Subject: Re: For Approval: German Free Software License
From: Chuck Swiger <chuck@codefab.com>
Date: Tue, 23 Nov 2004 15:57:21 -0500

Hello, Christiane & Axel:

Thanks for your submission of the GFSL.

Dusch, Christiane wrote:
>>Preamble
>>
>>Software is more than a mere economic asset. It is the technical
>>foundation of the information society. Therefore, the issue of the
>>public share in software is of particular importance. Conventionally
>>licensed computer programs are distributed in object code form only,
>>and the user is not entitled to modify or pass on the program to
>>third parties. The license model for Free Software (synonym "Open
>>Source Software"), however, grants comprehensive rights in the
>>handling of the program.

Although the terms are close in meaning, neither the Free Software Foundation 
nor the OSI board would consider "free software" and "open source software" to 
be synonyms.  For example, the OSI board has approved some licenses which are 
not compatible with the GPL's definition of "free software".

The rest of the preamble which follows this first paragraph strikes me as 
well-written, but I would attempt to revise the above like so:

"...Computer programs with proprietary licenses are often distributed in
object code form only, and the user is not entitled to modify or pass on the 
program to third parties.  The license models for Free Software and for Open 
Source Software, however, grant users more comprehensive rights to the program.

The German Free Software License is based on these license models.  The GFSL 
gives you the right to use the program in a comprehensive manner.  You are 
allowed to modify the computer program..."

>>Section 0 Definitions
>>Documentation: Description of composition, architecture and/or
>>structure of the programming process and/or functionalities of the
>>program, irrespective of whether they were done in the Source Code
>>or separately.

Documentation also includes things like user guides, README's, FAQ's, and 
other information which is oriented towards end-users who are not developers. 
  You might want to list these first, even.  :-)

[ ... ]
>>Public/publicly: Not solely directed towards a certain group of
>>people who have a personal connection to each other or are
>>associated through their affiliation with a legal person or public
>>organisation.

This strikes me as a complicated and non-intuitive definition of "public". 
Doesn't applicable law already have a well-established meaning for this term?

>> Making Publicly Available: The public distribution of the Program in
>> an immaterial form, in particular, by making it available for
>> download in data networks.

Please note that the FSF is willing to ship their software on tape or CD-ROM 
formats.  If I make the GFSL software available in a material form by 
reselling it on a CD to the public at large, this license probably sstill 
hould cover such a situation.  :-)

You might find the phrase "public redistribution" more useful to you.

>> Entitled Person(s): The author(s) or other holders of the exclusive
>> right to use for the Program.

The OSD recognizes that the authors of software do have some additional rights 
and may impose some reaonable restrictions (cf. OSD #4 "Integrity of The 
Author's Source Code"), however:

The notion that the authors/holders have exclusive right to use the program 
violates OSD #5.  If the software is to be open source, all users need to be 
granted the same rights to use and modify the software.

>>Distribution: The public passing on of material copies to third
>>parties, in particular, onto storage devices or in connection with
>>hardware.

One is also redistributing the software if you pass the software on in 
private, say to your relative or to another member of your company.

I believe your intent is to enable people to change the software for their 
private use without making their changes public, but require the source code 
to be made available when public redistribution, so it would be helpful to 
clarify these terms a bit.

[ ... ]
>>Section 7 Liability and Warranty
>>(1) The Entitled Persons are only liable for conflicting third-party
>>rights if they were aware of such rights without informing you.
>>
>>(2) Liability for errors and/or other defects in the Program shall
>>be governed by agreements concluded between you and the Entitled
>>Person beyond the scope of this License or, if no such agreement
>>exists, by the pertinent statutory provisions.

If I modify a program covered by the GFSL, and I want to redistribute my 
version without any warranty (ie, the standard DISCLAIMER found in the BSD and 
other licenses which disclaims liability since the software is being made 
available free of charge), may I do so?

Can a project like FreeBSD, NetBSD, etc, or a Linux distro like Debian, 
Redhat, etc, adopt GFSL code without conflict with their existing disclaimers?

[ ... ]
>>(3) This License does not commit you to forward the Program to a
>>third party. You are free to decide to whom you wish to make the
>>Program available. However, you may not prevent or complicate
>>further use by third parties through the use of technical protective
>>measures, in particular, the use of copy protection of any kind.
>>Password-protected access restriction or use in an Intranet shall
>>not be regarded as technical protective measures.

It seems important to distinguish access to the program from access to the 
source code of the program.  The last sentence is a start, but even so, this 
paragraph appears to forbid users of the software to utilize GFSL software via 
SSL, for example.

[ ... ]
>>(2) The license board of the German Free Software License may put
>>into force binding new versions of this License inasmuch as this is
>>required and reasonable. New versions of the License will be
>>published on the Internet site <http://www.d-fsl.org> with a unique
>>version number.

This version of the license ought to have a version #, too, then.

>> The new version of the License becomes binding for
>> you as soon as you become aware of its publication. Legal remedies
>> against the modification of the License are not restricted by the
>> regulations described above.

I would suggest handling this the way the GPL does; ie, the user may choose to 
accept the new version of the license at their option, not as a requirement.

I have strong doubts about the validity of an open-ended license which may be 
altered or changed by one party without notification or acceptance on the part 
of the other party.  For example, the fact that credit-card companies would 
like to be able to change the rates they charge card-holders on an arbitrary 
basis does not make such license terms agreeable to me.

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Anyway, by and large, my opinion is that this license will be OSD-compatible 
and ought to be approved once some of the inconsistent details are worked out.

-- 
-Chuck