Subject: Re: Open Test License v1.1 rejection
From: Alex Rousskov <rousskov@measurement-factory.com>
Date: Wed, 18 Feb 2004 11:49:12 -0700 (MST)


On Wed, 18 Feb 2004, Ian Lance Taylor wrote:

> As can be seen form the comments, the problem is clause 3:
>
>     3. Publication of results from standardized tests contained within
>        this software (<TESTNAME>, <TESTNAME>) must either strictly
>        adhere to the execution rules for such tests or be accompanied
>        by explicit prior written permission of <OWNER>.

<good stuff snipped>

> The distinction between distribution and use is important.  A license
> based on copyright can't restrict the use of the software.  It can
> only restrict copying of the software.

I now better understand the difference and its importance. Thanks for
clarifying it to me!

> I think that you will need to remove any restrictions on the use of
> the software.  That means no restrictions on publishing test
> results.

Understood. Please check whether the following modification of
Apache-v1.1 clauses would pass the "no use restrictions" test.

The original and OSI-certified Apache clauses say:

	4. The names "Apache" and "Apache Software Foundation"
	must not be used to endorse or promote products derived
	from this software without prior written permission. For
	written permission, please contact apache@apache.org.

	5. Products derived from this software may not be called
	"Apache", nor may "Apache" appear in their name, without
	prior written permission of the Apache Software
	Foundation.

Let me modify that a little. I will replace
	"Apache" and "Apache Software Foundation"
with a
	standardized tests names (<TESTNAME>, <TESTNAME>)
template:

	3a) The names of the standardized tests contained within
	this software (<TESTNAME>, <TESTNAME>) must not be used
	to endorse or promote products derived from this software
	without prior written permission.

	The names of these standardized tests may not appear in
	derived product names without prior written permission. For
	written permission, please contact <OWNER>.

The above modification seems identical to the original as far as OSI
certification is concerned. Is it not? Did I introduce any "use
restrictions" at this step compared to the Apache license?

Assuming I did not, let me combine "must not endorse" and "may
not name" sentences into one:

	3b) The names of the standardized tests contained within
	this software (<TESTNAME>, <TESTNAME>) must not be used
	to name, endorse, or promote products derived from this
	software without prior written permission. For written
	permission, please contact <OWNER>.

Did I introduce any "use restrictions" at this step?

Assuming I did not, let me replace "derived products" with "derived
works" since "product" is difficult to define. I will also explicitly
include "published test results" in the derived works. A published
test result is a derived work, right?

	3c) The names of the standardized tests contained within
	this software (<TESTNAME>, <TESTNAME>) must not be used
	to name, endorse, or promote works derived from this
	software (including published test results) without
	prior written permission. For written permission,
	please contact <OWNER>.

This was probably the most "risky" step. Does "derivative product"
mean something other than "derivative work" from legal point of view?
Did I introduce any "use restrictions" at this step?

Assuming I did not, let me _relax_ the above requirement for written
permission. I will make written permission required only if tests are
not executed using standardized rules:

	3d) The names of the standardized tests contained within
	this software (<TESTNAME>, <TESTNAME>) must not be used
	to name, endorse, or promote works derived from this
	software (including published test results) without
	either prior written permission or strict adherence to test
	execution rules. For written permission or execution rules,
	please contact <OWNER>.

Since (3d) does not add any restrictions to (3c), I hope it does not
introduce any OSI certification problems if (3a-c) versions did not.

> I should add that I understand why you want the restrictions.  But
> there are many things which people want which do not fall under the
> actions permitted by open source.

Yes, of course. I hope that by starting with an already OSI-approved
license and applying what seems to be OSI-irrelevant changes, I can
arrive at something OSI-approvable. Did I make any mistakes in the
above derivation? Is (3d) clause compatible with OSI requirements and
open source spirit?

If it is, I will resubmit the license with (3d). If it is not, I would
love to know where I went wrong when reshaping OSI-approved Apache
v1.1 clauses.

Thanks a lot,

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