Subject: RE: Request for approval: EUPL (European Union Public Licence) Questions
From: "Schmitz, Patrice-Emmanuel" <patrice-emmanuel.schmitz@be.unisys.com>
Date: Mon, 17 Mar 2008 15:08:23 -0000

 Mon, 17 Mar 2008 15:08:23 -0000
Hi all, 

As the "point of contact" for this request, I will make my best to address your questions.
First thanks for your interest for EUPL, it impressive. IDABC people at the European
Commission (EC) are aware of the request and welcome it.  

1. Multi-lingualism (Approval of version in 22 official languages of the European Union).
The OSI approval is being sought for the English version only (that was transmitted
to license-review) - as the OSI has not ever approved any other language licence. 
The fact other linguistic versions were approved by the EC and reflect faithfuly the
English version is the responsibility of the EC: they have the largest experience in
the world of translating legal text as the EU treaties and all community law (more than
a million pages) is translated with binding value in 22 languages.
Concerning EUPL, there was a specific quality control: the translations were elaborated
by legal services and submitted in May 2007 to expert lawyers that were familiar with
Open Source, they corrected and commented in August 2007.
All versions are published on: http://ec.europa.eu/idabc/eupl

The expert debated in a Workshop on 25 January 2008. 
The list of workshop participants is published on http://ec.europa.eu/idabc/servlets/Doc?id=30133

Workshop documents are on: http://ec.europa.eu/idabc/en/document/7352 
Therefore, while reqesting OSI approval for the English version only, I believe that
everything that was possible was done to obtain reliable and faithful translations.

2. Concerning the provision of article 13 " The European Commission may put into force
translations and/or binding new versions of this Licence, so far this is required and
reasonable." 

Concerning translation, this will be submitted to the same process as in point 1. If
a new Member State joins the Union (as for example Croatia by 2010) they will ask for
- and obtain - their official translation of the EUPL.

Concerning new binding versions, The two words "required and reasonable" are the key:

	"required" means that the European Commission may update the licence to address
new legal or technological issues that would otherwise keep the licence from functioning
as intended.
	"reasonable" means that a new version will not change the fundamental characteristics
of the licence, such as the freedoms it grants you, the liability exemption, or its
reciprocal (or “copyleft”) character, meaning that the exclusive appropriation of
the licensed work will never be authorised.
In the above limits, new versions of the Licence will become binding for licensees.
The above clarification will be published as "FAQ".
As the word "reasonable" may appears as too vague, there is already a recommendation
to complement Article 13 as follows: "so far this is required and reasonable, without
reducing the scope of the rights granted by the Licence.”  
 

3. Concerning the downstream compatibility (with GPL v 2, OSL v 2.1 & 3.0, Eclipse v
1.0, Cecill v 2.0, Common Public Licence v 1.0), there is a dedicated report by two
lawyers defining the requirements for selecting these other compatible copyleft licences
http://ec.europa.eu/idabc/servlets/Doc?id=27472.

GPL v 3 is indeed not yet included in to the list, but the EUPL expert group came to
the conclusion that GPL v 3 is meeting the requirements. Therefore it should be included
in the EUPL list of compatible licences in the near future.
  

4. Concerning applicable law.
I believe that many OSI approved licences refer to a specific applicable law (i.e. California)
even if the licence can be used anywhere. The EUPL does the same, ensuring that the
applicable law is the law of a EU member State: "... the law of the European Union country
where the Licensor resides or has his registered office..." and the Belgian Law (which
is the EU Member State where the European Commission has its registered office) in all
other cases. All EU Member States laws have similar principles concerning copyright
and the information to be provided to the user (address requirement / consumer's regulation).
They may differ on other topics like degrees of warranty and liability.

5. Concerning the address requirement, the licence says that you must comply with applicable
law, no additional requirement is being made by the licence which is not already existing
in whatever (EU Member State's) law happens to apply.
There is no implication that failure to provide addresses can ever lead to termination
of the licence, only a reminder that in some jurisdictions, addresses are required to
be provided by the law. where this is not required by the law, the licence clearly does
not require it.


6. Concerning competent Court or venue.
It can be anywhere in the world: "the competent court where the Licensor resides or
conducts its primary business..."  We know that such provision may not be enforced if
another court (i.e. of the residence of the end-user) declares itself competent based
on consumer law, for example.  



Patrice-E. Schmitz 



-----Original Message-----
From: Matthew Flaschen [mailto:matthew.flaschen@gatech.edu] 
Sent: Saturday, March 15, 2008 4:44 PM
To: License Review
Subject: Re: Request for approval: EUPL (European Union Public Licence)

Schmitz, Patrice-Emmanuel wrote:

> On 9 January 2007, after two years preparatory work, several studies
> and a public consultation published on its official Web Site
> (http://ec.europa.eu/idabc/en/document/5425 )

This is indeed a major initiative.  I recall seeing the license draft
posted, and I may have sent in a comment.

>> For the first time, the licence hs now binding value in
>>
>> 22 official languages of the European Union. This is a unique
>>
>> acknowledgement of linguistic diversity in the open source community. 
>>
>> The majority of other licence texts produced in North America
>> consider 
>>
>> translations as informative only, without a binding value. Contracting
>> in 
>>
>> national language is a common requirement from many governments in
>> Europe.

That is a major distinguishing feature of your license(s).

However, it begs the question, are you seeking approval for all of these
translations, or just the English?

In my opinion, it would be unwise of the OSI to approve the non-English
language versions at this time.  This is because translation errors can
affect the meaning, the majority of the OSI board is only fluent in
English (as far as I know), and hiring independent translators familiar
with legal terms would be cost-prohibitive.

This means, "The European Commission may put into force translations"
must be removed.  Particularly with the binding "new version" clause,
this is not satisfactory.

That clause, stating that a "new version of the Licence becomes binding
for You as soon as You become aware of its publication."

allows you to make the license non-OSD compliant at any time, by putting
out a new version or translation.

This should also be removed.  Someone must be able to continue using
license version X permanently, if they received the software under
license version X.  Of course, new versions of the software would be
under new licenses.

>> Last, the EUPL was really written with an open
>>
>> mind, allowing developers to reduce the existing incompatibility
>>
>> barriers between the various "copyleft" licences.

This feature, though it makes the license somewhat generic, and may
actually increase incompatibility in the long run, also probably
guarantees OSD compliance.

You may want to seriously consider adding GPLv3.

>> The article nevertheless notes that simple exercise of rights 
>>
>> granted solely by the licence implies acceptance of its terms.

In my opinion, it would be better not to state that use of the work
entails automatic acceptance, as use alone is not covered by copyright
law in most countries.

>> x Art. 11: Added a clause drawing attention to law that may apply,
>>
>> requiring that texts of software offered for download must state 
>>
>> certain information about the licensor, such as her name and address. 
>>
>> This is required by the European Directive on E-Commerce of June 12,
>>
>> 2000. Note that the article draws attention to this legal requirement
>>
>> but does not in itself make this requirement where such a legal
>>
>> requirement does not exist. 

First, I think that law is itself fairly draconian, and would have a
chilling effect if enforced.  See for instance the unofficial Debian
Dissident Test (http://people.debian.org/~bap/dfsg-faq.html), which
says, "Consider a dissident in a totalitarian state who wishes to share
a modified bit of software with fellow dissidents, but does not wish to
reveal the identity of the modifier..."

Second, I think you are restating (not just /referring/) to the
requirement in the license, because the license says one, "/must/ at
least provide to the public the information requested by the applicable
law regarding the identification and address of the Licensor"

>> x Art. 14,15: Adapted the provisions regarding competent court
>>
>> (Art. 14) and applicable law (Art. 15) to the European legal
>>
>> environment. Beyond drawing attention to (but not requiring where
>>
>> not applicable) the provisions of applicable law in European 
>>
>> jurisdictions...

It seems to me that, "This Licence shall be governed by the law of the
European Union country where the Licensor resides or has his registered
office ... This licence shall be governed by the Belgian law if the
Licensor, other than the European Commission, has no residence or
registered office inside a European Union country."

does indeed always impose European law (even when neither party resides
in the EU), which is not reasonable.

Aside from these issues, the license seems generally good, and could
probably be approved with some modification.

Matt Flaschen