Analysis of the Academic Free License ("AFL") v3.0

[Francesco Poli]

Hello everybody,
while reviewing subversion/1.7.5-1 debian/copyright file [1], I noticed
that debian/contrib/svn_load_dirs is licensed under the AFL v3.0 .

[1] http://packages.debian.org/changelogs/pool/main/s/subversion/subversion_1.7.5-1/copyright

I re-read the archived discussion [2] about the AFL v2.1 and I analyzed
the AFL v3.0 .

[2] https://lists.debian.org/debian-legal/2004/10/msg00230.html

I would like your help in assessing the non-freeness of this license,
before filing a serious bug report against subversion (recommending to
either persuade the copyright holder to re-license in a DFSG-free
manner, or remove the non-free file from the package).

Here's the complete text of the license, as quoted in the subversion
package debian/copyright file [1].
My personal comments will follow shortly.


Academic Free License ("AFL") v. 3.0

This Academic Free License (the "License") applies to any original
work of authorship (the "Original Work") whose owner (the "Licensor")
has placed the following licensing notice adjacent to the copyright
notice for the Original Work:

Licensed under the Academic Free License version 3.0

1) Grant of Copyright License. Licensor grants You a worldwide,
royalty-free, non-exclusive, sublicensable license, for the
duration of the copyright, to do the following:
a) to reproduce the Original Work in copies, either alone or as
part of a collective work;
b) to translate, adapt, alter, transform, modify, or arrange the
Original Work, thereby creating derivative works ("Derivative
Works") based upon the Original Work;
c) to distribute or communicate copies of the Original Work and
Derivative Works to the public, under any license of your
choice that does not contradict the terms and conditions,
including Licensor's reserved rights and remedies, in this
Academic Free License;
d) to perform the Original Work publicly; and
e) to display the Original Work publicly.

2) Grant of Patent License. Licensor grants You a worldwide,
royalty-free, non- exclusive, sublicensable license, under patent
claims owned or controlled by the Licensor that are embodied in
the Original Work as furnished by the Licensor, for the duration
of the patents, to make, use, sell, offer for sale, have made, and
import the Original Work and Derivative Works.

3) Grant of Source Code License. The term "Source Code" means the
preferred form of the Original Work for making modifications to it
and all available documentation describing how to modify the
Original Work. Licensor agrees to provide a machine-readable copy
of the Source Code of the Original Work along with each copy of
the Original Work that Licensor distributes. Licensor reserves the
right to satisfy this obligation by placing a machine-readable
copy of the Source Code in an information repository reasonably
calculated to permit inexpensive and convenient access by You for
as long as Licensor continues to distribute the Original Work.

4) Exclusions From License Grant. Neither the names of Licensor, nor
the names of any contributors to the Original Work, nor any of
their trademarks or service marks, may be used to endorse or
promote products derived from this Original Work without express
prior permission of the Licensor. Except as expressly stated
herein, nothing in this License grants any license to Licensor's
trademarks, copyrights, patents, trade secrets or any other
intellectual property. No patent license is granted to make, use,
sell, offer for sale, have made, or import embodiments of any
patent claims other than the licensed claims defined in Section
2. No license is granted to the trademarks of Licensor even if
such marks are included in the Original Work. Nothing in this
License shall be interpreted to prohibit Licensor from licensing
under terms different from this License any Original Work that
Licensor otherwise would have a right to license.

5) External Deployment. The term "External Deployment" means the use,
distribution, or communication of the Original Work or Derivative
Works in any way such that the Original Work or Derivative Works
may be used by anyone other than You, whether those works are
distributed or communicated to those persons or made available as
an application intended for use over a network. As an express
condition for the grants of license hereunder, You must treat any
External Deployment by You of the Original Work or a Derivative
Work as a distribution under section 1(c).

6) Attribution Rights. You must retain, in the Source Code of any
Derivative Works that You create, all copyright, patent, or
trademark notices from the Source Code of the Original Work, as
well as any notices of licensing and any descriptive text
identified therein as an "Attribution Notice." You must cause the
Source Code for any Derivative Works that You create to carry a
prominent Attribution Notice reasonably calculated to inform
recipients that You have modified the Original Work.

7) Warranty of Provenance and Disclaimer of Warranty. Licensor
warrants that the copyright in and to the Original Work and the
patent rights granted herein by Licensor are owned by the Licensor
or are sublicensed to You under the terms of this License with the
permission of the contributor(s) of those copyrights and patent
rights. Except as expressly stated in the immediately preceding
sentence, the Original Work is provided under this License on an
"AS IS" BASIS and WITHOUT WARRANTY, either express or implied,
including, without limitation, the warranties of non-infringement,
merchantability or fitness for a particular purpose. THE ENTIRE
RISK AS TO THE QUALITY OF THE ORIGINAL WORK IS WITH YOU. This
DISCLAIMER OF WARRANTY constitutes an essential part of this
License. No license to the Original Work is granted by this
License except under this disclaimer.

8) Limitation of Liability. Under no circumstances and under no legal
theory, whether in tort (including negligence), contract, or
otherwise, shall the Licensor be liable to anyone for any
indirect, special, incidental, or consequential damages of any
character arising as a result of this License or the use of the
Original Work including, without limitation, damages for loss of
goodwill, work stoppage, computer failure or malfunction, or any
and all other commercial damages or losses. This limitation of
liability shall not apply to the extent applicable law prohibits
such limitation.

9) Acceptance and Termination. If, at any time, You expressly
assented to this License, that assent indicates your clear and
irrevocable acceptance of this License and all of its terms and
conditions. If You distribute or communicate copies of the
Original Work or a Derivative Work, You must make a reasonable
effort under the circumstances to obtain the express assent of
recipients to the terms of this License. This License conditions
your rights to undertake the activities listed in Section 1,
including your right to create Derivative Works based upon the
Original Work, and doing so without honoring these terms and
conditions is prohibited by copyright law and international
treaty. Nothing in this License is intended to affect copyright
exceptions and limitations (including "fair use" or "fair
dealing"). This License shall terminate immediately and You may no
longer exercise any of the rights granted to You by this License
upon your failure to honor the conditions in Section 1(c).

10) Termination for Patent Action. This License shall terminate
automatically and You may no longer exercise any of the rights
granted to You by this License as of the date You commence an
action, including a cross-claim or counterclaim, against Licensor
or any licensee alleging that the Original Work infringes a
patent. This termination provision shall not apply for an action
alleging patent infringement by combinations of the Original Work
with other software or hardware.

11) Jurisdiction, Venue and Governing Law. Any action or suit relating
to this License may be brought only in the courts of a
jurisdiction wherein the Licensor resides or in which Licensor
conducts its primary business, and under the laws of that
jurisdiction excluding its conflict-of-law provisions. The
application of the United Nations Convention on Contracts for the
International Sale of Goods is expressly excluded. Any use of the
Original Work outside the scope of this License or after its
termination shall be subject to the requirements and penalties of
copyright or patent law in the appropriate jurisdiction. This
section shall survive the termination of this License.

12) Attorneys' Fees. In any action to enforce the terms of this
License or seeking damages relating thereto, the prevailing party
shall be entitled to recover its costs and expenses, including,
without limitation, reasonable attorneys' fees and costs incurred
in connection with such action, including any appeal of such
action. This section shall survive the termination of this
License.

13) Miscellaneous. If any provision of this License is held to be
unenforceable, such provision shall be reformed only to the extent
necessary to make it enforceable.

14) Definition of "You" in This License. "You" throughout this
License, whether in upper or lower case, means an individual or a
legal entity exercising rights under, and complying with all of
the terms of, this License. For legal entities, "You" includes any
entity that controls, is controlled by, or is under common control
with you. For purposes of this definition, "control" means (i) the
power, direct or indirect, to cause the direction or management of
such entity, whether by contract or otherwise, or (ii) ownership
of fifty percent (50%) or more of the outstanding shares, or (iii)
beneficial ownership of such entity.

15) Right to Use. You may use the Original Work in all ways not
otherwise restricted or conditioned by this License or by law, and
Licensor promises not to interfere with or be responsible for such
uses by You.

16) Modification of This License. This License is Copyright © 2005
Lawrence Rosen. Permission is granted to copy, distribute, or
communicate this License without modification. Nothing in this
License permits You to modify this License as applied to the
Original Work or to Derivative Works. However, You may modify the
text of this License and copy, distribute or communicate your
modified version (the "Modified License") and apply it to other
original works of authorship subject to the following conditions:
(i) You may not indicate in any way that your Modified License is
the "Academic Free License" or "AFL" and you may not use those
names in the name of your Modified License; (ii) You must replace
the notice specified in the first paragraph above with the notice
"Licensed under <insert your license name here>" or with a notice
of your own that is not confusingly similar to the notice in this
License; and (iii) You may not claim that your original works are
open source software unless your Modified License has been
approved by Open Source Initiative (OSI) and You comply with its
license review and certification process.





--
http://www.inventati.org/frx/frx-gpg-key-transition-2010.txt
New GnuPG key, see the transition document!
..................................................... Francesco Poli .
GnuPG key fpr == CA01 1147 9CD2 EFDF FB82 3925 3E1C 27E1 1F69 BFFE

[Francesco Poli]

On Sun, 30 Sep 2012 17:12:08 +0200 Francesco Poli wrote:

[...]

> My personal comments will follow shortly.

My own personal analysis of this license is included below.

> Academic Free License ("AFL") v. 3.0

[...]

>
> 3) Grant of Source Code License. The term "Source Code" means the
> preferred form of the Original Work for making modifications to it
> and all available documentation describing how to modify the
> Original Work.

This is problematic, as was in AFL v2.1: if I want to distribute
"Source Code", have I to ship *every* single piece of available
documentation that describes how to modify the Original Work?
Even independently written documentation?
Does this satisfy DFSG#9?

> Licensor agrees to provide a machine-readable copy
> of the Source Code of the Original Work along with each copy of
> the Original Work that Licensor distributes. Licensor reserves the
> right to satisfy this obligation by placing a machine-readable
> copy of the Source Code in an information repository reasonably
> calculated to permit inexpensive and convenient access by You for
> as long as Licensor continues to distribute the Original Work.

This is weird, as was in AFL v2.1: Licensor promises to distribute
source, but it seems that there is no requirement for the *licensee*
to do so.
This could weaken my concerns above...

The license indeed does not seem to attempt implementing a copyleft
mechanism, hence the *licensee* seems to have permission to distribute
non-source forms, without providing the corresponding source code.

[...]

>
> 5) External Deployment. The term "External Deployment" means the use,
> distribution, or communication of the Original Work or Derivative
> Works in any way such that the Original Work or Derivative Works
> may be used by anyone other than You, whether those works are
> distributed or communicated to those persons or made available as
> an application intended for use over a network. As an express
> condition for the grants of license hereunder, You must treat any
> External Deployment by You of the Original Work or a Derivative
> Work as a distribution under section 1(c).

This is an Affero-like restriction: use through network is assimilated
to distribution.
This means that, among other restrictions, the obligation to obtain
express license acceptance assent from recipients also extends to
remote users (through the network).
I would say that this clause makes other non-free restrictions even
worse.

>
> 6) Attribution Rights. You must retain, in the Source Code of any
> Derivative Works that You create, all copyright, patent, or
> trademark notices from the Source Code of the Original Work, as
> well as any notices of licensing and any descriptive text
> identified therein as an "Attribution Notice."

This is basically unchanged from AFL v2.1 and concerns me: any section
marked as "Attribution Notice" must be retained. Regardless of what
it actually contains? Looks like some sort of unremovable (or even
possibly unmodifiable?) section...
Seems to conflict with DFSG#3...

As Andrew Suffield commented on AFL v2.1: that's non-free if there
are any significant 'Attribution Notice's.
This is a thinly disguised variation on 'Invariant Sections'.

[...]

>
> 9) Acceptance and Termination. If, at any time, You expressly
> assented to this License, that assent indicates your clear and
> irrevocable acceptance of this License and all of its terms and
> conditions. If You distribute or communicate copies of the
> Original Work or a Derivative Work, You must make a reasonable
> effort under the circumstances to obtain the express assent of
> recipients to the terms of this License.

This is almost unchanged from AFL v2.1 and is my main concern:
distributors must obtain express license acceptance assent from
recipients.
This is non-free, I would say. DFSG#1?
Because of the Affero-like clause, this assent must be obtained from
remote users, too.
This makes it even worse.

As MJ Ray commented on AFL v2.1, this is also a practical problem
for Debian mirrors, regardless of any DFSG consideration.

[...]

>
> 10) Termination for Patent Action. This License shall terminate
> automatically and You may no longer exercise any of the rights
> granted to You by this License as of the date You commence an
> action, including a cross-claim or counterclaim, against Licensor
> or any licensee alleging that the Original Work infringes a
> patent. This termination provision shall not apply for an action
> alleging patent infringement by combinations of the Original Work
> with other software or hardware.

This is problematic, even though I've seen clauses that are even worse.
There is no clear consensus about the DFSG-freeness of such a clause.
Some think clauses like this are OK, others think they are non-free,
and/or too broad.

>
> 11) Jurisdiction, Venue and Governing Law. Any action or suit relating
> to this License may be brought only in the courts of a
> jurisdiction wherein the Licensor resides or in which Licensor
> conducts its primary business, and under the laws of that
> jurisdiction excluding its conflict-of-law provisions.

This is choice of law (acceptable), but also choice of venue (non-free
in many debian-legal regulars' opinion, but not in everyone's).

> The
> application of the United Nations Convention on Contracts for the
> International Sale of Goods is expressly excluded.

This Convention allows its own exclusion, if both parties agree to
exclude it (as was explained to me by Arnoud Engelfriet, during the
AFL v2.1 analysis). Hence, this exclusion is possible, but this license
is intended to a common-law contract, rather than a unilateral grant
(as confirmed by other clauses, too).

Being a common-law-contract is troublesome, for the licensee could
result in having given up a freedom that he/she had before accepting the
contract. Even if the triggering clause is subtle and we don't notice
the issue.
With a unilateral license grant, we are guaranteed that no pre-existing
right can disappear upon the act of copying, distributing or modifying
and distributing...

[...]

>
> 12) Attorneys' Fees. In any action to enforce the terms of this
> License or seeking damages relating thereto, the prevailing party
> shall be entitled to recover its costs and expenses, including,
> without limitation, reasonable attorneys' fees and costs incurred
> in connection with such action, including any appeal of such
> action. This section shall survive the termination of this
> License.

This section is basically unchanged from AFL v2.1: Andrew Suffield
commented that this is probably non-free ("Greedy lawyer bitch-clause").