Subject: Re: For approval: ENCUL
From: Chuck Swiger <chuck@codefab.com>
Date: Sat, 24 May 2003 20:17:50 -0400

My first significant dispute re: copyright involved a program called 
Angband back in 1993?, which was under the following license by Robert 
A. Koeneke (yes, one sentence):

"This software may be copied and distributed for educational, research,
and not for profit purposes provided that this copyright and statement
are included in all such copies."

Someone wanted to take this code, make changes and resell the result as 
a commercial product, without making those changes available to the 
maintainer or other authors of Angband.  Robert and I objected, 
successfully.

Part of my intent in writing ENCUL was to blend the spirit of the above 
license with the BSD license, while also providing the users of the 
software with as much or all of the benefits and freedoms of "open 
source" as I can.  In particular, I want to make sure that anything I 
license under these terms will end up being completely open source, even 
if I choose to "make money", "charge a royalty", etc for a period of 
time that I, as the author, choose.

Mark Rafn wrote:
[ ... ]
* 3. Users of this Software agree that any legal matters pertaining to the
*    Software or this License acknowledge the right of the author(s) to 
select
*    a local "court of appropriate jurisdiction" and have any such matters
*    adjudicated under the laws of the author's country, state, or province.
[ ... ]
> This is the first time I've ever seen a license that doesn't specify the
> jurisdiction up front or leave it unstated, but simply allows the licensor
> to use whatever his home court is when a dispute arises.

One intent is to "allow the licensor to use whatever his home court is 
when a dispute arises", if the author/licensor so chooses.  Right now, 
I'm in NYC, NY.  If I get into a legal dispute with someone in 
Antartica, I want them to show up in NYC.  Specifying the jurisdiction 
in advance would work fine for this case, agreed.

However, suppose that I move to Chicago, IL and then get into a legal 
dispute with somebody back in NYC, NY over the licensed software.  As 
the author, I would want to have the choice of having that dispute be 
considered in IL, not NY.

> It sounds like that's not your intent, and you mean to specify the 
> jurisdiction in advance for each use of this license.  This could be made 
> MUCH clearer in the license.

Why would an author want to simplify the task of someone-- a lawyer 
representing a user of the software, say-- figuring out where any 
prospective legal action would be held?

[ ... ]
> It's highly doubtful that inclusion of this clause in your license will 
> have ANY effect on whether the RIAA chooses to pursue contributory 
> infringement action agaist you.  You can, to some extent, choose the 
> jurisdiction under which you may sue infringers of your copyright, but 
> that's the limit of what's possible.

Strike my example; it's probably not a direction that is useful to take.

>> Furthermore-- unless the author has chosen to make the software 
>> available under other license terms-- the user of the software has the 
>> right to do so (ie, use the software) only under the terms of the 
>> license.
> 
> I think this is false.  Absent a contract (which some claim a shrink-wrap
> "EULA" is), I do not need copyright permission to use legally-acquired
> software in any way I choose.  I don't have the right to distribute or
> create derived works, but use is simply not restricted by copyright law.

Use is not restricted by copyright law.  I don't believe in 
click-wrapped licenses constitute a contract, either.  I need to 
substitute "redistribute" for "use" both in my thinking and in my 
writing.  I think.  :-)

>>Being able to legitimately claim that your software forbids 
>>users from "commercial use", "reselling for profit", or however one 
>>wishes to phrase the notion, has relevance.
> 
> Restricting use requires a contract.  Copying and distributing/selling are
> restricted by copyright, and can only be done if the license grants 
> permission.

OK.

>>> Note that this license grants no permission to create or distribute
>>> derived works.  OSD#3 requires this.
>>
>> Is the BSD license OSI open source?  How does it satisfy definition 3?
> 
> 
> It starts with "Redistribution and use in source and binary forms, with or 
> without modification, are permitted".

So I should add a "with or without modification clause" to the first 
paragraph.

[ ... ]
> B is preferable if the software has any value X years later (and it likely
> will).  Of course, people will remind the author of his promise if this is
> true.  I would not recommend giving up license clarity to achieve this
> aim, however.  Also, I would not expect any of the benefits of open source
> software in the meantime (inlcuding PR benefits).

That's okay; I don't do sales.

Heh.  I once got into a fairly serious argument with a salesguy, who 
told me the way you get and keep customers is the motto written on 
Macy's or some such famous store: "the customer is always right".  I 
told him he was wrong: the facts are always right, not that I make any 
particular claims to being unbiased or able to judge "fact" perfectly.

-- 
-Chuck


--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3