Subject: RE: RPSL pre-discussion
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Mon, 5 Aug 2002 04:40:33 -0700

Rob,

Here are some comments on the RPSL:

* Your license would be more useful generally if you changed the first
sentence ["This License applies to any program or other work which
RealNetworks, Inc. ("RealNetworks") makes publicly available and which
contains a notice placed by RealNetworks identifying..."] to read "This
License applies to any program or other work which contains a notice
identifying...."  Why shouldn't other companies be allowed to use the
RPSL?  Then, define "Licensor" and let the license be general purpose.

* Section 1.1 is rather limiting.  I'm particularly saddened [:-)] by
the exclusion from the list of the Jabber Open Source License, which I
wrote to be clearer and more understandable than the MPL 1.1.  Why did
you exclude the Common Public License, the IBM Public License, and
several others?  Is there a characteristic of the approved licenses that
you're trying to identify?  Why would it not be up to the licensee to
ensure license compatibility?

* To make section 1.2 more general, 1.2(a) should refer to patent grants
from the *Licensor*.  It also seems the grant in (a)(i) is too narrow,
since you want to permit people to use those patent rights to create
derivative works.  Otherwise, the grant is largely useless in the open
source community.  Here's how I write that in the Open Software License:

   Licensor hereby grants You a world-wide, royalty-free,
   non-exclusive, perpetual, non-sublicenseable license,
   under patent claims owned or controlled by the Licensor
   that are embodied in the Original Work as furnished by
   the Licensor ("Licensed Claims"), to make, use, sell 
   and offer for sale the Original Work.  Licensor hereby
   grants You a world-wide, royalty-free, non-exclusive,
   perpetual, non-sublicenseable license under the 
   Licensed Claims to make, use, sell and offer for 
   sale Derivative Works.

* Section 1.2(b) appears to grant patent rights from the licensee
("You") even when he/she doesn't deploy his Modifications.  That's not
fair.    Perhaps I don't understand what you mean by "in the case where
You are the grantor of rights...."  It also suffers from the same
deficiencies as I noted in 1.2(a).  

* In section 1.3, to be a Contributor, doesn't the person also have to
Deploy his contributions?  Simply because I modify a program for my own
personal use, I may not intend to give those modifications to you or
anyone else. 

* In section 1.6, I am troubled by the inclusion of the concepts of
"containing" and "combination" in the definition of Derivative Work.
These may make the definition so broad as to bring under its scope the
packaging of your program with other programs not meant to be covered by
this license.  The concept of "Derivative Work" is is one of the most
difficult to get across in any open source license; even the GPL fails
to make that clear.  I fear you haven't quite gotten it right either.

* I very much like the definition of Externally Deploy in section 1.7.
It is succint and clear.  I'm going to try to incorporate that concept
into my licenses.  [I have since received some feedback that is critical
of restricting such deployment in an open source license.  Maybe we
should just watch the commentary in license-discuss and both of us try
to decide how far we can go on this.]

* I'm trying to reconcile your definition of Modifications in section
1.9 with the earlier definition of Derivative Work.  Do you mean those
to be two ways to define the same concept?

* In section 1.10, once again, I note the reference to RealNetworks
rather than Licensor, which limits the general applicability of this
license.  

* In section 1.12, you refer to forming "larger applications including
Derivative Works."  What is a "larger application?"  Is it different
from a Derivative Work?  How does it fit within the definition in
section 1.6?

* The last sentence of 1.13 is unclear.  Are you referring to "all
cases" of Runtime Linking?  And do you mean to say that one can't use a
combination of runtime linking and static linking?

* In the first sentence of 2, you imply that downloading or using
Covered Code is tantamount to acceptance of the License.  I'm aware of
no court that has ever made such a broad statement.  The issue of
license acceptance deserves a section of its own.  Here's how I
addressed it in the Open Software License:

   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 is similar to what the GPL says.  I'm not sure that solves the
problem either, but at least it expresses what the court seemed to hold
in the Sun v. Microsoft case.

* In section 2, do you expect the license to be sublicenseable?  If so,
how will you deal with the privity issue?  If not, then you must make it
clear that all licensees obtain their license to the Original Code
(including both copyright and patent licenses) from the Licensor.
Hardly anyone wants their patents licenses to be sublicenseable.

* The grant-back patent license in section 3 may be too broad.  For one
thing, as I noted earlier, there should be no grant-back license for
patent rights except for *deployed* modifications.  Merely making a
modification for personal use doesn't not require a grant-back.  Second,
this grant-back is worded as a sublicenseable patent license, which is
generally unacceptable to companies that want to retain privity with all
licensees to enforce their own patents.  

* Once again, in section 4, you subtly modify the definition of a
Derivative Work by using the word "combining" and then introducing the
new concept of "integrated product."  Then you use the phrase "larger
works" which is perhaps the same as "larger applications" from 1.12.
Mere "aggregation" doesn't do it, but "integration" seems to.  I'm no
longer sure just what you intend by the term Derivative Work!  This is a
complicated problem that would probably benefit from us talking directly
rather than me trying to write my thoughts out in email.  

* The last sentence of section 5 raises difficult problems with the GPL
and LGPL.  Take a look at section 7 of the GPL, in particular.  Rather
than reserve for yourself "sole discretion" to decide the scope of your
patent licenses, it would be best to define that scope up front.
Certainly you can grant a broader license in the future.

* How is the licensee supposed to obtain a [sub]licensee's "agreement"
to the Additional Terms described in section 6?  What if he doesn't?
Why do you care?

* Does the last sentence of section 7 mean that someone can't create a
derivative work and license it under a license that is merely
"compatible" with this license?  No derivative works licensed under the
GPL, for example?  Is this still compatible with section 4.2?

* In section 8, why can't RealNetworks provide a warranty that it owns
the copyrights to the Original Code?  If it cannot, is your licensee
accepting a risk he/she shouldn't accept?  Here's how I wrote the
warranty in the OSL:

   LICENSOR WARRANTS THAT THE COPYRIGHT IN AND TO
   THE ORIGINAL WORK IS OWNED BY THE LICENSOR OR THAT
   THE ORIGINAL WORK IS DISTRIBUTED BY LICENSOR UNDER
   A VALID CURRENT LICENSE FROM THE COPYRIGHT OWNER.
   EXCEPT AS EXPRESSLY STATED IN THE IMMEDIATELY
   PRECEEDING SENTENCE, THE ORIGINAL WORK IS PROVIDED
   UNDER THIS LICENSE ON AN "AS IS" BASIS, WITHOUT
   WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING,
   WITHOUT LIMITATION, THE WARRANTY OF NON-INFRINGEMENT
   AND WARRANTIES THAT THE ORIGINAL WORK IS MERCHANTABLE
   OR FIT FOR A PARTICULAR PURPOSE.  THE ENTIRE RISK AS
   TO THE QUALITY OF THE ORIGINAL WORK IS WITH YOU.
   THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL
   PART OF THIS LICENSE....

* A further point in section 8:  Why would you need to provide any
warranty statement at all for the Covered Code (as opposed to the
Original Code) when you're not the one creating or distributing it?
Your license should extend simply to the Original Code.  If someone
creates a derivative work, that person may be required to license that
derivative work under the same license, but then he/she is the licensor
of his/her own "Original Code."  That's one reason that I like it better
when a license imposes reciprocity obligations and uses the term
"Licensor" rather than have it always appear to be "RealNetworks" that
is doing the licensing.  

* Is a liquidated damages amount of $10.00 (in section 9) going to be
acceptable in every jurisdiction?

* Why a section 10 when section 5 seems to say the same thing?

* Section 11 is an example of a provision that is only needed because
you've made the license to derivative works extend from you to the
licensee.  That is not a clean reciprocal license.  You (RealNetworks)
should only license your original work, and then require creators of
derivative works to license their own works under the same license in
whey THEY, not you, are the "Licensor."  That's another reason to not
have RealNetworks be the name of the licensor in this license.

* In section 12.1(a), "becoming aware" is a lot different "are told by
us."  I'm not sure I'd ever agree to an automatic termination provision
where my own subjective awareness became a subject of discovery.

* I'm not fond of section 12.1(d).  That's a free license for you to
infringe any of your licensee's patents.  I am willing to live with a
defensive termination provision that takes effect if your licensee sues
you for infringement of any patent relating to the Original Work.

* Section 12.2 finally deals with the complex issue of sublicensing, but
in an almost off-hand way.  Why should you permit sublicensing at all?
Refer to my comments on sections 2 and 6, above.

* What makes you think that a court would enforce the last sentence of
section 13.4 in this unexecuted license?  I suggest you exercise a
degree of caution in drafting this license that would be appropriate if
the court will construe the language against RealNetworks.

* Minor point: In 13.5(a), should the phrase be "shall be enforced"
rather than "will be enforced"?  Similarly, should it be "shall continue
in full force and effect?"

* The severability provision in 13.5(b) is a little harsh.  If a court
rules against you, I could understand your halting any further
distribution or licensing of the Original Code.  But to require your
users to discontinue any use and destroy all copies is quite draconian.

* Section 13.7 is problematic.  If your Original Code cannot be exported
to certain nations because of Dept. of State or DOD restrictions, you
may simply have to include a notice separate from the license.  OSI has
long held that article 5 of the Open Source Definition ["No
Discrimination Against Persons or Groups"] prevents such explicit
restrictions on export.  Here's the relevant portion of the commentary
to OSD #5:

   Some countries, including the United States,
   have export restrictions for certain types of
   software. An OSD-conformant license may warn
   licensees of applicable restrictions and remind
   them that they are obliged to obey the law;
   however, it may not incorporate such restrictions
   itself.

* Is the notice in section 13.8 regarding parties from Quebec requesting
that this license be drafted in English in fact true.  Which license has
requested anything?

* The "please obtain a copy of the License ... and read it before using"
language of Exhibit A has been deemed by some courts to be insufficient
to bind anyone to the license.  It is merely an invitation, with no
assurance that anyone has actually done so.

Please contact me directly to discuss any of these points further.

/Larry Rosen
lrosen@rosenlaw.com
www.rosenlaw.com
707-485-2142
fax: 707-485-1243

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