Subject: RE: Followup on Exhibit B licences
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Tue, 6 Mar 2007 18:46:58 -0800
Tue, 6 Mar 2007 18:46:58 -0800
Timothy McIntyre wrote:

Wherever software distribution is mentioned in the license, we added the
phrase "or otherwise makes available," in order to cover passive types of
distribution, such as with ASPs.  This modification to the MPL also appears
in the CDDL.

 

I'm curious why you believe that the phrase "or otherwise makes available"
is sufficient to plug the ASP loophole and to require that the source code
of internal modifications of licensed software must be disclosed simply
because the software is accessed over a network? Is that phrase clearly
defined in the CDDL? Or is there some commonly understood meaning that is
found in legal authorities? Your interpretation may be surprising to Sun
(who owns the CDDL) and its customers, who probably do not expect that
CDDL-licensed software is subject to an ASP provision. Perhaps one of Sun's
attorneys here can clear this up.

 

There is already before the courts a case dealing with the meaning of
"distribution" in the context of music downloads. I found the following
article by Ray Beckerman informative: "Is 'Making Available' Copyright
Infringement?"
http://www.hollywoodreporteresq.com/thresq/spotlight/article_display.jsp?vnu
_content_id=1003535810. I'm not sure how relevant this point is, but it may
be that your interpretation of the phrase comes closer to the RIAA position
than that of EFF, which would be unusual for open source. Perhaps it would
avoid confusion if the CDDL and similar licenses defined what they mean by
"otherwise makes available" and not leave it to interpretation.

 

That is why OSL 3.0 is explicit:

 

5) External Deployment. The term "External Deployment" means the use,
distribution, or communication of the Original Work or Derivative Works in
any way such that the Original Work or Derivative Works may be used by
anyone other than You, whether those works are distributed or communicated
to those persons or made available as an application intended for use over a
network. As an express condition for the grants of license hereunder, You
must treat any External Deployment by You of the Original Work or a
Derivative Work as a distribution under section 1(c).

 

/Larry Rosen

 

  _____  

From: Timothy McIntyre [mailto:tmcintyre@terracottatech.com] 
Sent: Tuesday, March 06, 2007 5:52 PM
To: Rick Moen
Cc: license-discuss@opensource.org
Subject: Re: Followup on Exhibit B licences

 

These are interesting points.  Earlier in this thread, there was mention
that licensees who use "MPL + attribution" -style licenses have overlooked
the so-called 'ASP loophole.'  I work for Terracotta, and we distribute our
software under the Terracotta Public License, which is MPL w/ attribution
(i.e., redistributed software must contain 'Powered by Terracotta' text in
any UI).  When we were deciding on our license, we wanted to address the ASP
loophole, so we ended up revising the original language of the MPL.
Wherever software distribution is mentioned in the license, we added the
phrase "or otherwise makes available," in order to cover passive types of
distribution, such as with ASPs.  This modification to the MPL also appears
in the CDDL.


Rick Moen wrote: 

Correcting my recent post:
 
  

The only open source licences that would prevent ASP pilfering is GPL
v3 (not released yet), Affero Public License (not OSI certified) and
Honest Public License (not OSI certified).
      

In addition, Apple's licence also has an ASP clause, and _is_ OSI-certified.
    

 
My apologies for forgetting that Lawrence Rosen's excellent "Open
Software License (OSL) v. 1.1 _also_ has language addressing ASP scenarios, 
and likewise is already OSI-certified
(http://www.opensource.org/licenses/osl.php).
 
It grants rights for performance and display (clause 1) of the upstream
work.  Clause 5 requires licensee to stipulate that any "external use"
(use or distribution so that the work is accessible to others) by
licensee qualifies as "distribution" of the software for purposes of the
licence, tying clause 1c's copyleft obligation to such usage.
 
  






-- 
 
____________________________________________________
Timothy McIntyre // Corporate Counsel
Terracotta // Open Source Clustering for Java
 
web: www.terracotta.org
tel: 415.738.4014
fax: 415.738.4099
 
This email incorporates Terracotta's confidentiality policy, which is online
at http://www.terracottatech.com/emailconfidentiality.shtml


Timothy McIntyre wrote:

Wherever software distribution is mentioned in the license, we added the phrase "or otherwise makes available," in order to cover passive types of distribution, such as with ASPs.  This modification to the MPL also appears in the CDDL.

 

I'm curious why you believe that the phrase "or otherwise makes available" is sufficient to plug the ASP loophole and to require that the source code of internal modifications of licensed software must be disclosed simply because the software is accessed over a network? Is that phrase clearly defined in the CDDL? Or is there some commonly understood meaning that is found in legal authorities? Your interpretation may be surprising to Sun (who owns the CDDL) and its customers, who probably do not expect that CDDL-licensed software is subject to an ASP provision. Perhaps one of Sun's attorneys here can clear this up.

 

There is already before the courts a case dealing with the meaning of "distribution" in the context of music downloads. I found the following article by Ray Beckerman informative: "Is 'Making Available' Copyright Infringement?" http://www.hollywoodreporteresq.com/thresq/spotlight/article display.jsp?vnu content id=1003535810. I'm not sure how relevant this point is, but it may be that your interpretation of the phrase comes closer to the RIAA position than that of EFF, which would be unusual for open source. Perhaps it would avoid confusion if the CDDL and similar licenses defined what they mean by "otherwise makes available" and not leave it to interpretation.

 

That is why OSL 3.0 is explicit:

 

5) External Deployment. The term "External Deployment" means the use, distribution, or communication of the Original Work or Derivative Works in any way such that the Original Work or Derivative Works may be used by anyone other than You, whether those works are distributed or communicated to those persons or made available as an application intended for use over a network. As an express condition for the grants of license hereunder, You must treat any External Deployment by You of the Original Work or a Derivative Work as a distribution under section 1(c).

 

/Larry Rosen

 


From: Timothy McIntyre [mailto:tmcintyre@terracottatech.com]
Sent: Tuesday, March 06, 2007 5:52 PM
To: Rick Moen
Cc: license-discuss@opensource.org
Subject: Re: Followup on Exhibit B licences

 

These are interesting points.  Earlier in this thread, there was mention that licensees who use "MPL + attribution" -style licenses have overlooked the so-called 'ASP loophole.'  I work for Terracotta, and we distribute our software under the Terracotta Public License, which is MPL w/ attribution (i.e., redistributed software must contain 'Powered by Terracotta' text in any UI).  When we were deciding on our license, we wanted to address the ASP loophole, so we ended up revising the original language of the MPL.  Wherever software distribution is mentioned in the license, we added the phrase "or otherwise makes available," in order to cover passive types of distribution, such as with ASPs.  This modification to the MPL also appears in the CDDL.


Rick Moen wrote:

Correcting my recent post:
 
  
The only open source licences that would prevent ASP pilfering is GPL
v3 (not released yet), Affero Public License (not OSI certified) and
Honest Public License (not OSI certified).
      
In addition, Apple's licence also has an ASP clause, and  is  OSI-certified.
    
 
My apologies for forgetting that Lawrence Rosen's excellent "Open
Software License (OSL) v. 1.1  also  has language addressing ASP scenarios, 
and likewise is already OSI-certified
(http://www.opensource.org/licenses/osl.php).
 
It grants rights for performance and display (clause 1) of the upstream
work.  Clause 5 requires licensee to stipulate that any "external use"
(use or distribution so that the work is accessible to others) by
licensee qualifies as "distribution" of the software for purposes of the
licence, tying clause 1c's copyleft obligation to such usage.
 
  




-- 
 
                                                    
Timothy McIntyre // Corporate Counsel
Terracotta // Open Source Clustering for Java
 
web: www.terracotta.org
tel: 415.738.4014
fax: 415.738.4099
 
This email incorporates Terracotta's confidentiality policy, which is online at http://www.terracottatech.com/emailconfidentiality.shtml