Subject: Re: Subscription/Service Fees - OSD Intent
From: Ian Lance Taylor <ian@airs.com>
Date: 28 Mar 2001 22:56:47 -0800

Eric Jacobs <eaj@ricochet.net> writes:

> My statement that Bob has all the rights which Andy has but does not
> have the requirement of distributing under the GPL is derived from
> David Johnson's argument about OSD #7 -- namely, that a recipient of
> Open Source software gains all of the rights that the distributor
> had with regard to the software, _without_ having to meet any of the
> requirements that the distributor did.

I'm sorry, I don't get it.  OSD #7 appears to me to say just what
David Johnson says that it says: the recipient gets the rights of the
person who gave him the software.  OSD #7 does not say that the
recipient has to meet any requirements.

> If Andy gives Bob a copy of the software, that does not mean that Bob
> should automatically be granted Andy's rights, _without_ meeting the
> conditions under which Andy obtained them.

Why not?

> Scenario 1
>   - Andy obtains a copy of a software program.
>   - Andy reads the license. The license states, in part, that it will
>     grant him rights to copy, modify, distribute and prepare derivative
>     works, under certain conditions. The conditions include a requirement
>     to pay a fee.
>   - Andy accepts the license. Andy is now granted those rights. Andy
>     has also now incurred an obligation to pay the fee.
>   - Andy gives a copy of the program to Bob. (Legally, as Andy has
>     been granted that right.)
>   - Bob reads the license. The license states, in part, that if he has
>     received his copy from somebody who was granted rights under this
>     license, Bob is also granted those rights.
>   - Bob accepts (or doesn't accept) the license. In case he accepts, he
>     does not have to pay a fee to copy, modify, distribute, or prepare
>     derivative works.
> 
> Scenario 2
>   - Andy obtains a copy of a software program.
>   - Andy reads the license. The license states, in part, that it will
>     grant him rights to copy, modify, distribute and prepare derivative
>     works, under certain conditions. The conditions include a requirement
>     that any derivative works of the software that Andy creates must be
>     licensed under the GPL.
>   - Andy accepts the license. Andy is now granted those rights. Andy
>     has also now incurred an obligation that any derivative work of the
>     software he should create must be licensed under the GPL.
>   - Andy gives a copy of the program to Bob. (Legally, as Andy has
>     been granted that right.)
>   - Bob reads the license. The license states, in part, that if he has
>     received his copy from somebody who was granted rights under this
>     license, Bob is also granted those rights.
> [Note: This license is not the GNU GPL, obviously.]
>   - Bob accepts (or doesn't accept) the license. In case he accepts, he
>     may prepare derivative works and license them under any license he
>     chooses.

As far as I can tell, your analogy relies on equating ``obligation to
pay a fee'' with ``obligation that any derivative works must be under
the GPL.''  But those are different cases.  Andy has a presumed right
to run the program.  Andy does not have a presumed right to copy a
program.  Copyright law restricts copying a program.  It does not
restrict running a legally obtained copy of a program.

I think your argument only holds up if you believe that Bob does not
have a right to run a legally obtained copy of a program.

It's clear that Bob does not have the right to arbitrarily distribute
a legally obtained copy of a program.  That's what copyright law is
all about.  It's not at all clear that Bob does not have a right to
run a legally obtained copy of a program.

> > 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. 
> 
> Whether running a program implicitly involves copying that is an
> exclusive right of the copyright holder is, of course, an issue that is
> debatable, and it is not what I am primarily interested in here. To
> save confusion, let us consider this:
> 
> ) A way to work around this is to provide a license which is an open 
> ) source license but which says that every time you _copy_ the program you 
> ) must pay the developer a dollar.

But that would violate OSD #1, so that license is not an open source
license.

> But whether or not shareware-with-source can be practically or legally
> enforced is not my main point. My main point is that OSD #7 cannot be
> sensibly construed as a criterion that a requirement-to-pay be waived
> for users to whom the software is redistributed, *without* also
> implying the waiver of other kinds of requirements, such as GNU
> GPL-style "viral" requirements.

I believe it can, if you believe that the recipient of a legally
obtained copy of a program always has the right to run it.  Some
people do believe it, probably includ Russ.  See also
    http://cr.yp.to/softwarelaw.html

I myself am uncertain, which is why I would be happier if the OSD had
an explicit statement that a recipient of a program was permitted to
run it.  But I think you need to tackle that explicitly, rather than
sidestepping it as you did in your note.

Ian