Subject: Re: For Approval: Common Development and Distribution License (CDDL)
From: John Cowan <jcowan@reutershealth.com>
Date: Thu, 2 Dec 2004 14:42:52 -0500

Chuck Swiger scripsit:

> Thanks for submitting this license.

Disclaimer:  Sun asked me for my opinion and feedback on this license, and
paid me for it; however, the payment was not predicated on the opinion I gave.
My opinion was and still is that the license is Open Source (and Free, and
Fair).

> However, since the main purpose of that definition is to oblige people to 
> also release the source code in its preferred form if they release the 
> software in a modified or compiled form (such as on a T-shirt :-), I do not 
> regard this as a problem, nor would this affect compliance with the OSD.

In particular, if you make more than fair use of the source in a book, you
must distribute a CD-ROM or some such as well.

> >    6.4. In the event of termination under Sections 6.1 or 6.2 above,
> >    all end user licenses (excluding distributors and resellers) that
> >    have been validly granted by You or any distributor hereunder
> >    prior to termination (excluding licenses granted to You by any
> >    distributor) shall survive termination.
> 
> So up to this point, the CDDL appears to be well-crafted, internally 
> consistent, and it covers several important aspects of patent interactions 
> and termination in a fashion which follows the OSD.
> 
> However, I am not sure about discriminating against end-users who are 
> distributors or resellers here in 6.4.  I'd invite others to evaluate this 
> area carefully and provide more feedback for you and the OSI board.

I think the intention here is to prevent you from setting up a shell
company to be the distributor while you commit what violations you like.

> [ ...end of section 9... ]
> >    Any law or regulation which provides that the language of a contract
> >    shall be construed against the drafter shall not apply to this License.
> 
> This section also caught my attention.  If an end-user resides in a country 
> which requires all licenses/contracts to be written in French, I do not 
> believe this disclaimer is going to override that local law.  I don't know 
> what that would mean, but I suspect you ought to consider that case rather 
> than relying on this assertion alone.

"Language" here is a term of art; it doesn't mean English or French, but
the actual words and phrases used.  The point of this is that in some
jurisdictions, when Alice drafts a contract and Bob's only choices are to
take or it leave it, with no negotiation possible, then in case of a dispute
about the terms, the court will assume that Alice meant exactly what she
said, and any ambiguities are interpreted in Bob's favor, since Bob had
no opportunity to affect the terms.  This sentence tries to opt out of
such a rule.  It's unfair and probably ineffective to do so, but there's
nothing in the OSD (or corresponding definitions) against it.

(I tried to get Sun to drop this line, but they did not succeed in doing so.)

> Also, if the intent of this disclaimer was broader in scope, well, laws and 
> regulations apply to people regardless of whether they have a piece of 
> paper which says otherwise.  

Some do, some don't.  You can't have a paper that says it's okay for you
kill someone, as you say, but you *can* have one that says it's okay for
you to injure someone; surgeons get people to sign such licenses every day.

My overall judgment:  I strongly urge the OSI to approve this license,
and to consider using it as part of a list of recommended licenses in
place of the MPL.

-- 
But that, he realized, was a foolish            John Cowan
thought; as no one knew better than he          jcowan@reutershealth.com
that the Wall had no other side.                http://www.ccil.org/~cowan
        --Arthur C. Clarke, "The Wall of Darkness"