Subject: RE: OSL Version 1.0 dated 8/2/2002
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Fri, 2 Aug 2002 13:40:31 -0700

Section 117 of the Copyright Act allows the copying of a computer
program "as an essential step in the utilization of the computer
program."  That doesn't mean that one cannot contract that right away.
I would not suggest that any open source license do so.  But an open
source license can -- unless I'm misreading the OSD -- provide that
anyone who makes such copies and distributes them provide access to the
source code.  And such a contract is NOT against the Copyright Act.  

As I suggested earlier, I honestly don't much care whether someone makes
a copy of an open source program.  What many open source software owners
care about is when they create derivative works, use those derivative
works to make money by selling the *use* of the program (perhaps by
providing an Internet service), and then not return the source code so
that everyone else can benefit from those modifications.

Legally, I can prevent that result through contract, and section 117 of
the Copyright Act doesn't prevent me from doing so.

/Larry Rosen

> -----Original Message-----
> From: Ken Arromdee [mailto:arromdee@rahul.net] 
> Sent: Friday, August 02, 2002 12:59 PM
> To: license-discuss@opensource.org
> Subject: RE: OSL Version 1.0 dated 8/2/2002
> 
> 
> On Fri, 2 Aug 2002, Lawrence E. Rosen wrote:
> > > Someone could refuse to accept your license (thus also
> > > refusing to accept your definition of distribution).  If he 
> > > refuses to accept your license, he could then Externally 
> > > Deploy the code without being bound by the license. This 
> > > provision accomplishes little.
> > Are you suggesting that the following provision in the OSL 
> won't work 
> > to prevent the copying that is essential for use of a 
> software program?
> >   8. Acceptance and Termination.  Nothing else but this
> >   License (or another written agreement between Licensor
> >   and You) grants You permission to create Derivative 
> >   Works based upon the Original Work, and any attempt
> >   to do so except under the terms of this License 
> >   (or another written agreement between Licensor and
> >   You) is expressly prohibited by U.S. copyright law,
> >   the equivalent laws of other countries, and by
> >   international treaty.  Therefore, by exercising any
> >   of the rights granted to You in Section 1 herein,
> >   You indicate Your acceptance of this License and all
> >   of its terms and conditions.  This license shall
> >   terminate immediately upon Your failure to honor
> >   the proviso in Section 1(c) herein.
> 
> Yes, I'm suggesting exactly that.  Copying of the program 
> into memory in order to run it is permitted by law.  The user 
> may therefore do so without accepting the license.  The 
> clause above says you can't make derivative works without 
> accepting the license, not that you can't make copies.
> 
> (And even if you argue that copies are derivative 
> works--IANAL, but I don't know if you could get away with 
> that--that would simply mean that that clause is wrong.  
> Section 117 of the US copyright law lets you copy the program 
> into memory in order to use it.  If you're going to consider 
> that a derivative work, then yes, something else *does* let 
> you make derivative works.)
> 
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> 

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