Subject: Re: DRAFT: OSL version 3.0
From: Chuck Swiger <chuck@codefab.com>
Date: Wed, 10 Aug 2005 23:53:36 -0400

Lawrence Rosen wrote:
> I read with great interest the "Report on Open Source Licensing of Software
> Developed by The European Commission." [1]

I found this link to be interesting to read, with a wierd spin on certain 
issues, but I'll touch on this more later.

[ ... ]
> You will, however, note a few differences from what was suggested:
> 
> * I believe my change to section 1(b) accomplishes what the report authors
> wanted. I'm not entirely sure why they believe it is necessary, but anything
> that clarifies what we mean by "derivative work" is probably useful. I
> welcome a re-reading of that provision.

Short is better than long, and the MIT license:

"use, copy, modify, merge, publish, distribute, sublicense"

...seems to say it all in the fewest words (IMHO).

I don't really understand the distinction between "distribute" and "communicate 
to the public" in EU law, but perhaps it's moot considering the other freedoms 
already granted.

> * I modified the proposed wording for section 9. I try very hard to avoid
> technology-specific language in my licenses. 

Agreed.  Furthermore, requiring click-wrap agreement seems to violate OSD #10.

> * I did not agree to the proposal for section 11 ["Jurisdiction, Venue and
> Governing Law"]. I am biased against any license language that is specific
> to any country. [ ... ]

Yes, obviously hard-coding Belgian law into a European-wide license is going to 
be something of a non-starter even within the EU, and it does nothing to solve 
the issue of being truly portable by avoiding any country-specific language.

> To be fair, I am even willing to remove the
> specific reference in that section to the U.S. Copyright Act if someone can
> propose equally-understandable language.

I agree that removing the explicit reference to 17USC101 in OSL #11 would be an 
improvement.  Do you really need to refer to copyright law explicitly here, 
isn't setting the jurisdiction and venue enough?

Or is this one of those, "not only did so-and-so break the license terms, 
so-and-so did so knowingly-- see! section 11 mentioned copyright law-- which 
means so-and-so goes to jail, does not pass go, and does not collect $200, and 
I get to collect triple the rent...?" :-)

[ ... ]

What else?  I found the shortening of section 8 to just "This limitation of 
liability shall not apply to the extent applicable law prohibits such 
limitation." to be a good change.

-- 
-Chuck

PS: Lets turn to the link:

> [1] http://europa.eu.int/idabc/servlets/Doc?id=21197

 From the first page of content, the "executive summary":

> The selected or created license must be proposed in French and English and 
> to consider all legal issues to be in conformity to the European Union legal
> framework (choice of jurisdiction, applicable law, limitation of warranty 
> and liability etc.). It should also be based, as much as possible, on current
> OSS licenses.
>
> The most significant F/OSS licenses (BSD, GPL, MPL, OSL and CeCILL) have
> been compared and analysed according to the European legal framework,
> demonstrating that NONE OF THE EXISTING OSS LICENCES ANSWERS TO THE REQUIREMENTS.

I tried to understand what these requirements are, aside from what was 
mentioned in the first paragraph.  Or is it really the case that the #1 
requirement, presumably the highest priority goal that CIRCA has, is to create 
a new F/OSS license in both English and French?

[ In which case, couldn't you just translate an existing license, such as the 
OSL, into French and call it a day...? :-) ]

> The BSD license should be put aside given the absence of copyleft clause. This is
however a
> fundamental feature in order to avoid the appropriation of the program by third parties.

The BSD license is not copyleft, agreed.  Why this makes the BSD license 
unsuitable is implied, not explained.  Why should the BSD license be put aside?

I looked around for more info on their requirements to help me understand what 
the problem they are trying to solve is, and found something on page 8:

> At the same time, the business and legal objectives include a number of requirements:
>  the software, or parts thereof, should be made proprietary by other parties
>  Liabilities and warranty should be disclaimed, as far as permitted by law
>  The License should be compliant with the EU regulatory framework
>  The License should be provided in French and English

If you want people to be able to use some parts of the system and keep them 
proprietary, then it seems like a non-copyleft license is actually what CIRCA 
wants...?

	-----

Later on page 8:

> As they are many examples of OSS licenses with often few variations between them,
we
> selected 5 representative licenses: four well known American models and one European
> (French) license attempt to present a license that is more compatible with European
law and
> practice or culture.

If the CIRCA believes that the GPL or BSD licenses might be incompatible with 
European practices or culture, please be reassured that programmers actually 
writing code under such Open Source licenses seem to be doing just fine.

Specificly, there are a whole lot of people writing code under the GPL in 
Europe (where's Linus when you need him? :-), and several of the most prolific 
FreeBSD committers are from Germany, happily writing BSD-licensed stuff.

And since when did it become fashionable to identify SourceForge as "the most 
popular _American_ development site"...?

[ Last I checked, SourceForge didn't discriminate between projects based on the 
physical location of the authors of software.  And my closest SourceForge 
mirror happens to be hea.net, in Dublin, IE. ]