Subject: RE: Change ot topic, back to OVPL
From: Alex Bligh <alex@alex.org.uk>
Date: Thu, 25 Aug 2005 11:42:05 +0100

Larry,

--On 24 August 2005 17:25 -0700 Lawrence Rosen <lrosen@rosenlaw.com> wrote:

> 2) Defining the term "distribution" is nowadays essential, for the very
> reasons you describe. That is why the OSL, in section 5, defines that term
> so as to include the concept of "external deployment." But it is
> *external* and not *internal* deployment that counts. Does the OVPL
> maintain that distinction?

I agree that some clarification of the term "distribution" is useful in
licenses.

However, we were looking to change the CDDL as little as possible. Neither
the GPL, MPL, or CDDL define distribution - I think the OSL is the only
license that does. In fact (and I may be wrong here), I don't think the OSL
actually *does* define distribution, presumably because there is
jurisdiction dependent case law on it - it merely states that "external
deployment" is to be deemed distribution (in addition to whatever else
distribution is).

I suggest that the reason why the OSL does not count deployment or
distribution within an organization as an activity that requires provision
of source, is not because of section 5 per-se, but because of section 14,
"Definition of 'You' in License". This makes it quite clear that 'You'
includes legal entities, and entities under common control. The CDDL and
OVPL have a very similar definition of "You" (1.13 and 1.18 respectively).

On the more general point, Andrew Wilson said that some of my posts re
"internal distribution" and "reaching in" had been confusing. If so, I
apologize.

I an attempt to clarify things, here is what the OVPL is trying to do.
You will note things are much the same as any other license.

a) In the CDDL, the event that triggers the obligation to provide source
   code is set out in Clause 3.1.

   "Any Covered Software that You distribute or otherwise make available in
    Executable form must also be made available in Source Code form"

   note the expression "or otherwise make available". You'll find it's
   sprinkled liberally throughout the CDDL text. It isn't in the MPL.

   What we sought to do is to trigger the license-back on exactly the same
   event.

b) It is *NOT* the intent of the OVPL that internal distribution within an
   organization counts as "distribution". The GPL, MPL, CDDL, and OVPL
   all have the same wording for distribution, and the same charge can be
   levied at all licenses. Indeed, closed source licenses prevent
   "distribution" but noone claims that if employee X buys a software
   license on behalf of his employer, but employee Y uses it, that is
   prohibited distribution. The reason for this is because it is the
   employer that is the licensee, and not the employees, who are merely
   acting as the employer's agents in this respect. In fact, open-source
   licenses such as the OVPL, CDDL and OSL are MORE generous in this
   respect in that they allow a wider definition of licensee (including
   associated companies - see above); I am presuming the strict legal
   position is they are joint licensees.

   So there is nothing "special" going on with regard to "distribution"
   in the OVPL. Where it triggers an obligation in the CDDL, it triggers
   two obligations in the OVPL. And the same "reaching in" provisions
   apply to the (undefined) term "distribution" in the OVPL as (say) the
   GPL, MPL, or CDDL.

c) Both the CDDL and the OVPL refer to "distribute or otherwise make
   available". We believe that just as "internal" distribution within
   an organization is not distribution (for the reason described in (b)
   above), "internal" "making otherwise available" is also not
   "making otherwise available". It is the legal entity (e.g. employer)
   which is the licensee here, and making something available to oneself
   is a meaningless concept. The meaning in both licenses it seems to me
   is "make otherwise available to a third party". What we think this means
   is ASP-style use. Larry specifically includes this in his definition of
   distribution. The OVPL and CDDL say "distribute or otherwise make
   available".

   Arguably, it would have been a good thing to capitalize and define
   "otherwise make available". However, we wanted to make as few changes
   to the CDDL as possible, so we didn't. With the OSI's approval of the
   CDDL in mind, we presumed this change from the MPL would have been
   acceptable. I would be interested in views.

   However, I *don't* think this has anything to do with "reaching in"
   (i.e. imposing obligations on internal 'distribution' or for that
   matter 'making otherwise available') because the same criticism can be
   made, and met, of any other license. I suspect it is because non-lawyers
   tend to think in terms of natural persons only, and not legal persons,
   and the status of employees as agents of a legal person is perhaps not
   obvious.

Andrew - you said (off-list) one of my posts in particular was confusing in
that it didn't accord with the above - if you can find it I will be only
too happy to correct it.

Alex