Subject: Re: new licensing model
From: "Philippe Verdy" <verdy_p@wanadoo.fr>
Date: Sat, 17 Dec 2005 08:05:55 +0100

 Sat, 17 Dec 2005 08:05:55 +0100
From: "Nikolai" <n k@au.ru>
> Matthew Seth Flaschen wrote:
> OSD #1: “The license shall not restrict any party from selling or giving 
> away the software as a component of an aggregate software distribution 
> containing programs from several different sources. The license shall 
> not require a royalty or other fee for such sale”.
> 
> According to my Collins English-English dictionary “sale” means:
> - the exchange of goods or property for an agreed sum of money;
> - the amount sold;
> - an event at which goods are sold at reduced prices;
> - an auction;
> 
> What is “sale” according to OSD #1?

The preceding term "such" refers to the definition itself "selling or giving away the
software", whever it ispart or not of an effective aggregate (the simplest aggregate
being the isolated software itself, i.e. the singleton component).

> How to connect “The license shall not restrict any party from selling …” 
> with “The license shall not require a royalty or other fee for such sale”?

I think that this definition espacially forbids the author of the licenced open-source
software or any distributor from creating an afficliation program, where indirect revenues
are generated from the distribution by a third party that gets the licenced software.
The licence indicates that once you get a copy of the software, you are not bound to
paying any fee to other parties, except the distribution costs from the single party
from which you get the software. The licencee is free to choose its distributor, free
to pay for one distribution or to choose one which offers it at no cost, and free to
delete its copy and all its obligations with one distributor if he chooses to use another
source.
No distributor can limit the number of copies and the form of the distribution (so restrictions
like "licenced for personal use and for use on a single system" are not tolerated for
open-source softwares).

The licencee has no obligation to track and report back to the original distributor
or to the author or copyright holder the identities of licencees and number of licences
it has distributed itself, and no licensee should be forced to register their licence
back to the author or copyright holder. In exchange, the author or copyright holder
is not required to provide andmaintain a permanent and immediate contact point, andhasno
obligation of supporting it (so denials of guarantees are legal and even encouraged,
as much as permitted by the national law and international treaties that protects its
copyright and the derived rights based on the software and that keeps the authorwith
the right to maintainorenhence its own software creation). As well, any licencee keeps
its right of use and modification of the software, and the right to distribute the modification,
and is not required to register or notify the original author or its distributor of
the modifications that have been made.

The royaltee collection system isbased on a binding network of trust and obligations
that brings back the money to the original author or copyright holder. Such binding
network is not in the spirit ofopen-source software. Note that this is that spirit which
is extremely threatened by national laws based on EUCD or DMCA (for example the new
requirement to register anddeposit a legal copy at some governmental-approved agency,
most of them legally requiring fees.) The risk there is that there will be a new business
for registration agencies that will try getting governmental approbation to collect
the fees for legal depots required by law. Then these agencies would really and severely
impact the open-source movement, because one will be legally required to prove that
he paid for the legal depot to some limited repositories.

This not only threatens the whole open-source movement, but the free Internet as well
(need not only register a domain name but also deposit its published content eachtimeit
is modified or expanded). This severely impacts the freedom of speech: no more money,
no moreright to publish your own creations.