Subject: Re: Subscription/Service Fees - OSD Intent
From: Ian Lance Taylor <ian@airs.com>
Date: 28 Mar 2001 20:51:43 -0800

Eric Jacobs <eaj@ricochet.net> writes:

> David Johnson <david@usermode.org>:
> 
> > 
> > It may certainly be possible to have a registration fee for Open Source 
> > software. I am not denying that. However, until such a time as the 
> > registration fee is paid, the software cannot be considered Open Source. 
> > If a
> > registration fee were allowed in an Open Source license, then if Andy 
> > has
> > paid the registration fee, then gives the software to Bob, Bob does not 
> > have to pay the registration fee, since all the rights attached to the 
> > Andy's copy of the software transfer to Bob (#7).
> 
> It is this sort of illogical argument that will prevent this issue from
> ever coming to rest. Let me offer an analogy.
> 
> ) It may certainly be possible to have a [requirement that derivative works
> ) be licensed under the GPL] for Open Source software. I am not denying
> ) that. However, until such a time as the [requirement that derivative
> ) works be licensed under the GPL] is [met], the software cannot be
> ) considered Open Source. If a [requirement that derivative works be
> ) licensed under the GPL] were allowed in an Open Source license, then
> ) if Andy has [met the requirement by distributing his derivative work
> ) under the GPL], then gives the software to Bob, Bob does not have to
> ) [meet the requirement to distribute derivative works under the GPL],
> ) since all the rights attached to the Andy's copy of the software
> ) transfer to Bob (#7).
> 
> Plainly, this is not what #7 means.

Argument by analogy is always tricky.  In this case, I don't think
your analogy is correct.

Your analogy presumes a scenario in which Andy has a legally obtained
copy of the source but is not under the requirement that derivative
works be licensed under the GPL.  That is implied by your statement
that Bob has all the rights which Andy has but does not have the
requirement of distributing under the GPL.

Here is my interpretation of David Johnson's point.  If Andy has a
copy of a program under an open source license which requires paying a
license fee, and Andy pays that license fee, and Andy distributes the
program to Bob, then by OSD #7 Bob has all the rights that Andy has.
If Andy has the right to run the program, then Bob also has the right
to run the program.

If we apply your analogy to this, you are quite correct that if Andy
has a copy of a program under an open source license which does not
require redistribution under the GPL, and Andy distributes the program
to Bob, then Bob is not require to redistribute under the GPL.  But
that argument proves nothing interesting.

A way to work around this is to provide a license which is an open
source license but which says that every time you run the program you
must pay the developer a dollar.  This gets back to the fact we've
discussed before, which is that the OSD does not clearly state that
the recipient is permitted to run the program.  The last time this was
discussed, Russ Nelson (who is on the OSI board) said this:

| If you have legally received a copy of a program (and
| OSD #1 guarantees the right of the person giving you a copy to do so),
| you are free to use it or not, as you wish.  Copyright law only
| restricts copying.  You could only restrict the activities of a
| *recipient* if you could require them to execute a license, but OSD #7
| prohibits that.

Ian