Subject: The IBM Public License
From: dlw <danw6144@insightbb.com>
Date: Sun, 15 Aug 2004 18:59:31 -0500

The IBM Public License supports the IBM legal division's reputation as
one of the finest legal departments in the World.

http://oss.software.ibm.com/developerworks/opensource/license10.html

Here are relevant copyright excerpts from their public license:

<<<
IBM Public License Version 1.0

THE ACCOMPANYING PROGRAM IS PROVIDED UNDER THE TERMS OF
THIS IBM PUBLIC LICENSE ("AGREEMENT"). ANY USE, REPRODUCTION
OR DISTRIBUTION OF THE PROGRAM CONSTITUTES RECIPIENT'S
ACCEPTANCE OF THIS AGREEMENT.

"Contribution" means:
a) ...
Contributions do not include additions to the Program which: (i)
are separate modules of software distributed in conjunction with the
Program under their own license agreement, and (ii) are not derivative
works of the Program.

"Contributor" means IBM and any other entity that distributes
the Program.

"Recipient" means anyone who receives the Program under this Agreement,
including all Contributors.

2. GRANT OF RIGHTS
a) Subject to the terms of this Agreement, each Contributor
hereby grants Recipient a non-exclusive, worldwide, royalty-free
copyright license to reproduce, prepare derivative works of, publicly
display, publicly perform, distribute and sublicense the Contribution of
such Contributor, if any, and such derivative works, in source code and
object code form.

I n addition, each Contributor must identify itself as the originator
of its Contribution, if any, in a manner that reasonably allows
subsequent Recipients to identify the originator of the Contribution.
 >>>

The the preceding paragraph:

"In addition, each Contributor must identify itself as the originator of
its Contribution, if any, in a manner that reasonably allows subsequent
Recipients to identify the originator of the Contribution."

is *the* saving grace for the enforcement of open source license terms.
It preserves legal identity in a chain of successors in contractual
privity. The "first sale doctrine" (sec. 109) only prevents enforcement
under copyright law by sec. 501 with respect to future recipients in
a transfer of ownership in a fixed medium. Contract enforcement under
common law is still available if "privity of contract" is preserved.

The Supreme Court held in QUALITY KING DISTRIBUTORS, INC., PETITIONER v.
L’ANZA RESEARCH INTERNATIONAL, INC. 535 US 135 (1998) :
<<<
"Under the 1976 Act, the comparable exclusive right granted in 17 U.S.C.
§ 106(3) is the right “to distribute copies … by sale or other transfer
of ownership.”8 The comparable limitation on that right is provided not
by judicial interpretation, but by an express statutory provision.
Section 109(a) provides:

“Notwithstanding the provisions of section 106(3), the owner of a
particular copy or phonorecord lawfully made under this title, or any
person authorized by such owner, is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the possession of
that copy or phonorecord… .”9

The Bobbs-Merrill opinion emphasized the critical distinction between
statutory rights and contract rights.10 In this case, L’anza relies on
the terms of its contracts with its domestic distributors to limit their
sales to authorized retail outlets. Because the basic holding in
Bobbs-Merrill is now codified in §109(a) of the Act, and because those
domestic distributors are owners of the products that they purchased
from L’anza (the labels of which were “lawfully made under this title”),
L’anza does not, and could not, claim that the statute would enable
L’anza to treat unauthorized resales by its domestic distributors as an
infringement of its exclusive right to distribute copies of its labels."
<<<

Any open source license that does not preserve this identity for
privity of contract purposes would be unenforcable under contract law
after first distribution. A legal party identity requirement such as
this might have saved the GPL , although enforcement would vary under
differing state law requirements. (The IBM license stipulates New York
State).

In SCO v. IBM, IBM attempts to save the GPL's lack of privity by calling
it a "conscious public covenant" or "public trust" because legal trusts
do not require privity:

 >>>
" 27. The Linux kernel is subject to the GPL as it is comprised of
programs and other works that contain notices placed by contributing
copyright holders permitting distribution under the terms of the GPL.
The Linux developers' public agreement to apply GPL terms expresses in a
binding legal form the conscious public covenant that defines the
open-source community -- a covenant that SCO itself supported as a Linux
company for many years. "
<<<

An enforcement as a "public trust" would constitute a generalized
"right against the world" and undoubtedly triggers preemption under sec.
301 of The Copyright Act.

Daniel Wallace