Subject: Re: Followup on Exhibit B licences
From: Richard Fontana <>
Date: Tue, 06 Mar 2007 22:49:09 -0500

Lawrence Rosen wrote:
> 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? 

Indeed, I would take "making available" in any such licenses to have the
meaning it has in the 1996 WIPO copyright treaty, which is approximately
the right of distribution of copies under US copyright law:

Article 6
Right of Distribution

(1) Authors of literary and artistic works shall enjoy the exclusive right
of authorizing the making available to the public of the original and
copies of their works through sale or other transfer of ownership.