   Intellectual Property Law" (Prentice Hall 2004) 
   [Available also at www.rosenlaw.com/oslbook.htm]

> -----Original Message-----
> From: Gordon Kindlmann [mailto:gk@bwh.harvard.edu] 
> Sent: Monday, September 12, 2005 9:35 AM
> To: lrosen@rosenlaw.com; license-discuss@opensource.org
> Subject: Re: OSL for libraries (was Re: Submitted for 
> Approval: OSL 3.0 and AFL 3.0)
> 
> On Sep 12, 2005, at 11:13 AM, Lawrence Rosen wrote:
> 
> > Gordon Kindlmann wrote:
> >
> >> * Is the author of such a collective work required to notify users 
> >> that the collection includes a copy of my library, by 
> identifying the 
> >> name of my library, or by duplicating the copyright notice that 
> >> accompanies my library?  This is required by LGPL, FLTK, and FOX.
> >>
> >
> > Copies of the Original Work (your library) must be made 
> available in 
> > source.
> > A copy of your library is being distributed, remember.
> >
> >> * If there is such an attribution requirement, how can I waive it?
> >> wxWindows does away with any attribution requirements.
> >>
> >
> > A licensor can waive any provision of his license with 
> respect to his 
> > own original works.
> 
> I believe I'm now grasping the simplicity of OSL 3.0, which 
> deftly leverages the existing legal framework for collective 
> and derived works.
> 
> My concern, again from the standpoint of applying OSL 3.0 to 
> a library, is that the spirit of things like LGPL (and the 
> exception notices that have evolved on top of it) is that at 
> least from a programmer's standpoint, there is a meaningful 
> and fundamental difference between the distribution of a 
> modification of a library, and the distribution of an 
> executable which links against the unmodified library.  If my 
> library is under OSL 3.0, both a modified version of the 
> library, and a copy of the library as contained in an 
> executable (aka collective work), are also to be licensed 
> under OSL 3.0.  Correct?
> 
> So, when you say that "a licensor can waive any provision of 
> his license with respect to his own original works", is there 
> any precedent for limiting that waiver to certain kinds of 
> copies or derivatives?
> 
> In the particular context of the OSL 3.0, this would seem to 
> require some complication of Section 1(a) and 1(c), in that I 
> want OSL 3.0 to cover modifications of the library 
> ("Derivative Works" of 1(c)), and to stand-alone copies of 
> the library ("Original Work" of 1(c)), but
> *not* copies of the library that appear within an executable 
> (collective works of 1(a)).  When part of a collective work, 
> and when in binary form, I would want the copy of my library 
> to be licensed under, for example, *AFL* 3.0 instead of OSL 
> 3.0.  Is this practical within the context of OSL/AFL 3.0, or 
> possible at all?
> 
> >> * If my library in source form is licensed under OSL 3.0, 
> doesn't its 
> >> compilation (in the computer science sense) into binary 
> object code 
> >> form create a derived work of my library ...
> >
> > You're not being stupid. I do not treat computer-style 
> compilation as 
> > a translation for purposes of derivative work analysis. My 
> reading of 
> > the guidelines at the Copyright Office informs me that they treat 
> > object code compiled from source as merely another form of the same 
> > work. They allow you to copyright trade secret software by 
> submitting 
> > compiled object code under a "rule of doubt" which can be 
> resolved, if 
> > necessary, by reference to the source code. They appear to 
> treat it as 
> > two forms of the same work, and so do I.
> 
> Fascinating.  Does this doom my effort to use a reciprocal 
> license for my library, but have non-reciprocal terms for 
> binary copies of the library appearing in a collective work?  
> I would not want, for example, someone to contrive a 
> collective work around a copy of the
> *source* of my library, using the non-reciprocal license I 
> permit for collective works, lift the library out of the 
> collective work, and then modify and distribute it, again 
> under the non-reciprocal license.
> 
> Gordon