Subject: Re: new license to review
From: bruce@perens.com
Date: 7 May 1999 05:07:35 -0000

Just some quick comments to get this started.

	Bruce

> You agree to ship to Foobar a file
> containing the Modifications (in a media to be determined by the
> parties), including any programmers' notes and other programmers'
> materials.  Additionally, You will provide to Foobar a complete
> description of the product, the product code or model number, the date
> on which the product is initially shipped, and a contact name, phone
> number and e-mail address for future correspondence.  Foobar will
> keep confidential all data specifically marked as such.

This provision, what has come to be known as an "odious reporting
requirement", has previously been objected to in other licenses, and has
subsequently been withdrawn by the license creators in the cases I know
of. To repeat the arguments I've used previously:

I suggest you substitute the approach taken by the APSL version 1.1: Rather
than require that you send them a copy of every modification, Apple now
requires that you register where any modifications you produce can be found.
See http://www.publicsource.apple.com/modifications.html . This has advantages
for both you and the recipient:

a. Developers can notify you _once_ and then produce modifications on a
   continuing basis, and you always know where to find them. This drasticaly
   lowers the overhead on distribution creators (like Debian and Red Hat)
   in that they need not, every time they revise a package or distribute a
   beta version, determine if the package contains any modifications that
   must be sent to someone due to a notification requirement. An
   all-volunteer distribution like Debian might be seriously encumbered if
   many vendors required notification after _each_ change.

b. You won't be deluged with submissions of software.
   Most Linux distributions would probably err on the excessive side and
   send you their entire systems (gigabytes in size) rather than stop to
   classify where the Larson code is in those distributions. Individual
   developers also have told me that they'd deal with this sort of
   notification clause by sending too much code.

c. A list of URLs is a lot easier for everyone concerned to read and make use
   of than a ton of unclassified patch files.

> Promotion by You of Foobar WebServer Mark. In consideration for the
> licenses granted by Foobar to You herein, You agree to promote the
> Original Code by prominently and visibly displaying a graphic of the
> Foobar WebServer mark on the initial web page of Your product that is
> displayed each time a user connects to it.

This provision was objected to when it appeared in the Zope license of
Digital Creations Inc., who subsequently withdrew it. The distributions I
consulted at the time (Red Hat [Marc] and Debian [various developers])
felt that the requirement for each user to actively modify their web site
to insert a badge, in order to be in compliance with the license, was an
undue hardship upon the user. It was also proposed that this was a violation
of the discrimination provision in OSD #5 and #6, in that it discriminates
against _use_ (not distribution) by web sites that refuse to carry
commercial advertising.

The Linux distributions consulted said that they would decline to distribute
software with that license provision whether or not it was deemed
OSD-compliant. When I communicated this to Digital Creations, they modified
their software to _automaticaly_ put a badge on the front page served with
their product, and asked the user in their license text to refrain from
removing the badge, but did _not_ compel them. This was deemed acceptable and
the Zope license was designated Open Source.

> No modifications to Server Identification Field. You agree not
> toremove or modify the Server Identification Field contained in the
> ResponseHeader as defined in Section 1.6 and 1.7.

This appears to be a restriction upon modification, in violation of OSD #4.

> BY CLICKING ON THE ``Register'' BUTTON ON THE REGISTRATION FORM, YOU
> ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET
> FORTH IN THIS AGREEMENT.  IF YOU DO NOT WISH TO ACCEPT THIS LICENSE OR
> YOU DO NOT QUALIFY FOR A LICENSE BASED ON THE TERMS SET FORTH ABOVE,
> YOU MUST NOT CLICK THE ``Registration'' BUTTON.

Is this part of the license? Does it effect sub-licensing?

IMO they could have used a previously-approved license but for the restraint
on modification of the server identification field, and the requirement to
add a badge to the web site. Both of these provisions are very questionable
under the OSD.

	Thanks

	Bruce

	Thanks

	Bruce