Subject: RE: For Approval: Academic Citing License
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Tue, 28 Sep 2004 17:33:02 -0700

 Tue, 28 Sep 2004 17:33:02 -0700
> OSLv 2.1's clause 1(d) purports to grant a licence "to perform the
> Original Work publicly".  Which begs the question of what it means to
> perform the work.  But OSL needn't be used solely for software, but can
> be used for any "original work of authorship".
> 
> Clause 5, the one you have in mind, says in part:  "As an express
> condition for the grants of license hereunder, You agree that any
> External Deployment by You of a Derivative Work shall be deemed a
> distribution and shall be licensed to all under the terms of this
> License, as prescribed in section 1(c) herein."
> 
> Of course, the fact that a licence purports to regulate something
> doesn't actually establish that it does, whether in software or anything
> else.  Maybe Larry, who's both a Real Lawyer<tm> and the licence's
> author, will be kind enough to comment.
> 
> RealNetworks Public Source License 1.0 likewise purports to cover either
> software or "other works", and likewise has that sort of "external
> deployment" clause, as you say --  but  makes no reference to
> "performance rights" in so doing.

Clause 1(d) has nothing directly to do with Clause 5. 

As you suggested, Clause 1(d) of OSL v 2.1 is there primarily to cover other
types of works that can be performed. But who cares? If you want to
"perform" software, the OSL expressly allows it just as it expressly allows
"use," so there's no need to worry about whether it is a performance or a
use.

As for Clause 5 of the OSL v 2.1 and the similar (but more draconian)
provision in the RealNetworks license, those are conditions that must be met
or the licensee has no right to "distribute" derivative works. Yes, the
license purports to regulate that behavior. Would a substantial software
company dare to test that provision in court? If the OSL v 2.1 or the
RealNetworks licenses are formed as contracts, I'm confident they are
enforceable.

/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 
email: lrosen@rosenlaw.com 



> -----Original Message-----
> From: Rick Moen [mailto:rick@linuxmafia.com]
> Sent: Tuesday, September 28, 2004 4:51 PM
> To: license-discuss@opensource.org
> Subject: Re: For Approval: Academic Citing License
> 
> Quoting Michael Poole (mdpoole@troilus.org):
> 
> > US law is less clear than you imply.  From the WIPO Copyright Treaty:
> > "Computer programs are protected as literary works within the meaning
> > of Article 2 of the Berne Convention."  The Berne Convention reserves
> > "public recitation" of literary works to the copyright holder, and
> > Article 8 of the WIPO Copyright Treaty further expands the rights
> > reserved to the author of a literary work.  For literary works, 17 USC
> > 106 does reserve the rights of public performance and public display
> > to the copyright holder.
> 
> It is unclear to me from the wording of the statute that the usual
> sorts of situations involving execution of code (per se) constitutes a
> "public performance" within the meaning of copyright law.
> 
> > Authors do not enjoy (in the US) performance rights on code's
> > execution, but they do enjoy public performance rights as far as the
> > term applies to their programs.
> 
> This sentence's ending qualifier seems to make it in agreement with my
> statement, not disagreement.  ;->  It may be that, if you own copyright
> to DeCSS and Placido Domingo holds public recitals of your C code onstage
> at Carnegie Hall, he might owe you royalties.  Thus my own qualifier
> "per se", which seems to have snuck around behind both of us and shook
> hands with yours.
> 
> > Cf "external deployment" clauses such as those found in the Open
> > Software License and RealNetworks Public Source License.
> 
> OSLv 2.1's clause 1(d) purports to grant a licence "to perform the
> Original Work publicly".  Which begs the question of what it means to
> perform the work.  But OSL needn't be used solely for software, but can
> be used for any "original work of authorship".
> 
> Clause 5, the one you have in mind, says in part:  "As an express
> condition for the grants of license hereunder, You agree that any
> External Deployment by You of a Derivative Work shall be deemed a
> distribution and shall be licensed to all under the terms of this
> License, as prescribed in section 1(c) herein."
> 
> Of course, the fact that a licence purports to regulate something
> doesn't actually establish that it does, whether in software or anything
> else.  Maybe Larry, who's both a Real Lawyer<tm> and the licence's
> author, will be kind enough to comment.
> 
> RealNetworks Public Source License 1.0 likewise purports to cover either
> software or "other works", and likewise has that sort of "external
> deployment" clause, as you say --  but  makes no reference to
> "performance rights" in so doing.