Subject: RE: Strange clauses in the Twidroid license
From: "Joe Bell" <joe.bell@prodeasystems.com>
Date: Tue, 8 Jun 2010 16:30:53 -0500

 Tue, 8 Jun 2010 16:30:53 -0500
-----Original Message-----
From: martin.vilcans@gmail.com [mailto:martin.vilcans@gmail.com] On Behalf Of Martin
Vilcans
[deleted]

> Finally, regarding their Infringement clause, given the commercial
> nature of the license, it is not surprising and is actually a benefit to
> licensees.  It is basically saying that if for some reason or another it
> is determined that the software somehow infringes on another third
> party's rights that they will at their discretion supply to you, the
> user, a way to continue using the infringing software (this could be
> interpreted to mean they arrange with the third party that right),
> supply you with a version that is not infringing, or barring those two
> options, provide a refund for any license fees you have paid (covering
> the corporate version of the license).  Note the phrase "without
> obligation and at its sole discretion" - this is somewhat troubling,
> though there may be legal precedent to show that they are compelled to
> provide one of these options (one would have to consult a lawyer on this
> one).

>>One might wonder what kind of infringement they are referring to. It
>>could be anything of course, not related to copyleft.

[JAB] Certainly, but consider also that lawyers rather than developers wrote the license.
 Depending on the lawyer you could have a simple license or one that attempts to cover
all possibilities real or contrived.  Compare this also to the Sun Community Source
License (also, not an open license):

--
7.1.  Infringement.  Should any of the Original Code, Upgraded Code, TCK or Specifications
("Materials") become the subject of a claim of infringement, Original Contributor may,
at its sole option, (i) attempt to procure the rights necessary for You to continue
using the Materials, (ii) modify the Materials so that they are no longer infringing,
or (iii) terminate Your right to use the Materials,
immediately upon written notice, and refund to You the amount, if any, having then actually
been paid by You to Original Contributor for the Original Code, Upgraded Code and TCK,
depreciated on a straight line, five year basis.
--

On the surface their infringement clause looks like a rework of the SCSL infringement
clause.

>>The weirdest part is of course "Under no circumstances shall source
>>code of Twidroid be made available to you by tomatic." I can't think
>>of a reason to put that clause in the license except if trying to
>>avoid a copyleft license.
[JAB] The Android platform's rise in popularity is due (in my opinion) in large part
because it is open.  If I were an Android developer and had access to a large number
of tools and applications with free (or open) software licensing terms, I might assume
(reasonably or otherwise) that everyone else developing Android applications used the
same free/open model.  Perhaps in this case tomatic is making it clear that they're
source isn't available to head off any assumptions.   

That being said, it is a bit odd since the download package is a binary and the license
notes 'machine readable object code' at the outset.


Martin



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