Subject: RE: OSL 3.0 questions
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Thu, 15 Sep 2005 14:30:27 -0700

Alex Bligh wrote:
> A few questions on the OSL 3.0 I have come up with whilst 
> trying to retrofit an OVPL-like clause for intellectual amusement:
> 
> 1. The copyright grant in (1)(c) reads:
> 	"to distribute or communicate copies of the Original Work and
> 	Derivative Works to the public, with the proviso that"
> 
>    Does that imply that there is not a grant to distribute or 
> communicate
>    Original Works and Derived Works other than to the public (e.g. to
>    one individual third party)? I don't think it can be read 
> (nor would
>    you want it read) that the proviso is only meant to apply 
> for public
>    distribution, but I think it can be read that selective 
> distribution
>    is either prohibited (as opposed to "to the public" meaning "to
>    third parties").

The licensee has a license to distribute copies to the public. The licensee
doesn't have to distribute to everyone, but he/she/it can.

> 2. The copyright grant in (1)(c) is conditioned upon 
> compliance with the
>    source-code proviso. The patent license in (2) is not so 
> conditioned,
>    but only applies to the Original Work and Derivative Works. Clearly
>    the point here is that a patent grant only in relation to the works
>    themselves is not much use without a copyright grant. I don't think
>    this matters (I cannot immediately think why a copyright 
> might expire
>    first in a situation we care about), but is there a reason for it?

What do you mean, "only" applies to the O-W and D-W? Is there more it should
apply to? I specifically intended that independent implementations that are
not either the original or a derivative work are simply not licensed for the
patents. The patent grant in OSL 3.0 is inseparably tied to the copyrighted
works in which those patent claims are originally embodied and to derivative
works thereof. In this way, the patents are licensed for a particular
commons of open source copyrighted works, not for extraneous stuff.

> 3. Licensor grants a copyright license under (1). Licensor is 
> defined as
>    the owner of the Original Work. A contributor produces a 
> derived work,
>    and thus is not (as I see it) a Licensor under the 
> license. However,
>    the contributor who distributes under 1(c) must distribute 
> the software
>    under "this Open Software License". In respect of the 
> modifications,
>    to whom exactly are they granting a license, and how? EG 
> if a third party
>    receives the modifications (presumably indirectly via others), what
>    grant clause gives that third party the right to the contributor's
>    modifications? Where I am stuck here is that (1) is only a grant in
>    respect of the Original Work (at least for (a), (d) and (e)), not
>    for Derived works (so we cannot say that the original Licensor is
>    somehow sublicensing the contributions made). Equally, 
> there seems to
>    be no direct grant by the contributor, as even if he does make the
>    Derived work available "under this Open Software License" he is not
>    the Licensor with respect to the Original Work. Or is the idea that
>    the contributor is, with respect to the distributed Derived work,
>    the new "Licensor" (as the original license was sublicensable) and
>    in respect of that distribution and new license, the 
> derived work is
>    (in the second license) an new original work (in which case the
>    definition of Licensor is misleading, as he the distributor of a
>    derived work is not I think best described as its owner).

Note the warranty of provenance in section 7. Does that answer your concern?
If not, is your concern from the vantage point of the original licensor,
some downstream distributor, or an end user? See also my answer below to
your point 4.

> 4. This probably arises from a similar confusion. (6), (7), 
> (10), (11),
>    (14) etc. seem only to refer to the Original Work. Is that 
> intentionally
>    asymmetric or does each contributor have their own "view" 
> of the Original
>    Work? EG (6) appears to prohibit removal of attribution 
> notices from
>    the Original Work, but not from Derived Works (e.g. new notices put
>    in by contributors). This is a non-issue if every Derived Work when
>    distributed constitutes somehow a new Original Work under 
> the license.

You said it: "Every Derived Work when distributed constitutes somehow a new
Original Work under 
the license." The "somehow" is because of section 1(c).

> 5. I am going to bring up (7) again. The effect of the last 
> sentence appears
>    to be that in a jurisdiction which restricts (even 
> slightly) disclaimer
>    of warranty, there is no license granted at all. Is that 
> the intention.

Yes, that's the intention. The disclaimer of warranty "constitutes an
essential part of this License. No license to the Original Work is granted
by this License except under this disclaimer."

If some jurisdiction requires this Licensor to accept warranties (other than
the warranty of provenance, of course), then this License is not valid in
that jurisdiction. Please note that, even without warranties, the Licensor
may still be liable (in a limited way) under general liability laws in any
jurisdiction in which he/she/it chooses to conduct business. See sections 8
and 11.

/Larry Rosen