Subject: RE: External deployment / Otherwise Make Available (was Re: OVPL summary)
From: Brian Behlendorf <brian@collab.net>
Date: Thu, 15 Sep 2005 15:54:01 -0700 (PDT)

On Thu, 15 Sep 2005, Lawrence Rosen wrote:
> Brian Behlendorf wrote [in a private email]:
>> I know you don't like edge cases, but to me the edges are
>> still soooo fuzzy that I would strongly avoid licenses that
>> talk about "use" being a trigger for any obligation.
>
> So you would avoid the BSD license if it triggered an obligation?

If "use" was a trigger for those conditions, yes.  Right now, it does not, 
and that's a silly hypothetical anyways since the BSD license does not 
place any obligation upon "use".

> What if it triggered a limitation on your rights or was the only thing 
> you could do besides "redistribute"? :-)

Then it wouldn't be a BSD license.  I'm not sure I get your point.

> I'm not trying to make things vague. I'm simply suggesting that patent law
> has dealt with the definition of "use" for years. That word even affects our
> rights under copyright law to make backups and to copy software into memory.
> Cases abound.

Right, a dreadful direction, IMHO.  But people seem intent on solving "the 
ASP loophole" as it's called (a term which discourages me from avoiding 
calling copyleft licenses "viral",) so I'm not going to argue that such 
clauses are anti-Open Source.  But with the inherent fuzziness about what 
"use" actually is, I don't want to have to trust that my understanding of 
that term is the same as the author's.  Because we all know it doesn't 
really matter what our intent is today; it's what a jury can understand 
and think was meant.

> Even in the absence of open source software, owners of software patents have
> to deal with the issue of use. Is the customer at McBurger potentially
> liable for patent infringement. Is the sender of email potentially liable
> for patent infringement if his mail flows through a Cisco router that
> infringes a patent? Of course not.

Given all the use-of-open-source indemnification clauses our customers 
have asked for in our contracts with them, my sense is that those lawyers 
don't have the confidence that you do.

I'm all for granting of additional rights related to "use" - "you have the 
rights to use all patents owned by Contributors as implemented in this 
software through their Contributions", or whatever.

 	Brian