Open source license minus ASP rights
Christopher Browne
> Our company has developed a web application to manage project
> accounting in project-driven organizations and are thinking about
> going open source. However, we do not want the open source license to
> include the right to use the application as an ASP (application
> service provider). In other words, we want to limit the license to be
> used in production for at most one organization per site.
>
> Do you know of any open source licenses similar to this?
>
> What is the best way to word the limitation? Any open source lawyers
> out there?
>
> Any other companies doing something like this?
What you're talking about doesn't sound consistent with the wording or
intent of any of the "free software" or "open source" licenses.
The notion of "open source" has the intent of permitting people to
freely use and redistribute software.
What you're describing sounds like neither. You're _not_ intending to
offer to let people use the software as they wish. And if they
redistribute, that takes even more power to control out of your hands.
From what you're saying, "open source" seems antithetical to what
you're doing.
In which case you should either:
a) Reconsider whether or not you really want that limitation, or
b) Conclude that you actually want no part of any "open source"
stuff, outside of getting some "marketing spin" out of _claiming_
that's what you're offering.
If you _claim_ you're offering something that's "open source" and it
doesn't offer freedom to use and redistribute, that's liable to
boomerang back in a bad way...
--
(concatenate 'string "cbbrowne" "@canada.com")
http://www.ntlug.org/~cbbrowne/lsf.html
THERE'S TOO MUCH BLOOD IN MY CAFFEINE SYSTEM!!
Isaac
>What you're talking about doesn't sound consistent with the wording or
>intent of any of the "free software" or "open source" licenses.
>
>The notion of "open source" has the intent of permitting people to
>freely use and redistribute software.
>
>What you're describing sounds like neither. You're _not_ intending to
>offer to let people use the software as they wish. And if they
>redistribute, that takes even more power to control out of your hands.
Wasn't the FSF at least comtemplating making changes to the GPL to address
(limit) the use of GPL'd programs as web applications?
>
>From what you're saying, "open source" seems antithetical to what
>you're doing.
Perhaps that's why the FSF hasn't done so yet. Yeah, I know that the
FSF doesn't call their programs open source, but I read "open source"
in the above sentence to mean free or open source licensing.
Isaac
Christopher Browne
> On Wed, 20 Feb 2002 01:11:21 -0500, Christopher Browne
> <cbbr...@acm.org> wrote:
>>What you're talking about doesn't sound consistent with the wording
>>or intent of any of the "free software" or "open source" licenses.
>>The notion of "open source" has the intent of permitting people to
>>freely use and redistribute software.
>>What you're describing sounds like neither. You're _not_ intending
>>to offer to let people use the software as they wish. And if they
>>redistribute, that takes even more power to control out of your
>>hands.
> Wasn't the FSF at least comtemplating making changes to the GPL to
> address (limit) the use of GPL'd programs as web applications?
The thing is, the FSF was trying to do more or less the _opposite_ of
what the O.P. wants.
The O.P. wants to prevent users from using the software to host web
applications. "You have the code, but you can't use it for that!"
The FSF goal was to prevent people from hiding behind the veil of not
directly distributing the code, and saying:
"We don't have to redistribute no stinkin' sources 'cause the code
is running privately on _our_ server, and you can't have it!
Nyah, nyah, nyah, nyah, nyah, nyah!"
>>From what you're saying, "open source" seems antithetical to what
>>you're doing.
> Perhaps that's why the FSF hasn't done so yet. Yeah, I know that
> the FSF doesn't call their programs open source, but I read "open
> source"
"Open source" essentially tries to express some principles of "free
use and reuse" of software whilst denying there being any particular
ethical framework beyond the notion that "Utility Is Good Enough."
It does share with the FSF definitions of "free software" the common
goals of being able to freely use and redistribute software.
The O.P. is pretty clearly rejecting the principle of "freedom of
use," which makes the intent incompatible with either "OSD" or "FSF."
I see ZERO need to waste time looking for contentions between RMS and
ESR when it's not _necessary_, and would be a distraction from the
issues at hand.
I've heard Richard Stallman himself point to the O'Reilly book "Open
Sources" as a good source of information on potential business models
to help finance free software. It's blatantly obvious to anyone that
has ever been struck by a clue-stick that he doesn't agree with the
ethical foundations of "open source," but he has certainly been
willing to point to it as a place where some thinking about economics
that is also relevant to his definition of "free software" has taken
place.
While there are _obviously_ differences between "open source software"
and "free software," there are _just as obviously_ common threads of
thinking.
If you feel like spending your time sniping at the differences, that's
obviously your right; I don't personally care to spend all my time
focusing at those "edge points" when there seem to be better things to
spend time on.
--
(reverse (concatenate 'string "moc.adanac@" "enworbbc"))
http://www.ntlug.org/~cbbrowne/emacs.html
"In most countries selling harmful things like drugs is punishable.
Then how come people can sell Microsoft software and go unpunished?"
-- <ha...@rost.abo.fi> Hasse Skrifvars
Jeffrey Siegal
> Wasn't the FSF at least comtemplating making changes to the GPL to address
> (limit) the use of GPL'd programs as web applications?
Not any more so than any other use of GPL programs. As I under stand
it, the changes under consideration would require that the source code
be made available to people to whom the program is made available via a
web (or other network, I suppose) interface.
Jay Maynard
wrote:
>"Open source" essentially tries to express some principles of "free
>use and reuse" of software whilst denying there being any particular
>ethical framework beyond the notion that "Utility Is Good Enough."
More correctly, instead of denying the ethical framework, it says that the
ethics are irrelevant to the goal, and that the goal is the important thing.
To this open source type, at least, getting in the way of the goal is bad,
even if it's done for the "right" reasons, because the goal is never
achieved.
>It does share with the FSF definitions of "free software" the common
>goals of being able to freely use and redistribute software.
Indeed. Both camps want the same things; they just want it for different
reasons. This makes the stridency of the FSF incomprehensible and
counterproductive, in the open source camp's view.
>While there are _obviously_ differences between "open source software"
>and "free software," there are _just as obviously_ common threads of
>thinking.
Indeed. The open source community recognizes this; the FSF denies it with
every breath. (Yes, I saw your comment about RMS citing _Open Sources_.
Weigh that against his absolute refusal to be associated with open source in
any manner, and the latter is so much more prevalent as to make the former
dwindle into insignificance.)
Christopher Browne
> On Wed, 20 Feb 2002 12:34:20 -0500, Christopher Browne <cbbr...@acm.org>
> wrote:
>>"Open source" essentially tries to express some principles of "free
>>use and reuse" of software whilst denying there being any particular
>>ethical framework beyond the notion that "Utility Is Good Enough."
> More correctly, instead of denying the ethical framework, it says
> that the ethics are irrelevant to the goal, and that the goal is the
> important thing. To this open source type, at least, getting in the
> way of the goal is bad, even if it's done for the "right" reasons,
> because the goal is never achieved.
No, "open source" came as a specific reaction that specifically
_denied_ the notion of there being an ethical framework. Eric Raymond
wanted to "market" the notion of free software, and figured that if
there was any quasi-ethical baggage, that would scare off corporate
types.
Other license arrangements (and "open source" is NOT a license
arrangement; they never wrote down, on tablets, any license to say
"This Is Open Source!") are less specific about any ethical
intentions.
In effect, it's a bit like contrasting agnosticism with atheism; the
former involves some degree of uncertainty as to whether there could
be a deity or not, whilst the latter is really rather doctrinaire.
The "Open Source" approach seems pretty certain that having ethical
entanglements is to be seen as a bad thing.
>>It does share with the FSF definitions of "free software" the common
>>goals of being able to freely use and redistribute software.
> Indeed. Both camps want the same things; they just want it for
> different reasons. This makes the stridency of the FSF
> incomprehensible and counterproductive, in the open source camp's
> view.
That doesn't mean that it's irrational nor that it is
counterproductive to the FSF.
I have some confidence that the FSF will still be around three years
from now and that they will still be strident about roughly the same
things.
In contrast, I haven't the foggiest idea what AOL will continue to
allow the Mozilla folks to continue doing in three years, if anything.
>>While there are _obviously_ differences between "open source software"
>>and "free software," there are _just as obviously_ common threads of
>>thinking.
> Indeed. The open source community recognizes this; the FSF denies it
> with every breath. (Yes, I saw your comment about RMS citing _Open
> Sources_. Weigh that against his absolute refusal to be associated
> with open source in any manner, and the latter is so much more
> prevalent as to make the former dwindle into insignificance.)
--
(reverse (concatenate 'string "moc.adanac@" "enworbbc"))
http://www.ntlug.org/~cbbrowne/rdbms.html
What hair color do they put on the driver's licenses of bald men?
phil hunt
>Centuries ago, Nostradamus foresaw when jmay...@thebrain.conmicro.cx (Jay Maynard) would write:
>> On Wed, 20 Feb 2002 12:34:20 -0500, Christopher Browne <cbbr...@acm.org>
>> wrote:
>>>"Open source" essentially tries to express some principles of "free
>>>use and reuse" of software whilst denying there being any particular
>>>ethical framework beyond the notion that "Utility Is Good Enough."
>
>> More correctly, instead of denying the ethical framework, it says
>> that the ethics are irrelevant to the goal, and that the goal is the
>> important thing. To this open source type, at least, getting in the
>> way of the goal is bad, even if it's done for the "right" reasons,
>> because the goal is never achieved.
>
>No, "open source" came as a specific reaction that specifically
>_denied_ the notion of there being an ethical framework. Eric Raymond
>wanted to "market" the notion of free software, and figured that if
>there was any quasi-ethical baggage, that would scare off corporate
>types.
>
>Other license arrangements (and "open source" is NOT a license
>arrangement;
Of course not; it's a set of license arrangements.
> they never wrote down, on tablets, any license to say
>"This Is Open Source!")
No, they wrote a definition to say "This Is Open Source!", it's
called (not surprisingly) the Open Source Definition.
--
===== Philip Hunt ===== ph...@comuno.freeserve.co.uk =====
Herbivore, a zero-effort email encryption system. Details at:
<http://www.vision25.demon.co.uk/oss/herbivore/intro.html>
Isaac
I would consider that to be a limit on usage, but maybe that's just a
word game.
Isaac
Jeffrey Siegal
It is precisely the same (or closely analogous) limit on usage that GPL
currently applies as a limit on copying and distribution. Does GPL
currently "limit" the ability of people to copy and distribute as they
see fit? Only if you consider the requirement to include (or offer)
source code as being a limit. It isn't a limit in the sense that it
prohibits anyone from making and distributing copies, but it does
require that the source code not be "unbundled" from binary copies. The
use rule would be similar, in that it would not prohibit any use of the
program, but would requre that the source code not be "unbunbled" from
use of the program.
Isaac
>It is precisely the same (or closely analogous) limit on usage that GPL
>currently applies as a limit on copying and distribution. Does GPL
>currently "limit" the ability of people to copy and distribute as they
>see fit? Only if you consider the requirement to include (or offer)
>source code as being a limit. It isn't a limit in the sense that it
>prohibits anyone from making and distributing copies, but it does
>require that the source code not be "unbundled" from binary copies. The
>use rule would be similar, in that it would not prohibit any use of the
>program, but would requre that the source code not be "unbunbled" from
>use of the program.
Yes the limits are the same, but I find the application of the limits
more burdensome when tied to use than when tied to copying and
distribution. Imagine the implications if code with such a license
is used as the firmware in a product. Allowing someone to use the
product in a commercial setting might create an obligation to distribute
source code. Is such code free?
There is another dissimilarity that results Sec 117 of Title 17.
User have the right to adapt and run copies of software that they own.
There is no similar exception for other types of copying or for
distribution. Is it possible to work around this and still have
free software?
Isaac
Jeffrey Siegal
> There is another dissimilarity that results Sec 117 of Title 17.
> User have the right to adapt and run copies of software that they own.
> There is no similar exception for other types of copying or for
> distribution. Is it possible to work around this and still have
> free software?
It seems that the only legal requirement to "work around" sec. 117 is
probably just to declare in the license that copies must be licensed and
not sold (or otherwise transferred outright). Once that has been done,
it is essentially as if 117 does not exist. At least, that appears to
be the case for commercial software licenses, and I don't see any real
difference between that and free software licenses.
Jeffrey Siegal
> Yes the limits are the same, but I find the application of the limits
> more burdensome when tied to use than when tied to copying and
> distribution. Imagine the implications if code with such a license
> is used as the firmware in a product. Allowing someone to use the
> product in a commercial setting might create an obligation to distribute
> source code. Is such code free?
On the one hand, this becomes more burdensome. But on the other hand,
the burden of distributing source code to everyone (including such
users) has become much less burdensome since the advent of the GPL since
it is now feasible to just put the source code on a public web site and
probably reasonable to assume that such a web site is accessible to
anyone who wants to visit it.
Isaac
Well commercial software doesn't claim to be free and is generally
obtained under some mechanism where at least some people think a
contract is be formed. Certainly it's possible to make GPL'd
software obtainable only under a license rather so that you don't
own a copy. But is it reasonable to consider code under such
a license free? I think reasonable people could disagree about
such a thing.
Isaac
Jay Maynard
wrote:
>No, "open source" came as a specific reaction that specifically
>_denied_ the notion of there being an ethical framework. Eric Raymond
>wanted to "market" the notion of free software, and figured that if
>there was any quasi-ethical baggage, that would scare off corporate
>types.
Can you cite something where ESR (or any other OSI bigwig) says this in
writing? I don't believe that ESR *denies* an ethical framework. Yes, it's a
matter of marketing, but the decision was to ignore the ethical framework,
not deny it.
>Other license arrangements (and "open source" is NOT a license
>arrangement; they never wrote down, on tablets, any license to say
>"This Is Open Source!")
There *is* a service mark, Open Source Software, owned by the Open Source
Initiative, and only software licensed under terms that comply with the Open
Source Definition may legally call itself that. I'm not aware of the OSI
going after any violators, nor am I aware of any violators.
> are less specific about any ethical
>intentions.
...or simply regard them as irrelevant background material and neither
necessary nor suitable for inclusion in the legal terms of the license.
>In effect, it's a bit like contrasting agnosticism with atheism; the
>former involves some degree of uncertainty as to whether there could
>be a deity or not, whilst the latter is really rather doctrinaire.
>The "Open Source" approach seems pretty certain that having ethical
>entanglements is to be seen as a bad thing.
No, it's like trumpeting your fundamentalism to the world: it gets in the
way of your true message. Open Source folks are agnostic, not atheistic, by
that comparison. (And I typed pretty mucht he same thing right above your
last paragraph before I reread it.)
>> Indeed. Both camps want the same things; they just want it for
>> different reasons. This makes the stridency of the FSF
>> incomprehensible and counterproductive, in the open source camp's
>> view.
>That doesn't mean that it's irrational nor that it is
>counterproductive to the FSF.
That's because the FSF doesn't care about the ultimate goal so much as that
they care that it be reached for the right reasons. They're fundamentalists
in this particular religion.
>I have some confidence that the FSF will still be around three years
>from now and that they will still be strident about roughly the same
>things.
Is this a bug or a feature? Stridency prolonged, without any advancement
toward what that stridency is intended to promote, is merely noise.
>In contrast, I haven't the foggiest idea what AOL will continue to
>allow the Mozilla folks to continue doing in three years, if anything.
That *should* be AOL's decision to make, as contributor of the massive
codebase on which it was built.
Christopher Browne
I'm reasonably sure of what _your_ opinion on that is; you seem to
consider the FSF to _be_ a bug.
I think RMS is indeed a _bit_ mad, but that there is some value in
it.
There may not be as much "progression" as there might be were he a
little bit more "diplomatic" in what he says, but it's useful to have
some extreme points out there. It's useful to measure other things
against :-).
>>In contrast, I haven't the foggiest idea what AOL will continue to
>>allow the Mozilla folks to continue doing in three years, if
>>anything.
> That *should* be AOL's decision to make, as contributor of the
> massive codebase on which it was built.
That leaves open the question of what they should have the ability to
decide about.
One extreme end of the possible points of view is that in three years,
AOL might decide to pack it all up, and say:
Nobody is allowed to use this stuff anymore.
With some products out there, that's a position seen all too often.
There are companies that absolutely _refuse_ to do any business with
Apple because of the past events of:
- Packing up Newton development;
"You mean your business depends on the continuing availability of
Newton hardware? Sorry^H^H^H^H^HActually, we're NOT sorry;
we've decided not to sell it anymore."
- Some less known technologies like GX fonts;
- The many "Oh, oh, here's the REAL library you should use to develop
successors to your NeXT applications" that seriously screwed over
anyone that believed promises concerning cross-platform support.
Not all of this was Apple's fault, but anyone considering getting into
the business of selling products based on technologies sold by Apple
has GOT to factor in that there are pretty big risks of Apple dropping
technologies and leaving you stranded.
One of the major benefits of "open source"/"free software" is the
notion of not having to apologize because some vendor decided to stop
selling you licenses.
The thing that happened when ESR started "selling" companies on Open
Source was that lots of projects got started to release bits of code;
since there was not forcibly any "principle" or "ethos" behind this,
the projects can evaporate as quickly as they appear, and for anyone
to allow themselves to get terribly dependent on ongoing development
of stuff that's solely "open source" leaves some pretty sizable
risks.
It's not nearly as bad as was the case for people selling products
running on Newton; those people woke up one morning and discovered
that their business was DEAD. Those that were selling NeXT
applications and now have challenges extracting DPS licenses out of
Adobe have a similar problem.
If AOL stops developing Mozilla, there's at least a code base out
there that should still be somewhat usable even if it is no longer
being actively maintained. But users of Mozilla still have some risk
to worry about...
--
(concatenate 'string "cbbrowne" "@ntlug.org")
http://www.ntlug.org/~cbbrowne/lsf.html
"Computer science is like library science -- you create a problem and then
study it." -- David Place
Jeffrey Siegal
> Well commercial software doesn't claim to be free and is generally
> obtained under some mechanism where at least some people think a
> contract is be formed. Certainly it's possible to make GPL'd
> software obtainable only under a license rather so that you don't
> own a copy. But is it reasonable to consider code under such
> a license free? I think reasonable people could disagree about
> such a thing.
I think reasonable people could disagree about just about calling just
about anything "free software" except possibly that which is in the
public domain.
It is likely to be the case that with any distribution of software, with
the possible exception of public domain software, but including almost
all popular forms of "free" software or "open source", there is some
sort of contract formed. How else are the disclaimers of warranties and
limitations of liablity supposed to be effective? It is also plausible
(though there does not appear to be consensus on this) that GPL forms a
contract when you decide to copy and redistribute the code. Does the
existance of such contracts preclude such software being "free software"
when you decide to redistribute it?
I don't see where the presence or absence of a contract is relevant to
the question of whether something is "free software." It is what the
contract says that matters.
The GPL model of free software says that it is okay for free software to
require that the right of access to source code not be unbundled from
other rights. Logically, there is little difference in terms of
"freeness" whether that restriction on unbundling applies to use or to
copying and distribution. Of course, I could see where, if you were on
the fence as to whether you considered GPL software to be "free
software" to begin with, this sort of change might push you over the edge.
Floyd Davidson
>In the last exciting episode, jmay...@thebrain.conmicro.cx (Jay Maynard) wrote::
>> On Thu, 21 Feb 2002 10:42:02 -0500, Christopher Browne <cbbr...@acm.org>
>> wrote:
>
>>>I have some confidence that the FSF will still be around three years
>>>from now and that they will still be strident about roughly the same
>>>things.
>
>> Is this a bug or a feature? Stridency prolonged, without any
>> advancement toward what that stridency is intended to promote, is
>> merely noise.
>
>I'm reasonably sure of what _your_ opinion on that is; you seem to
>consider the FSF to _be_ a bug.
>
>I think RMS is indeed a _bit_ mad, but that there is some value in
>it.
>
>There may not be as much "progression" as there might be were he a
>little bit more "diplomatic" in what he says, but it's useful to have
>some extreme points out there. It's useful to measure other things
>against :-).
Compare "progression" to "creation". Without Stallman and his
strident nature (not to mention his organizational and
programming talents), we simply would not have an Open Source
movement today.
Suggesting it would progress faster if he were different denies
the reality that in that case it would not exist.
--
Floyd L. Davidson <http://www.ptialaska.net/~floyd>
Ukpeagvik (Barrow, Alaska) fl...@barrow.com
Isaac
>Isaac wrote:
>> Well commercial software doesn't claim to be free and is generally
>> obtained under some mechanism where at least some people think a
>> contract is be formed. Certainly it's possible to make GPL'd
>> software obtainable only under a license rather so that you don't
>> own a copy. But is it reasonable to consider code under such
>> a license free? I think reasonable people could disagree about
>> such a thing.
>
>I think reasonable people could disagree about just about calling just
>about anything "free software" except possibly that which is in the
>public domain.
>
>It is likely to be the case that with any distribution of software, with
>the possible exception of public domain software, but including almost
>all popular forms of "free" software or "open source", there is some
>sort of contract formed. How else are the disclaimers of warranties and
>limitations of liablity supposed to be effective? It is also plausible
I'm not sure they are effective. I don't think there is any kind of
contract formed when you use (meaning execute) GPL covered software.
The terms of the GPL explicitly disclaim relevance to that situation.
>(though there does not appear to be consensus on this) that GPL forms a
>contract when you decide to copy and redistribute the code. Does the
I find that plausible.
>existance of such contracts preclude such software being "free software"
>when you decide to redistribute it?
>I don't see where the presence or absence of a contract is relevant to
>the question of whether something is "free software." It is what the
>contract says that matters.
I find the question of whether you own a copy or not to be relevant,
but that's probably just my slant on things. The only way we've
discussed so far to make the bundling requirement enforceable is to
deny ownership of the copy.
>The GPL model of free software says that it is okay for free software to
>require that the right of access to source code not be unbundled from
>other rights. Logically, there is little difference in terms of
Some specific other rights. So far those rights don't involve executing
code.
I can't agree that there is no logical difference between usage and
distribution.
>"freeness" whether that restriction on unbundling applies to use or to
>copying and distribution. Of course, I could see where, if you were on
>the fence as to whether you considered GPL software to be "free
>software" to begin with, this sort of change might push you over the edge.
I'm not on the fence. The GPL is unquestionably free using the definition
given by the FSF. I personally don't find a requirement to provide
source in at least some ASP contexts enough to make code non free. But
a similar requirement that was invoked simply by use of GPLd firmware
in a commercial environment would be enough.
Isaac
Jeffrey Siegal
> I find the question of whether you own a copy or not to be relevant,
> but that's probably just my slant on things. The only way we've
> discussed so far to make the bundling requirement enforceable is to
> deny ownership of the copy.
Agreed, but my point is: so what?
If GPL were changed tomorrow to say "you may copy and distribute this
software, but must be licensed (not sold) under the terms of this [GPL]
license" (and also granted an explicit right to use the program as in
sec. 117, since that is implicit in the current GPL, I think), what
would it really change? Would this still be free software? I fail to
see why not, since every freedom that already exists under the GPL would
still exist.
> I'm not on the fence. The GPL is unquestionably free using the definition
> given by the FSF. I personally don't find a requirement to provide
> source in at least some ASP contexts enough to make code non free. But
> a similar requirement that was invoked simply by use of GPLd firmware
> in a commercial environment would be enough.
That's a question of what the license says, not whether the code is
licensed or sold. In order to restrict ASP usage, it is probably
necessary to move from a sale of a copy model to an end user license
model. Your issue here is with what that end user license says, not
whether there is an end user license at all.
Jeffrey Siegal
> >It is likely to be the case that with any distribution of software, with
> >the possible exception of public domain software, but including almost
> >all popular forms of "free" software or "open source", there is some
> >sort of contract formed. How else are the disclaimers of warranties and
> >limitations of liablity supposed to be effective? It is also plausible
>
> I'm not sure they are effective. I don't think there is any kind of
> contract formed when you use (meaning execute) GPL covered software.
> The terms of the GPL explicitly disclaim relevance to that situation.
Well, regardless of whether the disclaimers and limitation are effective
or not (which I'm not sure is relevant to "freeness" anyway), which
seems to be somewhat of an open issue, there is clearly some sort of
contract when you purchase a copy "free" or "open source" software (for
example from Red Hat). It is just a contract for the sale of goods.
The use of the software is not relevant, and the existance of *some*
sort of contract does not seem to preclude that still being free
software.
(In the case of a free download from a public server, there may not be
any consideration flowing to the distributor, especially if the
liability limitation is not effective, so there may not be a contract
there.)
John Hasler
> In the case of a free download from a public server, there may not be any
> consideration flowing to the distributor, especially if the liability
> limitation is not effective, so there may not be a contract there.
If no consideration flows to the distributor there may not be any liability
to limit.
An interesting though tangential question: when I download something (free
or otherwise) to a computer that I own, how can I _not_ own the resulting
copy?
--
John Hasler
jo...@dhh.gt.org
Dancing Horse Hill
Elmwood, Wisconsin
Jeffrey Siegal
> If no consideration flows to the distributor there may not be any liability
> to limit.
How do you figure that? There is always the possibility of
condequential damages.
> An interesting though tangential question: when I download something (free
> or otherwise) to a computer that I own, how can I _not_ own the resulting
> copy?
Logically it is a strange concept but legally courts have been
conformatable with it for at least a decade now, if not longer.
The best I can come up with is that it is something like an item within
your home that you don't own. You may have complete physical control
over and posession of the item, but still not own it. Another
possibility is that by downloading software that you don't own to your
computer, you no longer are the sole owner of the computer, but have
vested the owner of the copy with an overlapping ownership interest.
This makes a certain amount of sense, since it would be illegal for you
to sell the computer with the copy on it if you don't own the copy; in
that sense your ownership of the computer has been encumbered.
Chris Barney
> Isaac wrote:
> > >It is likely to be the case that with any distribution of software, with
> > >the possible exception of public domain software, but including almost
> > >all popular forms of "free" software or "open source", there is some
> > >sort of contract formed. How else are the disclaimers of warranties and
> > >limitations of liablity supposed to be effective? It is also plausible
> >
> > I'm not sure they are effective. I don't think there is any kind of
> > contract formed when you use (meaning execute) GPL covered software.
> > The terms of the GPL explicitly disclaim relevance to that situation.
>
...
> (In the case of a free download from a public server, there may not be
> any consideration flowing to the distributor, especially if the
> liability limitation is not effective, so there may not be a contract
> there.)
Are you implying that agreement to not sue can be consideration?
I've read several places (on web) that in (most of?) the USA, a contract
only needs an offer and an showing of acceptance/agreement, and even
with a non-contract license there are some contract-like conditions on
both parties, especially if the licensee has a vested interest (I'm
mostly thinking about license withdrawal).
In this case of GPL, if a licensee publishes a derivative, his published
work is clearly consideration (so much so that I consider it a form of
fee licensing -- one can't use the code for derivative-publishing use
unless one cross-licenses one's own work in the derivative).
I do agree that it's possible to execute almost all open source software
without ever accepted (or even seen) any license and entered a contract.
They may even be more risky than Public Domain software to the publisher
(because of the continued ownership and lesser public benefit), but I've
not heard of anyone being sued for damages on either kind of software.
Jeffrey Siegal
> Are you implying that agreement to not sue can be consideration?
Why not?
> I've read several places (on web) that in (most of?) the USA, a contract
> only needs an offer and an showing of acceptance/agreement
A contract must include exchange of consideration, although the
definition of what constitutes consideration is very broad, and even
tiny consideration is sufficient. The most common way a contract is
formed is via an offer and an acceptance, but that's a procedural matter
not essential to the concept of a contract itself.
> and even
> with a non-contract license there are some contract-like conditions on
> both parties, especially if the licensee has a vested interest (I'm
> mostly thinking about license withdrawal).
Certainly plausible.
Isaac
>Isaac wrote:
>> I find the question of whether you own a copy or not to be relevant,
>> but that's probably just my slant on things. The only way we've
>> discussed so far to make the bundling requirement enforceable is to
>> deny ownership of the copy.
>
>Agreed, but my point is: so what?
>
>If GPL were changed tomorrow to say "you may copy and distribute this
>software, but must be licensed (not sold) under the terms of this [GPL]
>license" (and also granted an explicit right to use the program as in
>sec. 117, since that is implicit in the current GPL, I think), what
>would it really change? Would this still be free software? I fail to
>see why not, since every freedom that already exists under the GPL would
>still exist.
True. But simply by having licensing removes what sec 117 gives
because a licensee is not an owner. What you've done is add those rights
back. I'm not sure exactly what point that makes, but if your point
is that you can have a license and then have free code, then you are
right.
Since I've already agreed that some user restrictions don't necessarily
make code non free, I think I've already agreed with your point.
My point is that ownership gives the user certain rights that do
comprise freedom. The simple fact of calling that user a non
owner removes those rights. Not only that, but you have to
come up with some mechanism to make those rights binding without
allowing the user to first acquire ownership of a copy.
But none of that is necessary if all the copyright holder wants to
do is have some conditions for copying and distributing.
Isaac
Isaac
>Isaac wrote:
>> >It is likely to be the case that with any distribution of software, with
>> >the possible exception of public domain software, but including almost
>> >all popular forms of "free" software or "open source", there is some
>> >sort of contract formed. How else are the disclaimers of warranties and
>> >limitations of liablity supposed to be effective? It is also plausible
>>
>> I'm not sure they are effective. I don't think there is any kind of
>> contract formed when you use (meaning execute) GPL covered software.
>> The terms of the GPL explicitly disclaim relevance to that situation.
>
>Well, regardless of whether the disclaimers and limitation are effective
>or not (which I'm not sure is relevant to "freeness" anyway), which
>seems to be somewhat of an open issue, there is clearly some sort of
>contract when you purchase a copy "free" or "open source" software (for
>example from Red Hat). It is just a contract for the sale of goods.
>The use of the software is not relevant, and the existance of *some*
>sort of contract does not seem to preclude that still being free
>software.
The contract is not relevant to the usage or distribution of the
software. I agree that an irrelevant contract doesn't affect
freedom. A contract that says you don't own your copy is
relevant.
Isaac
Jeffrey Siegal
> The contract is not relevant to the usage or distribution of the
> software. I agree that an irrelevant contract doesn't affect
> freedom. A contract that says you don't own your copy is
> relevant.
I think you're basically arguing by asserting your opinion. You're
entitled to your opinion, but I'm just not sure it rests on any logical
basis. (Perhaps you're not claiming that it does; I'm not sure.)
Isaac
>Jeffrey Siegal <j...@quiotix.com> writes:
>
>> Isaac wrote:
>> > >It is likely to be the case that with any distribution of software, with
>> > >the possible exception of public domain software, but including almost
>> > >all popular forms of "free" software or "open source", there is some
>> > >sort of contract formed. How else are the disclaimers of warranties and
>> > >limitations of liablity supposed to be effective? It is also plausible
>> >
>> > I'm not sure they are effective. I don't think there is any kind of
>> > contract formed when you use (meaning execute) GPL covered software.
>> > The terms of the GPL explicitly disclaim relevance to that situation.
>>
>...
>> (In the case of a free download from a public server, there may not be
>> any consideration flowing to the distributor, especially if the
>> liability limitation is not effective, so there may not be a contract
>> there.)
>
>Are you implying that agreement to not sue can be consideration?
An agreement not to sue can certainly be consideration.
>I've read several places (on web) that in (most of?) the USA, a contract
>only needs an offer and an showing of acceptance/agreement, and even
I don't believe that to be a correct description of what's required
for a contract. Those things are essential parts, but if I make a
gratuitous offer to give you some money, and you agree to take the
money, that isn't enough to form a contract. In order to make my
offer binding, you need to provide some consideration or there
needs to be some kind of consideration substitute.
>with a non-contract license there are some contract-like conditions on
>both parties, especially if the licensee has a vested interest (I'm
>mostly thinking about license withdrawal).
Sounds plausible to me.
Isaac
Christopher Browne
> On Sat, 23 Feb 2002 05:58:25 GMT, Chris Barney <ph...@phonyyyyyy.org> wrote:
>>Jeffrey Siegal <j...@quiotix.com> writes:
>>Are you implying that agreement to not sue can be consideration?
>
> An agreement not to sue can certainly be consideration.
Have courts found that to be the case? Or not?
--
(concatenate 'string "aa454" "@freenet.carleton.ca")
http://www.ntlug.org/~cbbrowne/linuxdistributions.html
The human race will decree from time to time: "There is something at
which it is absolutely forbidden to laugh."
-- Nietzche on Common Lisp
Jeffrey Siegal
>
> In the last exciting episode, is...@latveria.castledoom.org (Isaac) wrote::
> > On Sat, 23 Feb 2002 05:58:25 GMT, Chris Barney <ph...@phonyyyyyy.org> wrote:
> >>Jeffrey Siegal <j...@quiotix.com> writes:
> >>Are you implying that agreement to not sue can be consideration?
> >
> > An agreement not to sue can certainly be consideration.
>
> Have courts found that to be the case? Or not?
I'm quite certain that they have, although I can't cite a case offhand,
and don't feel like looking for one.
Courts will consider just about any little thing to be consideration.
You would have to look pretty hard to find a court throw out a contract
for lack of consideration. However, the consideration can not violate
public policy. There might be an issue there with certain claim
waivers, but not in general.
Stefaan A Eeckels
Christopher Browne <cbbr...@acm.org> wrote:
> With some products out there, that's a position seen all too often.
> There are companies that absolutely _refuse_ to do any business with
> Apple because of the past events of:
> - Packing up Newton development;
> "You mean your business depends on the continuing availability of
> Newton hardware? Sorry^H^H^H^H^HActually, we're NOT sorry;
> we've decided not to sell it anymore."
Anyone who lets their business _depend_ on a product
available from one company only needs their head read.
--
Stefaan
--
Microsoft treats IT managers the way Proctor & Gamble treats nine-year-old
prospective consumers: lots of noise, bright colors, and jumping around.
Other software vendors just wish they could be so successful.
-- Cameron Laird in comp.lang.tcl
Isaac
Not exactly. While the statement above is just an assertion, it wasn't
meant as proof. I was trying to point out that you had shifted
the discussion to include contracts that had nothing to do with your
rights to use the software, but instead had to do with how you obtained
a copy that you might or might not own. Yes you can sell free software
for any price/consideration you want.
While I agree that those contracts aren't relevant to determining
whether or not software is free, I'm not willing to accept that as
proof that no contract is relevant.
We haven't bothered to define free in any explicit way in this discussion,
so it may not be clear how any given requirement or bundling can be seen
to logically remove freedom. IMO freedom includes being able to use the
software as described in sec 117. Simply establishing me as a licensee
removes my claim to those statutory provisions.
Secondly, in order to insure that the license is binding on future
users, people who want to use the code are obligated to distribute the
code in ways that bind recipients. Whether or not that encumbrance
is an argument that the code is free or not isn't a matter of logic
versus non logic. The encumbrance exists, but whether or not it
makes code non free is a matter of opinion.
It's been stated that the GPL doesn't add restrictions, but instead
provides additional rights above and beyond those you would normally
have under copyright law. I'm mostly in agreement with that statement
with the exception of the issues surrounding dynamic linking. But
that statement would not be true if the GPL operated in a way to make
copyholders licensees and not owners of copies.
Isaac
Isaac
>In the last exciting episode, is...@latveria.castledoom.org (Isaac) wrote::
>> On Sat, 23 Feb 2002 05:58:25 GMT, Chris Barney <ph...@phonyyyyyy.org> wrote:
>>>Jeffrey Siegal <j...@quiotix.com> writes:
>>>Are you implying that agreement to not sue can be consideration?
>>
>> An agreement not to sue can certainly be consideration.
>
>Have courts found that to be the case? Or not?
A typical settlement agreement is a contract giving payment in exchange
for an agreement not to sue. Would you question whether such an
agreement is binding?
Isaac
Jeffrey Siegal
> IMO freedom includes being able to use the
> software as described in sec 117. Simply establishing me as a licensee
> removes my claim to those statutory provisions.
This is pretty much what I meant about arguing by asserting your opinion.
You have defined the sec. 117 rights as being essential to freedom,
which means that no encumberance of those rights, even if necessary to
protect other user's freedoms (for example, the freedom to modify the
software, to study its implementation, etc.) are therefore not
protected. That's a legitimate value judgement, but it doesn't flow
from anything other than your subjective "line in the sand" when it
comes to sec. 117 rights.
> Secondly, in order to insure that the license is binding on future
> users, people who want to use the code are obligated to distribute the
> code in ways that bind recipients. Whether or not that encumbrance
> is an argument that the code is free or not isn't a matter of logic
> versus non logic. The encumbrance exists, but whether or not it
> makes code non free is a matter of opinion.
GPL users already bound to distribute (if they do distribute) in very
carefully defined ways.
> It's been stated that the GPL doesn't add restrictions, but instead
> provides additional rights above and beyond those you would normally
> have under copyright law. I'm mostly in agreement with that statement
> with the exception of the issues surrounding dynamic linking.
What about the first sale doctrine? Indeed, if users own their own
copies, including binary copies, of the software, than those users can
transfer those copies without complying with the GPL's requirements as
to source code access.
Chris Barney
> Anyone who lets their business _depend_ on a product
> available from one company only needs their head read.
The wonderful thing is that people often do great things and are often
greatly rewarded when they are willing to take great risks.
We need a "Thanksgiving Day" for the few who are insane enough to not
play things as safely as the rest of us. Note that I do not say that
THEY need such a day (like soldiers don't need Memorial Day).
Stefaan A Eeckels
Chris Barney <ph...@phonyyyyyy.org> wrote:
> Stefaan A Eeckels <Stefaan...@ecc.lu> writes:
>
> > Anyone who lets their business _depend_ on a product
> > available from one company only needs their head read.
>
> The wonderful thing is that people often do great things and are often
> greatly rewarded when they are willing to take great risks.
I take it you mean all the Windows users out there ;-).
Only I'd replace often with "sometimes".
> We need a "Thanksgiving Day" for the few who are insane enough to not
> play things as safely as the rest of us. Note that I do not say that
> THEY need such a day (like soldiers don't need Memorial Day).
Indeed.
Isaac
>> users, people who want to use the code are obligated to distribute the
>> code in ways that bind recipients. Whether or not that encumbrance
>> is an argument that the code is free or not isn't a matter of logic
>> versus non logic. The encumbrance exists, but whether or not it
>> makes code non free is a matter of opinion.
>
>GPL users already bound to distribute (if they do distribute) in very
>carefully defined ways.
I think this revolves around our disagreement that similar restrictions
on usage and distribution have the same impact on freedom. I don't
think my arguments prove that one or the other set of restrictions
on usage make the code not free, but I think they have been
sufficient to point out differences how much of a pain those
restrictions might be for users.
>
>> It's been stated that the GPL doesn't add restrictions, but instead
>> provides additional rights above and beyond those you would normally
>> have under copyright law. I'm mostly in agreement with that statement
>> with the exception of the issues surrounding dynamic linking.
>
>What about the first sale doctrine? Indeed, if users own their own
>copies, including binary copies, of the software, than those users can
>transfer those copies without complying with the GPL's requirements as
>to source code access.
Interesting. I really hadn't thought about that and my attempts
to digest the implications on the fly are making my head hurt.
I can't resolve the problems introduced by first sale without
either making the user of GPL'd code a non owner or deciding
that users really can transfer their copies, no matter what the
GPL says.
Gotta think about this. Kinda makes my whole argument moot
if GPL users are really licensees. <g>
Isaac
Jeffrey Siegal
> I think this revolves around our disagreement that similar restrictions
> on usage and distribution have the same impact on freedom. I don't
> think my arguments prove that one or the other set of restrictions
> on usage make the code not free, but I think they have been
> sufficient to point out differences how much of a pain those
> restrictions might be for users.
Agreed. There are certainly differences. It is when you start trying to
make a value judgement about what kinds of pain are preferable to others
-- in particular, someone having an obligation to distribute source
balanced against someone else not being able to modify and study the
source -- that things become subjective, probably unavoidably so.
Per Abrahamsen
> On Sat, 23 Feb 2002 22:07:24 GMT
> Chris Barney <ph...@phonyyyyyy.org> wrote:
>
>> Stefaan A Eeckels <Stefaan...@ecc.lu> writes:
>>
>> > Anyone who lets their business _depend_ on a product
>> > available from one company only needs their head read.
>>
>> The wonderful thing is that people often do great things and are often
>> greatly rewarded when they are willing to take great risks.
>
> I take it you mean all the Windows users out there ;-).
> Only I'd replace often with "sometimes".
I'd say "rarely". We just tend to hear about the winners, not the losers.
A good start would be if companies would start categorize use of
proprietary software as "calculated risks".
Barry Fishman
Ah. If Joseph Cambell were here to today.
Are you talking about bank robbers who really do take some risks to
try to make lots of money? Do you want to give them a "Thanksgiving
Day"?
I don't see *any* "Entrepreneurs" taking risks. They usually con their
working capital out of someone else, and when things go wrong use
bankruptcies for protection after already siphoning considerable funds
into their own bank accounts. Any that really loose generally
lacked even the technical abilities to perform that swindle.
Why do people drivel on like this? Do we need a major depression
before people figure out, again, that the economy follows the same
constraints as the rest of our mathematically modeled world?
--
Barry
NF Stevens
[snip]
>That's a question of what the license says, not whether the code is
>licensed or sold. In order to restrict ASP usage, it is probably
>necessary to move from a sale of a copy model to an end user license
>model. Your issue here is with what that end user license says, not
>whether there is an end user license at all.
Couldn't one invoke the public performance part of copyright?
Norman
Jeffrey Siegal
> >That's a question of what the license says, not whether the code is
> >licensed or sold. In order to restrict ASP usage, it is probably
> >necessary to move from a sale of a copy model to an end user license
> >model. Your issue here is with what that end user license says, not
> >whether there is an end user license at all.
>
> Couldn't one invoke the public performance part of copyright?
See recent discussion here. Even if there is a public performance right
for software at all, which is unclear, "performing" the software
probably does not mean executing it.