For Approval: Common Public Attribution License (CPAL)

[Ross Mayfield]

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To OSI License Discuss,

Socialtext hereby submits the Common Public Attribution License for
consideration by OSI and discussion with our larger community.  It is
our honor to follow this process and we do not consider ourselves open
source, nor OSI-Certified, until and if our products are under an OSI
approved license.

1. The Common Public Attribution License ("CPAL") is based on the MPL
which has been approved and all of the new provisions are in Sections
14 and 15 (and Exhibit B) and  adding "Original Developer"  to certain
disclaimers ("Original Developer" is a term defined in the new
provisions for those who originally created the program who may be
different from the "Initial Developer"). Section 14 provides for an
attribution notice based on the Adaptive Public License and Section 15
provides for a network use provision based on the commonly used
provision on "External Deployment" found in the Apple Public License,
Real Network Public License and the Open Software License. We have
used the Adaptive Public License, which is virtually the sames as the
prior attribution provision which was in Exhibit B of the proposed
Socialtext Public License,  as the basis for the attribution provision
because it was approved after OSD 10 was adopted. We have limited the
placement requirement for attribution notice to "prominent" rather
than a specified size or location. We have also permitted the use of
splash screens. The term "prominent" is frequently used in other OSI
approved licenses such as the GPL and NASA Public License. Socialtext
believes that the application software has special needs as compared
to operating systems because of the application software can be used
anonymously in large distributions and can be used to provide services
through an ASP which does not provide modifications back to the
community. None of the approved OSI approved licenses include both a
network use provision and an attribution provision. We have limited
the new provisions to those which are either the same or very close to
provisions from existing licenses (see above).

2. The license can be used with any software which is licensed under
the MPL and licenses compatible with the MPL. The CPAL will take
precedence for combined works. Some licenses such as the GPL which are
incompatible with the MPL are also incompatible to the CPAL.

The license is attached in text and HTML formats, as submitted to
License-Approval.  We would not have gotten this far without the
feedback from this list.  Looking forward to the conversation,

Ross
--
--
Ross Mayfield
CEO & Co-founder
Socialtext
1-877-GET-WIKI, ext. 809
655 High St. Palo Alto, CA 94301
ross.mayfield@...
company: http://www.socialtext.com
blog: http://ross.typepad.com
this email is: [ x ] bloggable [  ] ask first [ ] private

Common Public Attribution License Version 1.0 (CPAL)
1. �Definitions�
        1.0.1 �Commercial Use� means distribution or otherwise making the Covered Code available to a third party.
1.1 �Contributor� means each entity that creates or contributes to the creation of Modifications.
1.2 �Contributor Version� means the combination of the Original Code, prior Modifications used by a Contributor, and the Modifications made by that particular Contributor.
1.3 �Covered Code� means the Original Code or Modifications or the combination of the Original Code and Modifications, in each case including portions thereof.
1.4 �Electronic Distribution Mechanism� means a mechanism generally accepted in the software development community for the electronic transfer of data.
1.5 �Executable� means Covered Code in any form other than Source Code.
1.6 �Initial Developer� means the individual or entity identified as the Initial Developer in the Source Code notice required by Exhibit A.
1.7 �Larger Work� means a work which combines Covered Code or portions thereof with code not governed by the terms of this License.
1.8 �License� means this document.
1.8.1 �Licensable� means having the right to grant, to the maximum extent possible, whether at the time of the initial grant or subsequently acquired, any and all of the rights conveyed herein.
1.9 �Modifications� means any addition to or deletion from the substance or structure of either the Original Code or any previous Modifications. When Covered Code is released as a series of files, a Modification is:
A. Any addition to or deletion from the contents of a file containing Original Code or previous Modifications.
B. Any new file that contains any part of the Original Code or previous Modifications.
1.10 �Original Code� means Source Code of computer software code which is described in the Source Code notice required by Exhibit A as Original Code, and which, at the time of its release under this License is not already Covered Code governed by this License.
1.10.1 �Patent Claims� means any patent claim(s), now owned or hereafter acquired, including without limitation,  method, process, and apparatus claims, in any patent Licensable by grantor.
1.11 �Source Code� means the preferred form of the Covered Code for making modifications to it, including all modules it contains, plus any associated interface definition files, scripts used to control compilation and installation of an Executable, or source code differential comparisons against either the Original Code or another well known, available Covered Code of the Contributor�s choice.  The Source Code can be in a compressed or archival form, provided the appropriate decompression or de-archiving software is widely available for no charge.
1.12 �You� (or �Your�) means an individual or a legal entity exercising rights under, and complying with all of the terms of, this License or a future version of this License issued under Section 6.1.  For legal entities, �You� includes any entity which controls, is controlled by, or is under common control with You. For purposes of this definition, �control� means (a) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (b) ownership of more than fifty percent (50%) of the outstanding shares or beneficial ownership of such entity.
2. Source Code License.
2.1 The Initial Developer Grant.
The Initial Developer hereby grants You a world-wide, royalty-free, non-exclusive license, subject to third party intellectual property claims:
        (a) under intellectual property rights (other than patent or trademark) Licensable by Initial Developer to use, reproduce, modify, display, perform, sublicense and distribute the Original Code (or portions thereof) with or without Modifications, and/or as part of a Larger Work; and
        (b) under Patents Claims infringed by the making, using or selling of Original Code, to make, have made, use, practice, sell, and offer for sale, and/or otherwise dispose of the Original Code (or portions thereof).
        (c) the licenses granted in this Section 2.1(a) and (b) are effective on the date Initial Developer first distributes Original Code under the terms of this License.
        (d) Notwithstanding Section 2.1(b) above, no patent license is granted: 1) for code that You delete from the Original Code; 2) separate from the Original Code;  or 3) for infringements caused by: i) the modification of the Original Code or ii) the combination of the Original Code with other software or devices.
2.2 Contributor Grant.
Subject to third party intellectual property claims, each Contributor hereby grants You a world-wide, royalty-free, non-exclusive license
        (a) under intellectual property rights (other than patent or trademark) Licensable by Contributor, to use, reproduce, modify, display, perform, sublicense and distribute the Modifications created by such Contributor (or portions thereof) either on an unmodified basis, with other Modifications, as Covered Code and/or as part of a Larger Work; and
        (b) under Patent Claims infringed by the making, using, or selling of Modifications made by that Contributor either alone and/or in combination with its Contributor Version (or portions of such combination), to make, use, sell, offer for sale, have made, and/or otherwise dispose of:  1) Modifications made by that Contributor (or portions thereof); and 2) the combination of  Modifications made by that Contributor with its Contributor Version (or portions of such combination).
        (c) the licenses granted in Sections 2.2(a) and 2.2(b) are effective on the date Contributor first makes Commercial Use of the Covered Code.
        (d) Notwithstanding Section 2.2(b) above, no patent license is granted:  1) for any code that Contributor has deleted from the Contributor Version; 2) separate from the Contributor Version; 3) for infringements caused by:  i) third party modifications of Contributor Version or ii) the combination of Modifications made by that Contributor with other software (except as part of the Contributor Version) or other devices; or 4) under Patent Claims infringed by Covered Code in the absence of Modifications made by that Contributor.
3. Distribution Obligations.
3.1 Application of License.
The Modifications which You create or to which You contribute are governed by the terms of this License, including without limitation Section 2.2.  The Source Code version of Covered Code may be distributed only under the terms of this License or a future version of this License released under Section 6.1, and You must include a copy of this License with every copy of the Source Code You distribute.  You may not offer or impose any terms on any Source Code version that alters or restricts the applicable version of this License or the recipients� rights hereunder.  However, You may include an additional document offering the additional rights described in Section 3.5.
3.2 Availability of Source Code.
Any Modification which You create or to which You contribute must be made available in Source Code form under the terms of this License either on the same media as an Executable version or via an accepted Electronic Distribution Mechanism to anyone to whom you made an Executable version available; and if made available via Electronic Distribution Mechanism, must remain available for at least twelve (12) months after the date it initially became available, or at least six (6) months after a subsequent version of that particular Modification has been made available to such recipients.  You are responsible for ensuring that the Source Code version remains available even if the Electronic Distribution Mechanism is maintained by a third party.
3.3 Description of Modifications.
You must cause all Covered Code to which You contribute to contain a file documenting the changes You made to create that Covered Code and the date of any change.  You must include a prominent statement that the Modification is derived, directly or indirectly, from Original Code provided by the Initial Developer and including the name of the Initial Developer in (a) the Source Code, and (b) in any notice in an Executable version or related documentation in which You describe the origin or ownership of the Covered Code.
3.4 Intellectual Property Matters
        (a) Third Party Claims.
If Contributor has knowledge that a license under a third party�s intellectual property rights is required to exercise the rights granted by such Contributor under Sections 2.1 or 2.2, Contributor must include a text file with the Source Code distribution titled �LEGAL� which describes the claim and the party making the claim in sufficient detail that a recipient will know whom to contact.  If Contributor obtains such knowledge after the Modification is made available as described in Section 3.2, Contributor shall promptly modify the LEGAL file in all copies Contributor makes available thereafter and shall take other steps (such as notifying appropriate mailing lists or newsgroups) reasonably calculated to inform those who received the Covered Code that new knowledge has been obtained.
        (b) Contributor APIs.
If Contributor�s Modifications include an application programming interface and Contributor has knowledge of patent licenses which are reasonably necessary to implement that API, Contributor must also include this information in the LEGAL file.
        (c) Representations.
Contributor represents that, except as disclosed pursuant to Section 3.4(a) above, Contributor believes that Contributor�s Modifications are Contributor�s original creation(s) and/or Contributor has sufficient rights to grant the rights conveyed by this License.
3.5 Required Notices.
You must duplicate the notice in Exhibit A in each file of the Source Code.  If it is not possible to put such notice in a particular Source Code file due to its structure, then You must include such notice in a location (such as a relevant directory) where a user would be likely to look for such a notice.  If You created one or more Modification(s) You may add your name as a Contributor to the notice described in Exhibit A.  You must also duplicate this License in any documentation for the Source Code where You describe recipients� rights or ownership rights relating to Covered Code.  You may choose to offer, and to charge a fee for, warranty, support, indemnity or liability obligations to one or more recipients of Covered Code.  However, You may do so only on Your own behalf, and not on behalf of the Initial Developer or any Contributor.  You must make it absolutely clear than any such warranty, support, indemnity or liability obligation is offered by You alone, and You hereby agree to indemnify the Initial Developer and every Contributor for any liability incurred by the Initial Developer or such Contributor as a result of warranty, support, indemnity or liability terms You offer.
3.6 Distribution of Executable Versions.
You may distribute Covered Code in Executable form only if the requirements of Section 3.1-3.5 have been met for that Covered Code, and if You include a notice stating that the Source Code version of the Covered Code is available under the terms of this License, including a description of how and where You have fulfilled the obligations of Section 3.2.  The notice must be conspicuously included in any notice in an Executable version, related documentation or collateral in which You describe recipients� rights relating to the Covered Code.  You may distribute the Executable version of Covered Code or ownership rights under a license of Your choice, which may contain terms different from this License, provided that You are in compliance with the terms of this License and that the license for the Executable version does not attempt to limit or alter the recipient�s rights in the Source Code version from the rights set forth in this License.  If You distribute the Executable version under a different license  You must make it absolutely clear that any terms which differ from this License are offered by You alone, not by the Initial Developer, Original Developer or any Contributor.  You hereby agree to indemnify the Initial Developer, Original Developer and every Contributor for any liability incurred by the Initial Developer, Original Developer or such Contributor as a result of any such terms You offer.
3.7 Larger Works.
You may create a Larger Work by combining Covered Code with other code not governed by the terms of this License and distribute the Larger Work as a single product. In such a case, You must make sure the requirements of this License are fulfilled for the Covered Code.
4. Inability to Comply Due to Statute or Regulation.
If it is impossible for You to comply with any of the terms of this License with respect to some or all of the Covered Code due to statute, judicial order, or regulation then You must:  (a) comply with the terms of this License to the maximum extent possible; and (b) describe the limitations and the code they affect.  Such description must be included in the LEGAL file described in Section 3.4 and must be included with all distributions of the Source Code.  Except to the extent prohibited by statute or regulation, such description must be sufficiently detailed for a recipient of ordinary skill to be able to understand it.
5. Application of this License.
This License applies to code to which the Initial Developer has attached the notice in Exhibit A and to related Covered Code.
6. Versions of the License.
6.1 New Versions.
Socialtext, Inc. (�Socialtext�) may publish revised and/or new versions of the License from time to time. Each version will be given a distinguishing version number.
6.2 Effect of New Versions.  
Once Covered Code has been published under a particular version of the License, You may always continue to use it under the terms of that version.  You may also choose to use such Covered Code under the terms of any subsequent version of the License published by Socialtext.  No one other than Socialtext has the right to modify the terms applicable to Covered Code created under this License.
6.3 Derivative Works.
If You create or use a modified version of this License (which you may only do in order to apply it to code which is not already Covered Code governed by this License), You must (a) rename Your license so that the phrases �Socialtext�, �CPAL� or any confusingly similar phrase do not appear in your license (except to note that your license differs from this License) and (b) otherwise make it clear that Your version of the license contains terms which differ from the CPAL.  (Filling in the name of the Initial Developer, Original Developer, Original Code or Contributor in the notice described in Exhibit A shall not of themselves be deemed to be modifications of this License.)
7. DISCLAIMER OF WARRANTY.
COVERED CODE IS PROVIDED UNDER THIS LICENSE ON AN �AS IS� BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE COVERED CODE IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE COVERED CODE IS WITH YOU. SHOULD ANY COVERED CODE PROVE DEFECTIVE IN ANY RESPECT, YOU (NOT THE INITIAL DEVELOPER, ORIGINAL DEVELOPER OR ANY OTHER CONTRIBUTOR) ASSUME THE COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO USE OF ANY COVERED CODE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
8. TERMINATION.
8.1 This License and the rights granted hereunder will terminate automatically if You fail to comply with terms herein and fail to cure such breach within 30 days of becoming aware of the breach.  All sublicenses to the Covered Code which are properly granted shall survive any termination of this License.  Provisions which, by their nature, must remain in effect beyond the termination of this License shall survive.
8.2 If You initiate litigation by asserting a patent infringement claim (excluding declatory judgment actions) against Initial Developer, Original Developer or a Contributor (the Initial Developer, Original Developer or Contributor against whom You file such action is referred to as �Participant�) alleging that:
        (a) such Participant�s Contributor Version directly or indirectly infringes any patent, then any and all rights granted by such Participant to You under Sections 2.1 and/or 2.2 of this License shall, upon 60 days notice from Participant terminate prospectively, unless if within 60 days after receipt of notice You either:  (i) agree in writing to pay Participant a mutually agreeable reasonable royalty for Your past and future use of Modifications made by such Participant, or (ii) withdraw Your litigation claim with respect to the Contributor Version against such Participant.  If within 60 days of notice, a reasonable royalty and payment arrangement are not mutually agreed upon in writing by the parties or the litigation claim is not withdrawn, the rights granted by Participant to You under Sections 2.1 and/or 2.2 automatically terminate at the expiration of the 60 day notice period specified above.
        (b) any software, hardware, or device, other than such Participant�s Contributor Version, directly or indirectly infringes any patent, then any rights granted to You by such Participant under Sections 2.1(b) and 2.2(b) are revoked effective as of the date You first made, used, sold, distributed, or had made, Modifications made by that Participant.
8.3 If You assert a patent infringement claim against Participant alleging that such Participant�s Contributor Version directly or indirectly infringes any patent where such claim is resolved (such as by license or settlement) prior to the initiation of patent infringement litigation, then the reasonable value of the licenses granted by such Participant under Sections 2.1 or 2.2 shall be taken into account in determining the amount or value of any payment or license.
8.4 In the event of termination under Sections 8.1 or 8.2 above,  all end user license agreements (excluding distributors and resellers) which have been validly granted by You or any distributor hereunder prior to termination shall survive termination.
9. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL YOU, THE INITIAL DEVELOPER, ORIGINAL DEVELOPER, ANY OTHER CONTRIBUTOR, OR ANY DISTRIBUTOR OF COVERED CODE, OR ANY SUPPLIER OF ANY OF SUCH PARTIES, BE LIABLE TO ANY PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SUCH PARTY�S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
10. U.S. GOVERNMENT END USERS.
The Covered Code is a �commercial item,� as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of �commercial computer software� and �commercial computer software documentation,� as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire Covered Code with only those rights set forth herein.
11. MISCELLANEOUS.
This License represents the complete agreement concerning subject matter hereof.  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.  This License shall be governed by California law provisions (except to the extent applicable law, if any, provides otherwise), excluding its conflict-of-law provisions.  With respect to disputes in which at least one party is a citizen of, or an entity chartered or registered to do business in the United States of America, any litigation relating to this License shall be subject to the jurisdiction of the Federal Courts of the Northern District of California, with venue lying in Santa Clara County, California, with the losing party responsible for costs, including without limitation, court costs and reasonable attorneys� fees and expenses.  The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.  Any law or regulation which provides that the language of a contract shall be construed against the drafter shall not apply to this License.
12. RESPONSIBILITY FOR CLAIMS.
As between Initial Developer, Original Developer and the Contributors, each party is responsible for claims and damages arising, directly or indirectly, out of its utilization of rights under this License and You agree to work with Initial Developer, Original Developer and Contributors to distribute such responsibility on an equitable basis.  Nothing herein is intended or shall be deemed to constitute any admission of liability.
13. MULTIPLE-LICENSED CODE.
Initial Developer may designate portions of the Covered Code as Multiple-Licensed.  Multiple-Licensed means that the Initial Developer permits you to utilize portions of the Covered Code under Your choice of the CPAL or the alternative licenses, if any, specified by the Initial Developer in the file described in Exhibit A.
14. ADDITIONAL TERM: ATTRIBUTION
        (a) As a modest attribution to the organizer of the development of the Original Code (�Original Developer�), in the hope that its promotional value may help justify the time, money and effort invested in writing the Original Code, the Original Developer may include in Exhibit B (�Attribution Notice�) a requirement that each time an Executable and Source Code or a Larger Work is launched or run, a prominent display of the Original Developer�s Attribution Notice (as defined below) must occur on the graphic user interface (which may include display on a splash screen), if any.  If the Executable and Source Code does not launch or run a graphic user interface, this obligation shall not apply.  If the Original Code displays such Attribution Notice in a particular form (such as in the form of a splash screen, notice at login, an �about� display, or dedicated attribution area on user interface screens), continued use of such form for that Attribution Notice will meet this requirement for notice.
        (b) Attribution information may only include a copyright notice, a brief phrase, graphic image and a URL (�Attribution Notice�) and is subject to the Attribution Limits as defined below.  For these purposes, prominent shall have its normal meaning, but shall require that (a) the display be of sufficient duration to give reasonable notice to the user of the identity of the Original Developer and (b) if You include Attribution Notice or similar information for other parties, You must ensure that the Attribution  Notice for the Original Developer shall be no less prominent than such Attribution Notice or similar information for the other party.  For greater certainty, the Original Developer may choose to specify in Exhibit B below that the above attribution requirement only applies to an Executable and Source Code resulting from the Original Code or any Modification, but not a Larger Work.  The intent is to provide for reasonably modest attribution, therefore the Original Developer cannot require that You display, at any time, more than the following information as Attribution Notice:  (a) a copyright notice including the name of the Original Developer; (b) a word or one phrase (not exceeding 10 words); (c) one graphic provided by the Original Developer; and (d) a URL (collectively, the �Attribution Limits�).
        (c) If Exhibit B does not include any Attribution Notice, then there are no requirements for You to display any Attribution Notice for the Original Developer.
        (d) You acknowledge that all trademarks, service marks and/or trade names contained within the Attribution Notice distributed with the Covered Code are the exclusive property of their owners and may only be used with the permission of their owners, or under circumstances otherwise permitted by law or as expressly set out in this License.
15. ADDITIONAL TERM: NETWORK USE.
The term �External Deployment� means the use, distribution, or communication of the Original Code or Modifications in any way such that the Original Code or Modifications 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 Code or Modifications as a distribution under section 3.1 and make Source Code available under Section 3.2.
 


EXHIBIT A.  Common Public Attribution License Version 1.0.
�The contents of this file are subject to the Common Public Attribution License Version 1.0 (the �License�); you may not use this file except in compliance with the License. You may obtain a copy of the License at _____________.  The License is based on the Mozilla Public License Version 1.1 but Sections 14 and 15 have been added to cover use of software over a computer network and provide for limited attribution for the Original Developer. In addition, Exhibit A has been modified to be consistent with Exhibit B.
Software distributed under the License is distributed on an �AS IS� basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the License for the specific language governing rights and limitations under the License.
The Original Code is______________________.
The Original Developer  is not the Initial Developer and is __________. If left blank, the Original Developer is the Initial Developer.
The Initial Developer of the Original Code is ____________. All portions of the code written by ___________ are Copyright (c) _____. All Rights Reserved.
Contributor ______________________.
Alternatively, the contents of this file may be used under the terms of the _____ license (the  [___] License), in which case the provisions of [______] License are applicable  instead of those above.
If you wish to allow use of your version of this file only under the terms of the [____] License and not to allow others to use your version of this file under the CPAL, indicate your decision by deleting  the provisions above and replace  them with the notice and other provisions required by the [___] License.  If you do not delete the provisions above, a recipient may use your version of this file under either the CPAL or the [___] License.�
[NOTE: The text of this Exhibit A may differ slightly from the text of the notices in the Source Code files of the Original Code.  You should use the text of this Exhibit A rather than the text found in the Original Code Source Code for Your Modifications.]
 


EXHIBIT B.  Attribution Notice
Attribution Copyright Notice: _______________________
Attribution Phrase (not exceeding 10 words): _______________________
Attribution URL: _______________________
Display of Attribution Notice is [required/not required] in Larger Works which are defined in the CPAL as a work which combines Covered Code or portions thereof with code not governed by the terms of the CPAL.








PA\10507656.1
359939-1

Common Public Attribution License Version 1.0 (CPAL)

1.�������� �Definitions�

����������� 1.0.1��� �Commercial Use� means distribution or otherwise making the Covered Code available to a third party.

1.1������ �Contributor� means each entity that creates or contributes to the creation of Modifications.

1.2������ �Contributor Version� means the combination of the Original Code, prior Modifications used by a Contributor, and the Modifications made by that particular Contributor.

1.3������ �Covered Code� means the Original Code or Modifications or the combination of the Original Code and Modifications, in each case including portions thereof.

1.4������ �Electronic Distribution Mechanism� means a mechanism generally accepted in the software development community for the electronic transfer of data.

1.5������ �Executable� means Covered Code in any form other than Source Code.

1.6������ �Initial Developer� means the individual or entity identified as the Initial Developer in the Source Code notice required by Exhibit A.

1.7������ �Larger Work� means a work which combines Covered Code or portions thereof with code not governed by the terms of this License.

1.8������ �License� means this document.

1.8.1��� �Licensable� means having the right to grant, to the maximum extent possible, whether at the time of the initial grant or subsequently acquired, any and all of the rights conveyed herein.

1.9������ �Modifications� means any addition to or deletion from the substance or structure of either the Original Code or any previous Modifications. When Covered Code is released as a series of files, a Modification is:

A.������� Any addition to or deletion from the contents of a file containing Original Code or previous Modifications.

B.�������� Any new file that contains any part of the Original Code or previous Modifications.

1.10���� �Original Code� means Source Code of computer software code which is described in the Source Code notice required by Exhibit A as Original Code, and which, at the time of its release under this License is not already Covered Code governed by this License.

1.10.1� �Patent Claims� means any patent claim(s), now owned or hereafter acquired, including without limitation,� method, process, and apparatus claims, in any patent Licensable by grantor.

1.11���� �Source Code� means the preferred form of the Covered Code for making modifications to it, including all modules it contains, plus any associated interface definition files, scripts used to control compilation and installation of an Executable, or source code differential comparisons against either the Original Code or another well known, available Covered Code of the Contributor�s choice.� The Source Code can be in a compressed or archival form, provided the appropriate decompression or de-archiving software is widely available for no charge.

1.12���� �You� (or �Your�) means an individual or a legal entity exercising rights under, and complying with all of the terms of, this License or a future version of this License issued under Section 6.1.� For legal entities, �You� includes any entity which controls, is controlled by, or is under common control with You. For purposes of this definition, �control� means (a) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (b) ownership of more than fifty percent (50%) of the outstanding shares or beneficial ownership of such entity.

2.�������� Source Code License.

2.1������ The Initial Developer Grant.

The Initial Developer hereby grants You a world-wide, royalty-free, non-exclusive license, subject to third party intellectual property claims:

����������� (a)������� under intellectual property rights (other than patent or trademark) Licensable by Initial Developer to use, reproduce, modify, display, perform, sublicense and distribute the Original Code (or portions thereof) with or without Modifications, and/or as part of a Larger Work; and

����������� (b)������� under Patents Claims infringed by the making, using or selling of Original Code, to make, have made, use, practice, sell, and offer for sale, and/or otherwise dispose of the Original Code (or portions thereof).

����������� (c)������� the licenses granted in this Section 2.1(a) and (b) are effective on the date Initial Developer first distributes Original Code under the terms of this License.

����������� (d)������� Notwithstanding Section 2.1(b) above, no patent license is granted: 1) for code that You delete from the Original Code; 2) separate from the Original Code;� or 3) for infringements caused by: i) the modification of the Original Code or ii) the combination of the Original Code with other software or devices.

2.2������ Contributor Grant.

Subject to third party intellectual property claims, each Contributor hereby grants You a world-wide, royalty-free, non-exclusive license

����������� (a)������� under intellectual property rights (other than patent or trademark) Licensable by Contributor, to use, reproduce, modify, display, perform, sublicense and distribute the Modifications created by such Contributor (or portions thereof) either on an unmodified basis, with other Modifications, as Covered Code and/or as part of a Larger Work; and

����������� (b)������� under Patent Claims infringed by the making, using, or selling of Modifications made by that Contributor either alone and/or in combination with its Contributor Version (or portions of such combination), to make, use, sell, offer for sale, have made, and/or otherwise dispose of:� 1) Modifications made by that Contributor (or portions thereof); and 2) the combination of� Modifications made by that Contributor with its Contributor Version (or portions of such combination).

����������� (c)������� the licenses granted in Sections 2.2(a) and 2.2(b) are effective on the date Contributor first makes Commercial Use of the Covered Code.

����������� (d)������� Notwithstanding Section 2.2(b) above, no patent license is granted:� 1) for any code that Contributor has deleted from the Contributor Version; 2) separate from the Contributor Version; 3) for infringements caused by:� i) third party modifications of Contributor Version or ii) the combination of Modifications made by that Contributor with other software (except as part of the Contributor Version) or other devices; or 4) under Patent Claims infringed by Covered Code in the absence of Modifications made by that Contributor.

3.�������� Distribution Obligations.

3.1������ Application of License.

The Modifications which You create or to which You contribute are governed by the terms of this License, including without limitation Section 2.2.� The Source Code version of Covered Code may be distributed only under the terms of this License or a future version of this License released under Section 6.1, and You must include a copy of this License with every copy of the Source Code You distribute.� You may not offer or impose any terms on any Source Code version that alters or restricts the applicable version of this License or the recipients� rights hereunder.� However, You may include an additional document offering the additional rights described in Section 3.5.

3.2������ Availability of Source Code.

Any Modification which You create or to which You contribute must be made available in Source Code form under the terms of this License either on the same media as an Executable version or via an accepted Electronic Distribution Mechanism to anyone to whom you made an Executable version available; and if made available via Electronic Distribution Mechanism, must remain available for at least twelve (12) months after the date it initially became available, or at least six (6) months after a subsequent version of that particular Modification has been made available to such recipients.� You are responsible for ensuring that the Source Code version remains available even if the Electronic Distribution Mechanism is maintained by a third party.

3.3������ Description of Modifications.

You must cause all Covered Code to which You contribute to contain a file documenting the changes You made to create that Covered Code and the date of any change.� You must include a prominent statement that the Modification is derived, directly or indirectly, from Original Code provided by the Initial Developer and including the name of the Initial Developer in (a) the Source Code, and (b) in any notice in an Executable version or related documentation in which You describe the origin or ownership of the Covered Code.

3.4������ Intellectual Property Matters

����������� (a)������� Third Party Claims.

If Contributor has knowledge that a license under a third party�s intellectual property rights is required to exercise the rights granted by such Contributor under Sections 2.1 or 2.2, Contributor must include a text file with the Source Code distribution titled �LEGAL� which describes the claim and the party making the claim in sufficient detail that a recipient will know whom to contact.� If Contributor obtains such knowledge after the Modification is made available as described in Section 3.2, Contributor shall promptly modify the LEGAL file in all copies Contributor makes available thereafter and shall take other steps (such as notifying appropriate mailing lists or newsgroups) reasonably calculated to inform those who received the Covered Code that new knowledge has been obtained.

����������� (b)������� Contributor APIs.

If Contributor�s Modifications include an application programming interface and Contributor has knowledge of patent licenses which are reasonably necessary to implement that API, Contributor must also include this information in the LEGAL file.

����������� (c)������� Representations.

Contributor represents that, except as disclosed pursuant to Section 3.4(a) above, Contributor believes that Contributor�s Modifications are Contributor�s original creation(s) and/or Contributor has sufficient rights to grant the rights conveyed by this License.

3.5������ Required Notices.

You must duplicate the notice in Exhibit A in each file of the Source Code.� If it is not possible to put such notice in a particular Source Code file due to its structure, then You must include such notice in a location (such as a relevant directory) where a user would be likely to look for such a notice.� If You created one or more Modification(s) You may add your name as a Contributor to the notice described in Exhibit A.� You must also duplicate this License in any documentation for the Source Code where You describe recipients� rights or ownership rights relating to Covered Code.� You may choose to offer, and to charge a fee for, warranty, support, indemnity or liability obligations to one or more recipients of Covered Code.� However, You may do so only on Your own behalf, and not on behalf of the Initial Developer or any Contributor.� You must make it absolutely clear than any such warranty, support, indemnity or liability obligation is offered by You alone, and You hereby agree to indemnify the Initial Developer and every Contributor for any liability incurred by the Initial Developer or such Contributor as a result of warranty, support, indemnity or liability terms You offer.

3.6������ Distribution of Executable Versions.

You may distribute Covered Code in Executable form only if the requirements of Section 3.1-3.5 have been met for that Covered Code, and if You include a notice stating that the Source Code version of the Covered Code is available under the terms of this License, including a description of how and where You have fulfilled the obligations of Section 3.2.� The notice must be conspicuously included in any notice in an Executable version, related documentation or collateral in which You describe recipients� rights relating to the Covered Code.� You may distribute the Executable version of Covered Code or ownership rights under a license of Your choice, which may contain terms different from this License, provided that You are in compliance with the terms of this License and that the license for the Executable version does not attempt to limit or alter the recipient�s rights in the Source Code version from the rights set forth in this License.� If You distribute the Executable version under a different license� You must make it absolutely clear that any terms which differ from this License are offered by You alone, not by the Initial Developer, Original Developer or any Contributor.� You hereby agree to indemnify the Initial Developer, Original Developer and every Contributor for any liability incurred by the Initial Developer, Original Developer or such Contributor as a result of any such terms You offer.

3.7������ Larger Works.

You may create a Larger Work by combining Covered Code with other code not governed by the terms of this License and distribute the Larger Work as a single product. In such a case, You must make sure the requirements of this License are fulfilled for the Covered Code.

4.�������� Inability to Comply Due to Statute or Regulation.

If it is impossible for You to comply with any of the terms of this License with respect to some or all of the Covered Code due to statute, judicial order, or regulation then You must:� (a) comply with the terms of this License to the maximum extent possible; and (b) describe the limitations and the code they affect.� Such description must be included in the LEGAL file described in Section 3.4 and must be included with all distributions of the Source Code.� Except to the extent prohibited by statute or regulation, such description must be sufficiently detailed for a recipient of ordinary skill to be able to understand it.

5.�������� Application of this License.

This License applies to code to which the Initial Developer has attached the notice in Exhibit A and to related Covered Code.

6.�������� Versions of the License.

6.1������ New Versions.

Socialtext, Inc. (�Socialtext�) may publish revised and/or new versions of the License from time to time. Each version will be given a distinguishing version number.

6.2������ Effect of New Versions.�

Once Covered Code has been published under a particular version of the License, You may always continue to use it under the terms of that version.� You may also choose to use such Covered Code under the terms of any subsequent version of the License published by Socialtext.� No one other than Socialtext has the right to modify the terms applicable to Covered Code created under this License.

6.3������ Derivative Works.

If You create or use a modified version of this License (which you may only do in order to apply it to code which is not already Covered Code governed by this License), You must (a) rename Your license so that the phrases �Socialtext�, �CPAL� or any confusingly similar phrase do not appear in your license (except to note that your license differs from this License) and (b) otherwise make it clear that Your version of the license contains terms which differ from the CPAL.� (Filling in the name of the Initial Developer, Original Developer, Original Code or Contributor in the notice described in Exhibit A shall not of themselves be deemed to be modifications of this License.)

7.�������� DISCLAIMER OF WARRANTY.

COVERED CODE IS PROVIDED UNDER THIS LICENSE ON AN �AS IS� BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE COVERED CODE IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE COVERED CODE IS WITH YOU. SHOULD ANY COVERED CODE PROVE DEFECTIVE IN ANY RESPECT, YOU (NOT THE INITIAL DEVELOPER, ORIGINAL DEVELOPER OR ANY OTHER CONTRIBUTOR) ASSUME THE COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO USE OF ANY COVERED CODE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.

8.�������� TERMINATION.

8.1������ This License and the rights granted hereunder will terminate automatically if You fail to comply with terms herein and fail to cure such breach within 30 days of becoming aware of the breach.� All sublicenses to the Covered Code which are properly granted shall survive any termination of this License.� Provisions which, by their nature, must remain in effect beyond the termination of this License shall survive.

8.2������ If You initiate litigation by asserting a patent infringement claim (excluding declatory judgment actions) against Initial Developer, Original Developer or a Contributor (the Initial Developer, Original Developer or Contributor against whom You file such action is referred to as �Participant�) alleging that:

����������� (a)������� such Participant�s Contributor Version directly or indirectly infringes any patent, then any and all rights granted by such Participant to You under Sections 2.1 and/or 2.2 of this License shall, upon 60 days notice from Participant terminate prospectively, unless if within 60 days after receipt of notice You either:� (i) agree in writing to pay Participant a mutually agreeable reasonable royalty for Your past and future use of Modifications made by such Participant, or (ii) withdraw Your litigation claim with respect to the Contributor Version against such Participant.� If within 60 days of notice, a reasonable royalty and payment arrangement are not mutually agreed upon in writing by the parties or the litigation claim is not withdrawn, the rights granted by Participant to You under Sections 2.1 and/or 2.2 automatically terminate at the expiration of the 60 day notice period specified above.

����������� (b)������� any software, hardware, or device, other than such Participant�s Contributor Version, directly or indirectly infringes any patent, then any rights granted to You by such Participant under Sections 2.1(b) and 2.2(b) are revoked effective as of the date You first made, used, sold, distributed, or had made, Modifications made by that Participant.

8.3������ If You assert a patent infringement claim against Participant alleging that such Participant�s Contributor Version directly or indirectly infringes any patent where such claim is resolved (such as by license or settlement) prior to the initiation of patent infringement litigation, then the reasonable value of the licenses granted by such Participant under Sections 2.1 or 2.2 shall be taken into account in determining the amount or value of any payment or license.

8.4������ In the event of termination under Sections 8.1 or 8.2 above,� all end user license agreements (excluding distributors and resellers) which have been validly granted by You or any distributor hereunder prior to termination shall survive termination.

9.�������� LIMITATION OF LIABILITY.

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL YOU, THE INITIAL DEVELOPER, ORIGINAL DEVELOPER, ANY OTHER CONTRIBUTOR, OR ANY DISTRIBUTOR OF COVERED CODE, OR ANY SUPPLIER OF ANY OF SUCH PARTIES, BE LIABLE TO ANY PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.� THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SUCH PARTY�S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.� SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.

10.������ U.S. GOVERNMENT END USERS.

The Covered Code is a �commercial item,� as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of �commercial computer software� and �commercial computer software documentation,� as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire Covered Code with only those rights set forth herein.

11.������ MISCELLANEOUS.

This License represents the complete agreement concerning subject matter hereof.� 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.� This License shall be governed by California law provisions (except to the extent applicable law, if any, provides otherwise), excluding its conflict-of-law provisions.� With respect to disputes in which at least one party is a citizen of, or an entity chartered or registered to do business in the United States of America, any litigation relating to this License shall be subject to the jurisdiction of the Federal Courts of the Northern District of California, with venue lying in Santa Clara County, California, with the losing party responsible for costs, including without limitation, court costs and reasonable attorneys� fees and expenses.� The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.� Any law or regulation which provides that the language of a contract shall be construed against the drafter shall not apply to this License.

12.������ RESPONSIBILITY FOR CLAIMS.

As between Initial Developer, Original Developer and the Contributors, each party is responsible for claims and damages arising, directly or indirectly, out of its utilization of rights under this License and You agree to work with Initial Developer, Original Developer and Contributors to distribute such responsibility on an equitable basis.� Nothing herein is intended or shall be deemed to constitute any admission of liability.

13.������ MULTIPLE-LICENSED CODE.

Initial Developer may designate portions of the Covered Code as Multiple-Licensed.� Multiple-Licensed means that the Initial Developer permits you to utilize portions of the Covered Code under Your choice of the CPAL or the alternative licenses, if any, specified by the Initial Developer in the file described in Exhibit A.

14.������ ADDITIONAL TERM: ATTRIBUTION

����������� (a)������� As a modest attribution to the organizer of the development of the Original Code (�Original Developer�), in the hope that its promotional value may help justify the time, money and effort invested in writing the Original Code, the Original Developer may include in Exhibit B (�Attribution Notice�) a requirement that each time an Executable and Source Code or a Larger Work is launched or run, a prominent display of the Original Developer�s Attribution Notice (as defined below) must occur on the graphic user interface (which may include display on a splash screen), if any.� If the Executable and Source Code does not launch or run a graphic user interface, this obligation shall not apply.� If the Original Code displays such Attribution Notice in a particular form (such as in the form of a splash screen, notice at login, an �about� display, or dedicated attribution area on user interface screens), continued use of such form for that Attribution Notice will meet this requirement for notice.

����������� (b)������� Attribution information may only include a copyright notice, a brief phrase, graphic image and a URL (�Attribution Notice�) and is subject to the Attribution Limits as defined below.� For these purposes, prominent shall have its normal meaning, but shall require that (a) the display be of sufficient duration to give reasonable notice to the user of the identity of the Original Developer and (b) if You include Attribution Notice or similar information for other parties, You must ensure that the Attribution �Notice for the Original Developer shall be no less prominent than such Attribution Notice or similar information for the other party.� For greater certainty, the Original Developer may choose to specify in Exhibit B below that the above attribution requirement only applies to an Executable and Source Code resulting from the Original Code or any Modification, but not a Larger Work.� The intent is to provide for reasonably modest attribution, therefore the Original Developer cannot require that You display, at any time, more than the following information as Attribution Notice:� (a) a copyright notice including the name of the Original Developer; (b) a word or one phrase (not exceeding 10 words); (c) one graphic provided by the Original Developer; and (d) a URL (collectively, the �Attribution Limits�).

����������� (c)������� If Exhibit B does not include any Attribution Notice, then there are no requirements for You to display any Attribution Notice for the Original Developer.

����������� (d)������� You acknowledge that all trademarks, service marks and/or trade names contained within the Attribution Notice distributed with the Covered Code are the exclusive property of their owners and may only be used with the permission of their owners, or under circumstances otherwise permitted by law or as expressly set out in this License.

15.������ ADDITIONAL TERM: NETWORK USE.

The term �External Deployment� means the use, distribution, or communication of the Original Code or Modifications in any way such that the Original Code or Modifications 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 Code or Modifications as a distribution under section 3.1 and make Source Code available under Section 3.2.

�

 

EXHIBIT A.� Common Public Attribution License Version 1.0.

�The contents of this file are subject to the Common Public Attribution License Version 1.0 (the �License�); you may not use this file except in compliance with the License. You may obtain a copy of the License at _____________.� The License is based on the Mozilla Public License Version 1.1 but Sections 14 and 15 have been added to cover use of software over a computer network and provide for limited attribution for the Original Developer. In addition, Exhibit A has been modified to be consistent with Exhibit B.

Software distributed under the License is distributed on an �AS IS� basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the License for the specific language governing rights and limitations under the License.

The Original Code is______________________.

The Original Developer� is not the Initial Developer and is __________. If left blank, the Original Developer is the Initial Developer.

The Initial Developer of the Original Code is ____________. All portions of the code written by ___________ are Copyright (c) _____. All Rights Reserved.

Contributor ______________________.

Alternatively, the contents of this file may be used under the terms of the _____ license (the� [___] License), in which case the provisions of [______] License are applicable� instead of those above.

If you wish to allow use of your version of this file only under the terms of the [____] License and not to allow others to use your version of this file under the CPAL, indicate your decision by deleting� the provisions above and replace� them with the notice and other provisions required by the [___] License.� If you do not delete the provisions above, a recipient may use your version of this file under either the CPAL or the [___] License.�

[NOTE: The text of this Exhibit A may differ slightly from the text of the notices in the Source Code files of the Original Code.� You should use the text of this Exhibit A rather than the text found in the Original Code Source Code for Your Modifications.]

�

 

EXHIBIT B.� Attribution Notice

Attribution Copyright Notice: _______________________

Attribution Phrase (not exceeding 10 words): _______________________

Attribution URL: _______________________

Display of Attribution Notice is [required/not required] in Larger Works which are defined in the CPAL as a work which combines Covered Code or portions thereof with code not governed by the terms of the CPAL.

 

 

[David Woolley (E.L)]

Ross Mayfield wrote:

> Common Public Attribution License Version 1.0 (CPAL)
> 1. “Definitions”
> 1.0.1 “Commercial Use” means distribution or otherwise making the Covered Code available to a third party.

This is a much broader definition of commercial use that normal, in that
there is no mention of money anywhere.  Normally commercial use is
understood either to mean that the software is used in the course of a
business, or, more commonly, that copies of the software (and/or
licenses) are sold in exchange for money or something else of value.

"make available" seems to be a technical term that needs defining, as
well.  Without a definition, it sounds like a library allowing someone
to view the code.  I think the intention is probably to include running
the software with no human intermediary.  It's possible that you also
want to include the use of a human intermediary, either when providing a
specific service of the software, or incidentally, e.g. a corporation
tax package used by a web design company purely for their own tax.

> (c) the licenses granted in Sections 2.2(a) and 2.2(b) are effective on the date Contributor first makes Commercial Use of the Covered Code.

As I read this, you must distribute or otherwise make available
(whatever that means) the code, before you can modify it, or in
countries, like, I believe the UK, that consider use of software
protected, even run it.  Given the strange definition of commercial,
which doesn't require any commercial transaction, even a home user
doesn't get a licence until they distribute or make available.

I suspect, in part, you are confused by proprietary licence
*agreements*, where the key part of the document is the contractual
agreement.  "licence" as a word, means give permission.  Without that
permission, even using is illegal in some places.


--
David Woolley
Emails are not formal business letters, whatever businesses may want.
RFC1855 says there should be an address here, but, in a world of spam,
that is no longer good advice, as archive address hiding may not work.

[Tony Bowden-5]

David Woolley wrote:
>> 1.    “Definitions”
>>     1.0.1    “Commercial Use” means distribution or otherwise making
>> the Covered Code available to a third party.
> This is a much broader definition of commercial use that normal, in that
> there is no mention of money anywhere.  
...
> I suspect, in part, you are confused by proprietary licence
> *agreements*, where the key part of the document is the contractual
> agreement.  "licence" as a word, means give permission.  Without that
> permission, even using is illegal in some places.

Both of the snippets you excerpted are taken verbatim from the Mozilla
Public License, on which the CPAL is based. (Everything up to section 14
should be identical to MPL).

That doesn't mean that your comments don't have merit - just that if
they do, it's much bigger issue than CPAL...

Tony

[Tony Bowden-5]

Mitchell Baker wrote:
>  I think the Commercial Use definition was included, in the MPL  but
> then never actually used.  A drafting oddity.

It's used in the other part that David quoted - s2.2(c):

"the licenses granted in Sections 2.2(a) and 2.2(b) are effective on the
date Contributor first makes Commercial Use of the Covered Code."

Tony

[Matthew Flaschen]

Ross Mayfield wrote:

> and we do not consider ourselves open source,

I think publicly ceasing to describe your product (and company) as open
source, pending your use of an OSI-approved license,  was a real
demonstration of good faith. Thank you.

> We have used the Adaptive Public License, which is virtually the sames as the
> prior attribution provision which was in Exhibit B of the proposed
> Socialtext Public License,  as the basis for the attribution provision
> because it was approved after OSD 10 was adopted.

Russ Nelson said, "Do not use the Adaptive Public License as a
precedent.  It is one of the worst licenses we ever approved."

I still feel that requiring all GUIs to display an arbitrary logo is an
OSD #10 violation.  Some GUIs can not display arbitrary images at all,
and others can only display small ones.  I see no evidence that anyone
considered such OSD #10 issues while APL was under consideration.
Really, it doesn't look like the license was thoughtfully considered at all.

> We have limited the placement requirement for attribution notice to
> "prominent"rather than a specified size or location. We have also
> permitted the use of splash screens.

Does this mean that the attribution can be on /only/ the splash screen?

 The term "prominent" is frequently used in other OSI
> approved licenses such as the GPL

This portion of the GPL is referring to source code notices.  It says,
"You must cause the modified files to carry prominent notices".

The GPL does have a runtime attribution requirement (2.c), but this
doesn't require a graphic image, URL, or arbitrary phrase.  It also
doesn't specify form or require prominence.  The interface of GPL
software (if that clause is taken advantage of) need only have
summarized copyright and warranty information, with options for the user
to view details if they want to.

> and NASA Public License.

I assume you mean NASA Open Source Agreement, which says, "Each
Recipient must ensure that the following copyright notice appears
prominently in the Subject Software".  This requires only a copyright
notice, and it is not even clear that this must be visible during
runtime (rather than only prominent in the source code).

With CPAL, up to 10 words, an arbitrary graphic, an arbitrary URL, and
copyright notice must all be prominently displayed on a main interface.

Finally, these licenses don't define prominent as "of sufficient
duration to give reasonable notice to the user of the identity of the
Original Developer and (b) if You include Attribution Notice or similar
information for other parties, You must ensure that the Attribution
Notice for the Original Developer shall be no less prominent than such
Attribution Notice or similar information for the other party."

This definition is subjective (doesn't "sufficient duration" depend on
vision, age, attention, etc.) and at the least, could eventually result
in a profusion of attribution, slowing the splash screen into a slideshow.
This is an OSD #3 problem, since it constrains practical modification.

> Socialtext believes that the application software has special needs as compared
> to operating systems because of the application software can be used
> anonymously in large distributions

Again, this argument makes no sense.  First, the OSD is not about
satisfying "special needs" of any program or company; it is about
guaranteeing rights to users.  Besides, it is core operating system
software that is used anonymously.  Again, almost no users know who
wrote the ls utility or essential kernel drivers.  But I guarantee every
user of SocialText Enterprise Wiki (and even most users of rebranded
versions) know who wrote that; a wiki is big software, and it's hard to
use "anonymously" or ignore the author, even without attribution.
People do research when they install something as big as a wiki.

Thus, most know MediaWiki is sponsored by the Wikimedia Foundation,
despite the fact that it requires no branding.

> and can be used to provide services through an ASP which does not provide modifications back to the
> community. None of the approved OSI approved licenses include both a
> network use provision and an attribution provision.

I'm kind of surprised Adaptive Public License didn't cram a network
provision in somewhere, but it looks like you're right.

Matt Flaschen

[Matthew Flaschen]

David Woolley wrote:
> "make available" seems to be a technical term that needs defining, as
> well.

I would interpret it as offering for download.  However, Sun originally
 interpreted it as including ASP scenarios.

>>     (c)    the licenses granted in Sections 2.2(a) and 2.2(b) are
>> effective on the date Contributor first makes Commercial Use of the
>> Covered Code.
>
> As I read this, you must distribute or otherwise make available
> (whatever that means) the code, before you can modify it, or in
> countries, like, I believe the UK, that consider use of software
> protected, even run it.

This is technically right (since the MPL was drafted for U.S. law), but
it's too late now (OSI was practically formed to embrace the Mozilla
project) and I don't think it would be feasible to prevent private
modification or use of MPL code, even in the U.K.

  Given the strange definition of commercial,
> which doesn't require any commercial transaction, even a home user
> doesn't get a licence until they distribute or make available.

Well, the license /shouldn't/ (because of OSD #6 and the "selling" word
in OSD #1) discriminate against commercial use.  Despite the strange
phrasing, it actually does not.

Matt Flaschen

[Rick Moen]

Quoting Matthew Flaschen (matthew.flaschen@...):

> Finally, these licenses don't define prominent as "of sufficient
> duration to give reasonable notice to the user of the identity of the
> Original Developer and (b) if You include Attribution Notice or
> similar information for other parties, You must ensure that the
> Attribution Notice for the Original Developer shall be no less
> prominent than such Attribution Notice or similar information for the
> other party."
>
> This definition is subjective (doesn't "sufficient duration" depend on
> vision, age, attention, etc.) and at the least, could eventually
> result in a profusion of attribution, slowing the splash screen into a
> slideshow.  This is an OSD #3 problem, since it constrains practical
> modification.

Non-sequitur conclusion, sir.

Like it or not, criteria requiring reasonable judgements in the applicable
contexts are an inherent part of law and even of (gasp!) software
engineering at times.  If "sufficient duration to give reasonable notice
to the user of the identity of the Original Developer" bothers you,
then you're going to _really_ hate the concept of "derivative work" in
copyright law, for example.

--
Haiku are "IP";                       Permission's hereby
Keen Unixes are, too.  GNU            Granted to deal in this poem
Is better, and free.                  Without restriction.
                           -- Seth David Schoen

[Tony Bowden-5]

Matthew Flaschen wrote:
> Russ Nelson said, "Do not use the Adaptive Public License as a
> precedent.  It is one of the worst licenses we ever approved." ... I
> I see no evidence that anyone considered such OSD #10 issues while
> APL was under consideration. Really, it doesn't look like the license
> was thoughtfully considered at all.

Is there a way for OSI to reverse a decision to approve a license?

Should the APL be reconsidered, more thoughtfully this time?

To have a scenario (and I'm not saying that we have that scenario here -
just raising the more abstract question) where someone could release
under one license and be officially Open Source, but to have an almost
identical (and. perhaps, better) license rejected as not OSD compatible
because the "ok" one is actually bad precedent, would be a little odd.

Tony

[Matthew Flaschen]

Rick Moen wrote:

> Quoting Matthew Flaschen (matthew.flaschen@...):
>
>> Finally, these licenses don't define prominent as "of sufficient
>> duration to give reasonable notice to the user of the identity of the
>> Original Developer and (b) if You include Attribution Notice or
>> similar information for other parties, You must ensure that the
>> Attribution Notice for the Original Developer shall be no less
>> prominent than such Attribution Notice or similar information for the
>> other party."
>>
>> This definition is subjective (doesn't "sufficient duration" depend on
>> vision, age, attention, etc.) and at the least, could eventually
>> result in a profusion of attribution, slowing the splash screen into a
>> slideshow.  This is an OSD #3 problem, since it constrains practical
>> modification.
>
> Non-sequitur conclusion, sir.

Yes, a bit.  I implied rather than stated.  /Any/ definition of
"sufficent duration" could eventually result in an unacceptable delay
due to attribution requirements as multiple CAPL programs are merged.
Shorter duration interpretations will only require more programs before
this happens.  The Larger Work option increases the number of programs
that can plausibly require attribution on a single interface.  This
disincentive to merge is the constraint I  meant to refer to.

> Like it or not, criteria requiring reasonable judgements in the applicable
> contexts are an inherent part of law and even of (gasp!) software
> engineering at times.  If "sufficient duration to give reasonable notice
> to the user of the identity of the Original Developer" bothers you,
> then you're going to _really_ hate the concept of "derivative work" in
> copyright law, for example.


Fair enough.

Matt Flaschen

[Ross Mayfield]

Hi Matt --

Thanks again for your feedback, and I didn't get a chance to thank you
for your more constructive feedback on STPL.  We're getting there...

On 6/26/07, Matthew Flaschen <matthew.flaschen@...> wrote:
> Ross Mayfield wrote:
>
> > and we do not consider ourselves open source,
>
> I think publicly ceasing to describe your product (and company) as open
> source, pending your use of an OSI-approved license,  was a real
> demonstration of good faith. Thank you.

::smile::

>
> > We have used the Adaptive Public License, which is virtually the sames as the
> > prior attribution provision which was in Exhibit B of the proposed
> > Socialtext Public License,  as the basis for the attribution provision
> > because it was approved after OSD 10 was adopted.
>
> Russ Nelson said, "Do not use the Adaptive Public License as a
> precedent.  It is one of the worst licenses we ever approved."
>
> I still feel that requiring all GUIs to display an arbitrary logo is an
> OSD #10 violation.  Some GUIs can not display arbitrary images at all,
> and others can only display small ones.  I see no evidence that anyone
> considered such OSD #10 issues while APL was under consideration.
> Really, it doesn't look like the license was thoughtfully considered at all.

I think that different individuals have different views about the
approved OSI licenses. Russ has his opinion on APL, but others may
have a different opinion. For example, many  commentators have been
very critical about the GPL.  I don't understand your basis for the
statement that the APL was not thoughtfully considered. I understand
that you do not like the license, but let's give credit to the License
Discuss process.

Your view of OSD 10 is simply not correct. The record would not
reflect consideration of attribution notices and OSD 10, because OSD
10 did not address attribution notices. As Larry Rosen, the General
Counsel of the OSI at the time, noted in a January email about OSD 10
on this issue:

"That isn't historically correct.

OSD #10 was written in response to something entirely different. There were
attempts at that time to propose licenses that mandated "click-wrap" and
similar "I accept the license" interfaces in distributed open source
software. Much of the community thought it was unseemly to force a specific
method of license acceptance onto future software distribution modes,
specifically downstream derivative works that would have to retain
technologically obsolete or interactive code for contract formation
purposes. The OSI Board decided to foreclose such license provisions by
adopting OSD #10. Thereafter, an open source license could require a
"reasonable effort under the circumstances to obtain the express assent of
recipients" (see AFL/OSL 3.0 § 9) but nothing more technologically specific."
http://osdir.com/ml/licenses.open-source.general/2007-01/msg00261.html

> > We have limited the placement requirement for attribution notice to
> > "prominent"rather than a specified size or location. We have also
> > permitted the use of splash screens.
>
> Does this mean that the attribution can be on /only/ the splash screen?

Splash screens is one way of fufilling the requirement.

>  The term "prominent" is frequently used in other OSI
> > approved licenses such as the GPL
>
> This portion of the GPL is referring to source code notices.  It says,
> "You must cause the modified files to carry prominent notices".
>
> The GPL does have a runtime attribution requirement (2.c), but this
> doesn't require a graphic image, URL, or arbitrary phrase.  It also
> doesn't specify form or require prominence.  The interface of GPL
> software (if that clause is taken advantage of) need only have
> summarized copyright and warranty information, with options for the user
> to view details if they want to.

The point is that prominent used in a wide variety of OSI licenses
without problem. The use of prominent to refer to notices in the files
is not analytically different from its use on an interface.  You are
not correct about GPLv3: the copyright and warranty notice are
"Appropriate Legal Notices" and are required to be displayed. The
attribution information, which is optional under Section 7(b), is in
addition to the "Appropriate Legal Notices". The attribution
information is only limited to "reasonable" author attribution and
they do not exclude graphics.

> > and NASA Public License.
>
> I assume you mean NASA Open Source Agreement, which says, "Each
> Recipient must ensure that the following copyright notice appears
> prominently in the Subject Software".  This requires only a copyright
> notice, and it is not even clear that this must be visible during
> runtime (rather than only prominent in the source code).
>
> With CPAL, up to 10 words, an arbitrary graphic, an arbitrary URL, and
> copyright notice must all be prominently displayed on a main interface.
>
> Finally, these licenses don't define prominent as "of sufficient
> duration to give reasonable notice to the user of the identity of the
> Original Developer and (b) if You include Attribution Notice or similar
> information for other parties, You must ensure that the Attribution
> Notice for the Original Developer shall be no less prominent than such
> Attribution Notice or similar information for the other party."
>
> This definition is subjective (doesn't "sufficient duration" depend on
> vision, age, attention, etc.) and at the least, could eventually result
> in a profusion of attribution, slowing the splash screen into a slideshow.
> This is an OSD #3 problem, since it constrains practical modification.

The issue that you raised is whether "prominent" was too vague. We
were pointing that "prominent" is widely used in other OSI approved
licenses and has not been a problem. We agree that the notice
requirements are different.  I am puzzled by your concern about
"sufficient duration" since we were trying to clarify the requirement
to meet your concerns. We agree with Rick Moen on this issue. Please
note that the OSI website has a graphic and phrase relating to the
Creative Commons license very similar to our proposal on every page.

> > Socialtext believes that the application software has special needs as compared
> > to operating systems because of the application software can be used
> > anonymously in large distributions
>
> Again, this argument makes no sense.  First, the OSD is not about
> satisfying "special needs" of any program or company; it is about
> guaranteeing rights to users.  Besides, it is core operating system
> software that is used anonymously.  Again, almost no users know who
> wrote the ls utility or essential kernel drivers.  But I guarantee every
> user of SocialText Enterprise Wiki (and even most users of rebranded
> versions) know who wrote that; a wiki is big software, and it's hard to
> use "anonymously" or ignore the author, even without attribution.
> People do research when they install something as big as a wiki.
>
> Thus, most know MediaWiki is sponsored by the Wikimedia Foundation,
> despite the fact that it requires no branding.

Your premise is incorrect. The OSD is not limited to guaranteeing
rights to users, OSI and the OSD take a much broader approach to
making open source software successful and that goal requires working
with different constituencies, including developers, companies and
users. The OSI notes on its website:

"The Open Source Initiative (OSI) is a non-profit corporation formed
to educate about and advocate for the benefits of open source and to
build bridges among different constituencies in the open-source
community.

One of our most important activities is as a standards body,
maintaining the Open Source Definition for the good of the community.
The Open Source Initiative Approved License trademark and program
creates a nexus of trust around which developers, users, corporations
and governments can organize open-source cooperation."

I appreciate your view of the market, but I would like to understand
the factual basis for it. I am running a software company and my
experience is that, without attribution,  "everyone" will not know who
made our software. OSI is effective because its decisions are based on
the realities of the industry. I am working to make Socialtext
available to the community every day and I know that I need this
flexibility. And I am not alone in this view:  attribution has been
adopted by over 12 application companies. We are seeking to provide a
"template" license to meet this need. We respect OSI and its process:
we have worked with License Discuss for over eight months and have
made numerous changes to our proposed license. I hope that OSI will
show similar respect for our experience and needs.

Ross

[Matthew Flaschen]

Ross Mayfield wrote:

>> I see no evidence that anyone considered such OSD #10 issues while APL
>> was under consideration. Really, it doesn't look like the license was
>> thoughtfully considered at all.
>
> I think that different individuals have different views about the
> approved OSI licenses. Russ has his opinion on APL, but others may
> have a different opinion.

That is true, but Russ was around for the deliberations (such as there
were) of APL, and you and I were not.

> For example, many  commentators have been very critical about the GPL.

Nonetheless, it's probably the most used license in the world, while the
APL is extremely unpopular.

> I don't understand your basis for the statement that the APL was not thoughtfully considered.

Reading the archives.  It is most obvious from "Unfortunately, even
after two tries there have been insufficient comments on the Adaptive
Public License.  Maybe the third's the charm?" at
http://www.mail-archive.com/license-discuss@.../msg07431.html
.  It was then discussed on the list for about a week, then it seems to
have been put on the backburner until it was recommended by Russ for
approval in December 2004
(http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:9268:apdpdalipapaedpgofih)
.  Note that both of the comments Russ linked are from April 2004, and
the resubmission was in May 2004.


However, it would be better to hear from someone who was there for the
process.

> Your view of OSD 10 is simply not correct. The record would not
> reflect consideration of attribution notices and OSD 10,

I see no evidence anyone considered #OSD 10 in relation to the APL at all.

> because OSD 10 did not address attribution notices.

OSD #10 says, "No provision of the license may be predicated on any
individual technology or style of interface."  It obviously does not
explicitly mention this kind of attribution, but that hardly means it's
irrelevant.

> As Larry Rosen, the General
> Counsel of the OSI at the time, noted in a January email about OSD 10
> on this issue:
>
> "That isn't historically correct.
>
> OSD #10 was written in response to something entirely different. There were
> attempts at that time to propose licenses that mandated "click-wrap" and
> similar "I accept the license" interfaces in distributed open source
> software.

It was written in response to click-wrap.  However, it was not written
to be specific to click-wrap.  Rather, it determined what the problem
was (click-wrap clauses limited flexibility in technology and
interface), and decided such constraints were generally unacceptable.

>> The GPL does have a runtime attribution requirement (2.c), but this
>> doesn't require a graphic image, URL, or arbitrary phrase.  It also
>> doesn't specify form or require prominence.  The interface of GPL
>> software (if that clause is taken advantage of) need only have
>> summarized copyright and warranty information, with options for the user
>> to view details if they want to.
>
> The point is that prominent used in a wide variety of OSI licenses
> without problem. The use of prominent to refer to notices in the files
> is not analytically different from its use on an interface.  You are
> not correct about GPLv3

I didn't mention GPLv3 mainly because it isn't OSI-approved, though I
hope it will be.  GPLv3 7.b. allows restrictions "requiring preservation
of specified reasonable legal notices or author attributions in that
material or in the Appropriate Legal Notices displayed by works
containing it"
> The attribution information is only limited to "reasonable" author
attribution and they do not exclude graphics.

Reasonable's the key word, isn't it...  It means "unreasonable" author
attribution requirements can be removed (because "All other
non-permissive additional terms are considered "further restrictions"
within the meaning of section 10. If the Program as you received it, or
any part of it, purports to be governed by this License, supplemented by
a term that is a further restriction, you may remove that term.").

Whether a required graphic is reasonable under GPLv3 is debatable, but I
think not given how interface-neutral the "Appropriate Legal Notices"
requirement is.  Several people, including me, have also commented that
7.b may be too broad.  In three days, the final license will come out,
and we will see whether this wording survives.

>> This definition is subjective (doesn't "sufficient duration" depend on
>> vision, age, attention, etc.) and at the least, could eventually result
>> in a profusion of attribution, slowing the splash screen into a
>> slideshow.
>> This is an OSD #3 problem, since it constrains practical modification.
>
> The issue that you raised is whether "prominent" was too vague. We
> were pointing that "prominent" is widely used in other OSI approved
> licenses and has not been a problem. We agree that the notice
> requirements are different.

It's true that "prominent" hasn't been an issue in these other licenses.
 However, I think the term is much more important in yours.  This is
because it refers to runtime attribution, and because CAPL's definition
of prominent would require that multiple attributions have be equal
prominence (which does not have a precedent).

> I am puzzled by your concern about "sufficient duration" since we were
> trying to clarify the requirement to meet your concerns.

It's vague, but Rick is right that this may be necessary.  However, the
real issue is when you have to display a dozen logos equally prominently
for sufficient duration.  This is what I am worried about.

> We agree with Rick Moen on this issue. Please
> note that the OSI website has a graphic and phrase relating to the
> Creative Commons license very similar to our proposal on every page.

I know this is just an analogy, but the website is under only one
license; in fact, it used to be under two, but it was changed to CC for
some reason (probably to simplify).  CAPL could require an arbitrary
number of different attributions if many CAPL programs were merged into
a Larger Work (or even a single program).

> Your premise is incorrect. The OSD is not limited to guaranteeing
> rights to users

I think it is, when you understand that companies and developers
redistributing and modifying software are also users.  It was never
designed to serve the needs of the initial developer (except when they
later become a user of modified versions of their software).

> I appreciate your view of the market, but I would like to understand
> the factual basis for it.

My observation of MediaWiki, Firefox, and other programs.  Firefox
actually demands you remove branding if you make any changes.
Nonetheless, most users of IceWeasel and BurningDog know it's based on
Firefox.

 I am running a software company and my
> experience is that, without attribution,  "everyone" will not know who
> made our software.

I said everyone would know who made SocialText Wiki, and that most
people would know that forks were based of SocialText (but consider
whether forks will be significant if you use a license like "Open
Software License" that requires providing source code for network
communication)

> OSI is effective because its decisions are based on
> the realities of the industry.

Maybe, but the OSD is certainly not based on "the realities of the
industry".  It is based on the Debian Free Software Guidelines; DFSG
dates back to before there was a substantial open source industry, when
it was drafted to specify essential user freedoms.

> I am working to make Socialtext available to the community every day
> and I know that I need this flexibility.

Maybe so, but that doesn't mean it is necessarily open source.

> We respect OSI and its process: we have worked with License Discuss
for over eight months and have
> made numerous changes to our proposed license. I hope that OSI will
> show similar respect for our experience and needs.

I'll finish by making concrete suggestions again.  Removing the "graphic
image" allowance (and perhaps changing "graphic user interface" to "user
interface") should solve the OSD #10 issue.

The OSD #3 issue is more serious, and I don't see how you could
eliminate it entirely.  However, if you remove the option to have
attribution apply to the Larger Work, that should limit the number of
attributions that could apply at one time.

Matt Flaschen

[Dag-Erling Smørgrav-2]

Tony Bowden <tony@...> writes:
> Should the APL be reconsidered, more thoughtfully this time?

It should be taken out back and summarily executed...  It seems to have
been written with only one goal in mind: to make the MPL simple by
comparison.

DES
--
Dag-Erling Smørgrav
Senior Software Developer
Linpro AS - www.linpro.no

[David Woolley (E.L)]

Matthew Flaschen wrote:

> Well, the license /shouldn't/ (because of OSD #6 and the "selling" word
> in OSD #1) discriminate against commercial use.  Despite the strange
> phrasing, it actually does not.

The problem is that the "commercial use" in the above paragraph has a
different meaning (a common sense one) from the one defined in the
licence.  That, at best is confusing.  It would be easy to subvert the
OSD if licensors could chance the definition of "commercial use" used
within the wording of the OSD.

Incidentally, it seems to me that, in their definition of "commercial
use", it discriminates against non-commercial use, and, arguably, it
discriminates against non-commercial use in the sense intended by OSI.
I think that is the case even under US law, as I don't think there is a
right to modify under US law (and one could make modification illegal by
saying that the code contained intellectual property protection
mechanisms).  Doesn't the OSI actually say "field of endeavour", which
would include personal not for profit use.

Also, it explicitly includes "Use" under the uses permitted by the
licence.  That has an implication that, to the extent enforceable by
law, Use is not allowed without a licence.

Even if MPL is grand-fathered in and there is precedent that any implied
field of endeavour restrictions are not real, I don't think one should
be encouraging the inclusion of questinable wording in derived licences.

IANAL etc.


--
David Woolley
Emails are not formal business letters, whatever businesses may want.
RFC1855 says there should be an address here, but, in a world of spam,
that is no longer good advice, as archive address hiding may not work.

[Ben Tilly]

On 6/26/07, Matthew Flaschen <matthew.flaschen@...> wrote:
> Ross Mayfield wrote:
[...]

> Reading the archives.  It is most obvious from "Unfortunately, even
> after two tries there have been insufficient comments on the Adaptive
> Public License.  Maybe the third's the charm?" at
> http://www.mail-archive.com/license-discuss@.../msg07431.html
> .  It was then discussed on the list for about a week, then it seems to
> have been put on the backburner until it was recommended by Russ for
> approval in December 2004
> (http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:9268:apdpdalipapaedpgofih)
> .  Note that both of the comments Russ linked are from April 2004, and
> the resubmission was in May 2004.
>
>
> However, it would be better to hear from someone who was there for the
> process.
>
> > Your view of OSD 10 is simply not correct. The record would not
> > reflect consideration of attribution notices and OSD 10,
>
> I see no evidence anyone considered #OSD 10 in relation to the APL at all.

[...]

It would have been hard for anyone to do so since OSD 10 was created
after the APL was approved.

The APL can be grandfathered in, but any new derivative of the APL
should be careful to satisfy OSD 10.  Certainly it is NOT sufficient
to just say, "Well the APL was approved, we should be as well."

Cheers,
Ben

[Matthew Flaschen]

David Woolley wrote:
> The problem is that the "commercial use" in the above paragraph has a
> different meaning (a common sense one) from the one defined in the
> licence.  That, at best is confusing.  It would be easy to subvert the
> OSD if licensors could chance the definition of "commercial use" used
> within the wording of the OSD.

OSD doesn't actually use the phrase "commercial use".  Even if it did,
licenses couldn't modify the meaning.

> Incidentally, it seems to me that, in their definition of "commercial
> use", it discriminates against non-commercial use, and, arguably, it
> discriminates against non-commercial use in the sense intended by OSI.

How so?  If anything, it discriminates against private modification and
use both commercially (e.g. within in a business but without
distribution) and personally (by a private individual).

> Doesn't the OSI actually say "field of endeavour", which
> would include personal not for profit use.

Yes.  I don't see any right a business gets that a consumer doesn't here.

> Also, it explicitly includes "Use" under the uses permitted by the
> licence.  That has an implication that, to the extent enforceable by
> law, Use is not allowed without a licence.

That is perhaps the implication, but I don't think it's valid, at least
under U.S. law (but IANAL).

> Even if MPL is grand-fathered in and there is precedent that any implied
> field of endeavour restrictions are not real, I don't think one should
> be encouraging the inclusion of questinable wording in deri

I agree that this wording is somewhat poor, but I think MPL does comply
with OSD and making piecemeal modifications to the MPL-based parts of
CAPL would be more confusing than beneficial.

Matt Flaschen

[Matthew Flaschen]

Ben Tilly wrote:
> It would have been hard for anyone to do so since OSD 10 was created
> after the APL was approved.

The Adaptive Public License was approved in 2005, while OSD #10 was
added long before.  I don't know exactly when, but it wasn't 2004 as
stated at http://opensource.org/history (this should be corrected).  It
was already there by December 2002
(http://web.archive.org/web/20021204100529/www.opensource.org/docs/definition.php)
as you pointed out earlier.

Attribution Assurance License, which the attribution clause of APL is
based on, was approved before OSD #10.

Matt Flaschen

[Russ Nelson]

Tony Bowden writes:
 > Matthew Flaschen wrote:
 > > Russ Nelson said, "Do not use the Adaptive Public License as a
 > > precedent.  It is one of the worst licenses we ever approved." ... I
 > > I see no evidence that anyone considered such OSD #10 issues while
 > > APL was under consideration. Really, it doesn't look like the license
 > > was thoughtfully considered at all.
 >
 > Is there a way for OSI to reverse a decision to approve a license?

Not really.  Not without risking the trademark.

 > Should the APL be reconsidered, more thoughtfully this time?
 >
 > To have a scenario (and I'm not saying that we have that scenario here -
 > just raising the more abstract question) where someone could release
 > under one license and be officially Open Source, but to have an almost
 > identical (and. perhaps, better) license rejected as not OSD compatible
 > because the "ok" one is actually bad precedent, would be a little odd.

Not really.  The world isn't a perfect place.  People make mistakes
all the time.  Jesus screwed up.  He MUST have, otherwise He wasn't
human, He was just a god who was slumming.

--
--my blog is at    http://blog.russnelson.com   | In my head, I'm
Crynwr sells support for free software  | PGPok | violating your
521 Pleasant Valley Rd. | [phone]       | software patent.
Potsdam, NY 13676-3213  |     Sheepdog          | So sue me!

[Russ Nelson]

Ross Mayfield writes:
 > I think that different individuals have different views about the
 > approved OSI licenses. Russ has his opinion on APL, but others may
 > have a different opinion. For example, many  commentators have been
 > very critical about the GPL.  I don't understand your basis for the
 > statement that the APL was not thoughtfully considered. I understand
 > that you do not like the license, but let's give credit to the License
 > Discuss process.

No, it's exactly that process to which I refer when I caution people
about the Adaptive Public License.  Look through the archives to see
the number of times the author had to ask and re-ask people to
consider it.  It's WAAAAAAAAAAY too complicated and did not receive
the discussion it needed from License Discuss.

--
--my blog is at    http://blog.russnelson.com   | Jesus screwed up.  He MUST
Crynwr sells support for free software  | PGPok | have, otherwise He wasn't
521 Pleasant Valley Rd. | [phone]       | human, He was just a god
Potsdam, NY 13676-3213  |     Sheepdog          | who was slumming.

[Ross Mayfield]

On 6/26/07, Matthew Flaschen <matthew.flaschen@...> wrote:
...

> OSD #10 says, "No provision of the license may be predicated on any
> individual technology or style of interface."  It obviously does not
> explicitly mention this kind of attribution, but that hardly means it's
> irrelevant.
>
> > As Larry Rosen, the General
> > Counsel of the OSI at the time, noted in a January email about OSD 10
> > on this issue:
> >
> > "That isn't historically correct.
> >
> > OSD #10 was written in response to something entirely different. There were
> > attempts at that time to propose licenses that mandated "click-wrap" and
> > similar "I accept the license" interfaces in distributed open source
> > software.
>
> It was written in response to click-wrap.  However, it was not written
> to be specific to click-wrap.  Rather, it determined what the problem
> was (click-wrap clauses limited flexibility in technology and
> interface), and decided such constraints were generally unacceptable.

This is not really correct: OSD 10 was focused on a particular
problem. You can't arbitrarily apply it to a very different issue.
Clickwraps require technology which may not be available. We have
carefully limited our requirements. For example, you expressed
particular concern about the "graphics" requirement (which is part of
the APL): yet we have limited the requirement to "graphic user
interfaces" which by their nature can accommodate graphics.

...

> I didn't mention GPLv3 mainly because it isn't OSI-approved, though I
> hope it will be.  GPLv3 7.b. allows restrictions "requiring preservation
> of specified reasonable legal notices or author attributions in that
> material or in the Appropriate Legal Notices displayed by works
> containing it"
> > The attribution information is only limited to "reasonable" author
> attribution and they do not exclude graphics.
>
> Reasonable's the key word, isn't it...  It means "unreasonable" author
> attribution requirements can be removed (because "All other
> non-permissive additional terms are considered "further restrictions"
> within the meaning of section 10. If the Program as you received it, or
> any part of it, purports to be governed by this License, supplemented by
> a term that is a further restriction, you may remove that term.").
>
> Whether a required graphic is reasonable under GPLv3 is debatable, but I
> think not given how interface-neutral the "Appropriate Legal Notices"
> requirement is.  Several people, including me, have also commented that
> 7.b may be too broad.  In three days, the final license will come out,
> and we will see whether this wording survives.

This response is inconsistent with your earlier complaints about the
APL. The GPLv3 is probably the most intensively reviewed license ever
developed (certainly in open source) and the drafters
decided that attribution should be included. Many other open source
licenses might have included attribution if they had considered it.
And your comment about the Appropriate Legal Notices being "interface
neutral" is wrong. If the drafters of GPLv3 wanted to make it
interface neutral they could have done so. They did not even mention
the issue.

> >> This definition is subjective (doesn't "sufficient duration" depend on
> >> vision, age, attention, etc.) and at the least, could eventually result
> >> in a profusion of attribution, slowing the splash screen into a
> >> slideshow.
> >> This is an OSD #3 problem, since it constrains practical modification.
> >
> > The issue that you raised is whether "prominent" was too vague. We
> > were pointing that "prominent" is widely used in other OSI approved
> > licenses and has not been a problem. We agree that the notice
> > requirements are different.
>
> It's true that "prominent" hasn't been an issue in these other licenses.
>  However, I think the term is much more important in yours.  This is
> because it refers to runtime attribution, and because CAPL's definition
> of prominent would require that multiple attributions have be equal
> prominence (which does not have a precedent).

Many websites have multiple attribution (my favorite example:
http://www.flickr.com/photos/ross/641736794/ ) and it has not caused a
problem. First, your example is hypothetical: it assumes that multiple
entities will decide to use CPAL and demand attribution. We are
skeptical that this situation will arise. If it does arise, we believe
that the licensors will be practical enough to work it out. Moreover,
the "prominent" requirement is flexible and can accommodate different
screens sizes and different numbers of attributions.

...

> > Your premise is incorrect. The OSD is not limited to guaranteeing
> > rights to users
>
> I think it is, when you understand that companies and developers
> redistributing and modifying software are also users.  It was never
> designed to serve the needs of the initial developer (except when they
> later become a user of modified versions of their software).

This statement is simply incorrect. The purpose of OSI which is
clearly stated on the website: the goal is not expressed in terms of
protecting the rights of different constituencies because everyone is
a user of some type. And OSI has not been operating solely focused on
"users": the focus on decreasing the number of approved licenses and
establishing categories of licenses are directly aimed at developers.

> > I appreciate your view of the market, but I would like to understand
> > the factual basis for it.
>
> My observation of MediaWiki, Firefox, and other programs.  Firefox
> actually demands you remove branding if you make any changes.
> Nonetheless, most users of IceWeasel and BurningDog know it's based on
> Firefox.

I still don't understand your reply. The issue is what the user base
in general will know not your personal knowledge. You have not
provided any factual basis for this assertion.

>  I am running a software company and my
> > experience is that, without attribution,  "everyone" will not know who
> > made our software.
>
> I said everyone would know who made SocialText Wiki, and that most
> people would know that forks were based of SocialText (but consider
> whether forks will be significant if you use a license like "Open
> Software License" that requires providing source code for network
> communication)

I don't understand: why would "everyone" know this fact? We have a
great deal of experience with our product in the marketplace and it is
contrary to this statement.

> > OSI is effective because its decisions are based on
> > the realities of the industry.
>
> Maybe, but the OSD is certainly not based on "the realities of the
> industry".  It is based on the Debian Free Software Guidelines; DFSG
> dates back to before there was a substantial open source industry, when
> it was drafted to specify essential user freedoms.

The OSI has clearly stated its purpose on its site which is not
consistent with your statement.

...

The Larger Work provision is parallel to the provision on notices in
the MPL as well as numerous other licenses, so I don't understand the
basis for your statement. OSD 3 provides:

_The license must allow modifications and derived works, and must
allow them to be distributed under the same terms as the license of
the original software._

CPAL permits modifications and derived works. It permits them to be
distributed under the same terms. You mentioned in your last email
that the "splash screen" could be "slowed" to a slide show which would
be a violation of OSD 3. First,  I don't understand how this effects
OSD 3. Second, you can have more than one attribution on a splash
screen, so I think that your hypothetical is not likely. Finally, the
splash screen is merely one among a number of options for attribution.

Ross Mayfield

[Rick Moen]

Quoting Ross Mayfield (ross.mayfield@...):

[I appreciate your contributions, Ross.  One thing caught my eye:]

> Many websites have multiple attribution (my favorite example:
> http://www.flickr.com/photos/ross/641736794/ ) and it has not caused a
> problem.

I can't resist citing Nicholas Goodman's nightmare scenario:
http://www.nicholasgoodman.com/entry_images/newopensourceapplications.png
(This is not a CPAL-related scenario, though; see below.)

> First, your example is hypothetical: it assumes that multiple
> entities will decide to use CPAL and demand attribution. We are
> skeptical that this situation will arise. If it does arise, we believe
> that the licensors will be practical enough to work it out.

This assumes the licensors can be identified and contacted.  One of the
longtime failure modes of proprietary software that open source
(partially) rectifies is the one where an important piece of software's
owner needs to be contacted for some permission, and cannot be found --
or has died and nobody is quite sure has inherited the rights.  This
problem cropped up frequently with "freeware"/"shareware" offerings, for
example.

(Even with open source, this problem can hit re: licence exceptions, for
example.)

In general, one of the implicit goals of licensing something in open
source is for all necessary permissions to be granted in advance and
conveyed with the code, so that allowed derivatives can be lawfully
created and distributed, and the original codebase can be lawfully
distributed, in perpetuity without needing to re-find and get something
new from the licensor.

But yes, _if_ the licensor can be found and is still cooperative, the
sorcerer's apprentice effect of accumulative logos can be curbed.

> Moreover, the "prominent" requirement is flexible and can accommodate
> different screens sizes and different numbers of attributions.

This is actually a better, and key, point, I think.

--
"Zees American words are too much.      Zen our culture you'll wrench;
With 'le parking' 'le weekend' & such.  Wiz our children we'll be out of touch."
Eef you anglicise French,                -- L'Academie Francaise in a nutshell