Subject: OSD Model Code -- Article 1 (Free Distribution)
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Sun, 19 Jan 2003 11:26:15 -0800

 Sun, 19 Jan 2003 11:26:15 -0800
Rod,

In your commentary (1-1) on Article 1 of the OSD ("Free Distribution")
you reference several cases on copyright misuse.  That confuses me.  The
copyright misuse doctrine has no application for that article of the
OSD.

Article 1 now reads as follows:

   "The license shall not restrict any party from selling or
   giving away the software as a component of an aggregate 
   software distribution containing programs from several
   sources.  The license shall not require a royalty or
   other fee for such sale."

I think this Article really means: 

   "The license must permit all licensees to make copies of
   the software without payment of additional royalties to 
   the licensor.  The license cannot restrict licensees 
   from either selling or giving away those copies."

How can this ever be copyright misuse, since this provision imposes no
restrictions whatsoever on downstream licensees?  There is merely a
self-imposed limitation on the licensor's right to collect royalties for
copies made by those licensees, a limitation he voluntarily accepted by
deciding to license his software as open source.

With my rewording, there's also no need for the confusing term
"aggregate software distribution."  We only need to rely on the
definition of the term "copies" in the Copyright Act.  17 USC 101.  

Should we reword the OSD where appropriate to achieve clarity?

/Larry Rosen

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