Subject: RE: discuss: SHPTRANS License Template
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Thu, 1 Aug 2002 17:07:54 -0700

Here are my comments on the SHPTRANS License Template (as modified):

* You grant permission to "use, copy, modify, and distribute the
accompanying software."  Do you also intend to grant permission to
distribute the modifications?  Is the grant perpetual?  Sub-licenseable?
Royalty-free?  

* In paragraph (a) you use the term "and/or".  Which do you mean, "and"
or "or"?  Do you intend to give the distributor a choice?

* In paragraph (b) you use the phrase "substantial portions".  How large
a portion is substantial?  Is it a matter of size or importance of the
portions?

* In paragraph (c) you confuse the very different concepts of
"derivative work" and "combined work".  The second sentence starts with
the word "Thus" but it isn't a logical conclusion from the first
sentence.  (Simply because a work is a derivative work doesn't
*necessarily* bring it under the terms of the original license, although
I understand you want it to be so in this case.)  What "other
agreements" are you referring to in the second sentence, and why are
those other agreements of any concern to you as long as the licensee
satisfies the terms of *this* license?

* Concerning paragraph (e), it is one thing not to allow
misrepresentation of a derivative work as the original, and quite
another to require the the original be identified as the basis for the
derivative work.  Given the poor quality of some derivative works, I'm
not sure I'd want the original to be so identified.  If by this clause
you're attempting to state obligations regarding trademark, I think you
should do so in more precise language.

* I don't understand the legal significance of the conclusory sentence
in the first un-lettered paragraph.  That statement is probably true
regardless of what you were to write in this license agreement.  The
second sentence, however, because it is a restatement of part of
paragraph (c), leaves you open to confusing interpretation.  (The GPL
has also been criticized for defining things in subtly separate ways in
separate sentences.)

* In the termination sentence, you don't say what the consequences of
termination are.  Would a licensee whose license is terminated have to
stop using the software, even though use of software requires the making
of a copy (in memory)?  Is the license sub-licenseable?  

* In the warranty disclaimer you refer to the "software and the
accompanying materials."  In the first paragraph of the license you
define "software" so as to encompass those materials.  By the way, if
you define a term like that, you should capitalize the word "Software"
and use it as a defined term thereafter.  Be consistent.

Because a "copyleft" (or as I prefer, "reciprocal") license places
onerous burdens on a licensee, it is essential that the terms of the
license be clear and unambiguous.  You don't want a licensee to escape
the license by proving to a court (where the judge probably doesn't know
what software is!) that the license is ambiguous.  If you want your
license to be more widely adopted, you should probably also think more
carefully about other legal issues relating to software licensing.  I
tried to address many of those issues in the Open Software License,
about which you already gave me good suggestions.  You might find it
useful to evaluate whether a license such as the OSL would better suit
your purpose, or if not, explain for your readers why those other
licenses are not suitable.

/Larry Rosen

> -----Original Message-----
> From: Bruce Dodson [mailto:bruce_dodson@hotmail.com] 
> Sent: Thursday, August 01, 2002 4:13 PM
> To: Russell Nelson; license-discuss@opensource.org
> Subject: Re: discuss: SHPTRANS License Template
> 
> 
> I made a revision to the SHPTRANS License Template.
> 
> http://gisdeveloper.tripod.com/shptrans_license_template.html
> 
> The changes are highlighted in the HTML.
> 
> 
> 
> For those looking at the text version which Russ posted:
> 
> I reversed the order of the first two conditions, got rid of 
> the required "brief notice", and replaced it with a required 
> pointer to the complete license. Before, the notice distilled 
> to "This work is licensed under the license terms for this 
> work, which should have accompanied this work."  That was 
> circular and, in a product using libraries under various 
> licenses, probably ambiguous.
> 
> Also, in the description of what I mean by "complete license 
> agreement" I reversed the items "disclaimers and provisions" 
> to "provisions and disclaimers" - not for any legal reason; 
> it just sounds better that way.
> 
> 
> The first two conditions were:
>    a. The above copyright notice must appear in all copies or
>       substantial portions of the software. The copyright notice must
>       be followed immediately by the complete text of this license
>       agreement, or by the following brief notice:
> 
>         "This work is distributed on an "as is" basis without warranty
>         of any kind. For more information, and to understand your
>         rights and obligations, please refer to the complete license
>         agreement for <software short name>, which should have
>         accompanied this work. The same license agreement applies to
>         derivative works.
> 
>         This work may also be redistributed and/or modified under the
>         terms of the GNU General Public License, version 2 or 
> any later
>         version, as published by the Free Software Foundation."
> 
>    b. A verbatim copy of this license agreement (including the above
>       copyright notice, this permission notice, and the following
>       disclaimers and provisions) must appear in the documentation
>       and/or in other materials accompanying the software.
> 
> 
> They are now:
>    a. A verbatim copy of this license agreement (including the above
>       copyright notice, this permission notice, and the following
>       provisions and disclaimers) must appear in the documentation
>       and/or in other materials accompanying the software.
> 
>    b. The above copyright notice must appear in all copies or
>       substantial portions of the software.  The copyright notice
>       must be followed immediately by the complete text of this
>       license agreement, or by a pointer stating where the complete
>       license is found.
> 
> 
> regards,
> bruce
> --
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> 

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