Subject: RE: OSL 3.0 questions
From: Alex Bligh <alex@alex.org.uk>
Date: Thu, 15 Sep 2005 23:17:35 +0100

Larry,


> The licensee has a license to distribute copies to the public. The
> licensee doesn't have to distribute to everyone, but he/she/it can.

Sure - then why not remove the words "to the public", or write
"to third parties".

>> 2. The copyright grant in (1)(c) is conditioned upon
>> compliance with the
>>    source-code proviso. The patent license in (2) is not so
>> conditioned,
>>    but only applies to the Original Work and Derivative Works. Clearly
>>    the point here is that a patent grant only in relation to the works
>>    themselves is not much use without a copyright grant. I don't think
>>    this matters (I cannot immediately think why a copyright
>> might expire
>>    first in a situation we care about), but is there a reason for it?
>
> What do you mean, "only" applies to the O-W and D-W?

No I mean the patent grant applies to the O-W and the D-W unconditionally,
whereas the 1(c) grant applies to the O-W and D-W conditionally. Thus
if the condition is not met , there is a patent grant to the O-W and
D-W, but not a copyright grant.

> The patent grant in OSL 3.0 is inseparably tied
> to the copyrighted works in which those patent claims are originally
> embodied and to derivative works thereof. In this way, the patents are
> licensed for a particular commons of open source copyrighted works, not
> for extraneous stuff.

That's what I meant by "the patent grant is not much use without a
copyright grant". I was trying to find a reason the patent grant
wasn't conditional too. I think it doesn't matter, but would if (for
some reason) the copyright grant was not necessary (it's hard to think
of scenarios where this might matter - perhaps the copyright could
have been put in the public domain or something, in which case the
OSL could not be relied on as a patent license). As I said it's a bit
esoteric and i can't think of a realistic scenario where this matters.

> Note the warranty of provenance in section 7. Does that answer your
> concern? If not, is your concern from the vantage point of the original
> licensor, some downstream distributor, or an end user? See also my answer
> below to your point 4.

No it doesn't answer the question (in that I'm still in the dark).
Let me give you a scenario.

Alice creates an original work, and licenses it under the OSL. She
distributes it to Bob. Bob modifies the work, and distributes it to
Charles.

What are the terms of the license under which Charles may use and
modify the modified work? Are they:
a) Under the terms of the OSL, with Alice as Licensor (in which case
   how does she receive a grant for the modifications Bob made?).
b) Under the terms of the OSL, with Bob as the Licensor, with the
   work he modified constituting the "Original Work" (as defined there-in)
   from Alice's perspective, with Bob sublicensing Alice's work as
   part of the grant (in which case how do terms like (8) protect
   Alice? also Bob is not an 'owner' as described in the preamble); or
c) Under both of the above, i.e. an OSL license from Alice in respect of
   her original work with her, and an OSL license license from Bob in
   respect of his modifications, the former having Alice as Licensor
   and the latter having Bob as Licensor. As Bob does not have capacity
   (why?) to sublicense Alice's work, Charles has to have a license from
   Alice too, which is why Alice is protected (as Charles cannot otherwise
   use Alice's work). (how does this work, in that the license is
   sublicensable - also Bob is not an 'owner' as described in the preamble)

> You said it: "Every Derived Work when distributed constitutes somehow a
> new Original Work under
> the license." The "somehow" is because of section 1(c).

OK. That isn't immediately obvious, because 1(c) says "under *this*
Open Software License", the "this" implying it retains the same definition
of Licensor. Perhaps "(with You as Licensor)" would be better added,
and the "owner" thing in the preamble being removed - it adds nothing
with the warranty of provenance stuff which accurately describes it.

So this eliminates my possibility (a) above, and I presume the answer
intended is (b). But in that case, how does (8) protect Alice against
Charles' suit, as Bob is the "Licensor" as far as Charles is concerned,
as he's merely using Bob's license (authorized by sublicensability)?

>> 5. I am going to bring up (7) again. The effect of the last
>> sentence appears
>>    to be that in a jurisdiction which restricts (even
>> slightly) disclaimer
>>    of warranty, there is no license granted at all. Is that
>> the intention.
>
> Yes, that's the intention. The disclaimer of warranty "constitutes an
> essential part of this License. No license to the Original Work is granted
> by this License except under this disclaimer."
>
> If some jurisdiction requires this Licensor to accept warranties (other
> than the warranty of provenance, of course), then this License is not
> valid in that jurisdiction. Please note that, even without warranties,
> the Licensor may still be liable (in a limited way) under general
> liability laws in any jurisdiction in which he/she/it chooses to conduct
> business. See sections 8 and 11.

OK. I think I need to do some more research on the above. Apocryphal
evidence suggests this would mean the OSL is not (for instance) valid in AU
(and no I don't know the AU law - yet). That may be design rather than a
problem, but we should at least know.

Alex