Subject: RE: For Approval: Microsoft Permissive License
From: "Kenyon, Douglas W. \(US\)" <dkenyon@hunton.com>
Date: Mon, 10 Sep 2007 13:53:48 -0400

 Mon, 10 Sep 2007 13:53:48 -0400
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-----Original Message-----
From: Ben Tilly [mailto:btilly@gmail.com] 
Sent: Monday, September 10, 2007 1:52 PM
To: Rick Moen
Cc: license-discuss@opensource.org
Subject: Re: For Approval: Microsoft Permissive License

On 9/9/07, Rick Moen <rick@linuxmafia.com> wrote:
> Quoting Donovan Hawkins (hawkins@cephira.com):
[...]
>   First, suppose you are a holder of a registered copyright on a
>   project's code. The project lead changes the license. What are your
>   options?
>
>   To have a legal cause of action against the project lead for
changing
>   the project license, you would have to demonstrate both as a matter
of
>   law that you had the right to block the license change (e.g. a valid
>   copyright), and that the license change actually did an injury to
your
>   interest. Where there is no injury there is no cause of action.
(This
>   rule is applied everywhere in law, not just in copyright law.)
>
>   Under that criterion, it is harmless to change from one license to
>   another if doing so merely adds mutual protections for licensors or
>   licensees (things like an explicit rather than implicit patent
grant)
>   without actually changing the grant of rights. It's also safe to
change
>   clauses that are informational, such as warnings about export
>   regulations. In software terms, a license change that fixes
>   implementation details without changing the output cannot be a cause
of
>   action. Neither holders of registered nor unregistered copyright
would
>   have standing to object.
>
>   In practical terms, this means that some license upgrades are
legally
>   safe. [...]
>
>   Note, however, that an `upgrade' from a copyleft license to a
>   non-copyleft license (or vice-versa) would be a different matter. If
you
>   are a GPL partisan, you would be injured by a move to a non-GPL
license,
>   and vice-versa. These changes are not safe and could be causes of
legal
>   action for copyright infringement by a holder of registered
copyright
>   (who therefore does not have to meet the actual-damages test).
Holders
>   of unregistered copyright would have no standing except by
registering
>   the copyright after the fact of infringement, and then would have to
>   meet the difficult actual-damages standard.
>
> It is clear to me that the example you cite, of a project leader 
> changing the project's licensing terms from GPLv2 to GPLv3, does 
> qualify as protecting the rights of contributors and avoiding injury
to them.

It may be clear to you, but it is not clear to several others, including
me.  Multiple people have pointed out the obvious case of Tivo, if they
had a Linux kernel patch, would they have cause to object if the kernel
went from GPL v2 to GPL v3?  They contributed expecting to be able to
benefit from future improvements made by others, and now they can't
benefit.

Similarly for many embedded devices, the length of the GPL v2 is already
an issue.  The GPL v3 is much longer.  If I am a maker of embedded
devices and have a copyright contribution, do I have the right to object
to the extra space and/or paper that is required to convey the longer
license?

As a practical matter, very few open source projects have properly
registered copyrights to deal with.  And so it may be hard to quantify
and prove actual damages.  But there are real drawbacks for some
contributers to moving to the GPL v3.  Whether or not they would win the
legal case, the objections are real, and I am glad most project leaders
pay attention to them.

[...]
> > On top of all that, it's not ethically right to change license terms

> > in a way that you were not granted permission for without asking 
> > (especially if you'd like to keep getting contributions).
>
> Really?  I would think it would be highly unethical, as project 
> leader, to neglect to change to a better licence that more reliably 
> protects your contributors' interests against new threats (e.g., 
> burgeoning patent portfolios) and old ones.

Suppose that I think a licensing change benefits 95% of my contributers,
but is bad for 5%.  Is it OK to make that licensing change?  I submit
that it is not, because I have no right to coerce that 5% to give of
their freely given labor what they didn't choose to give.

YMMV, and lots of people's do.  But in this case, I think the legal
system agrees with me.  One litigious person with a real beef can
generate a real lawsuit that I can lose.  (Not to mention the lesser but
important issues of generating negative feelings and publicity.)

> But you're right that the nearly universal acceptance of the 
> wrongheaded notion you voice makes it "culturally" problematic for a 
> project leader to take the ethical course of action.  My point is that

> the open source / free software culture is, in that regard, messed up.
(Krishnamurti:
> "It is no measure of health to find oneself well-adjusted to a sick
> society.")

Ethics is only simple as long as people agree on what is moral.  When
they don't, it becomes very complicated, very fast.  (Particularly when,
as is normal, the disagreeing parties don't recognize the source of the
differences.)

Cheers,
Ben