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The Danger of License Termination Clauses 141

Posted by CmdrTaco from the stuff-to-read dept.
Ray Dassen writes "Bruce Perens has written " Is Your Software In Danger of Termination? ", a letter about the problem of termination clauses such as those in the licenses of Jikes and Secure Mailer. "
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The Danger of License Termination Clauses More

The Danger of License Termination Clauses

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  • I heard that they can enter into contracts, but they can pull out at any time. --- mjt
    -----------
  • From Section 2:

    In addition, mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.

    ---

  • Part of the punizhment??
  • ... most free software licenses are silent on the issue of termination. I'm to lazy to look it up, but IIRC the GPL itself says nothing on the topic. One of the changes I would like to see is a clause stating that the license is "perpetual and non-cancellable". What would happen if someone announced they were terminating the GPL license on their code? I don't believe this has been tested in court.

    I disagree with Bruce about the termination clause in the Jikes license making the software non-free. It says that if an intellectual property claims "appears likely" then blah, blah, blah. It does not say that IBM gets to decide what qualifies as likely. They could claim that, but unless it could be proven true in court, I don't think they will be successful at terminating the license. This is far from letting the license be terminated at IBM's whim.
  • Yes, but that does not address the question of whether or not the copyright holder can unilaterally terminate the license. It only defines bad behavior the licensee can engage in that results in termination.

    Didn't the Pine developers at Wash U. try to retroactively revoke their free license when that project went proprietary? Do you know what happened with that.
  • Live Free or Die (New Hampshire state motto).

    Also says this on their license plates. But what about the guys in the state penitentiary who are actually making those plates...? ;)

  • Please, please, let's not force a split in GPL... using it as a stick to beat Bad People with is a truly horrible idea. It is _important_ that the main idea the GPL conveys is to extend freedom of ideas and communication- withholding it only from those who would attempt to close that particular code.
    It's very clear in this.
    'may' terminate? 'initiate' a patent infringement suit? 'open source' software? Man, that's so unclear it's solid fog.
    What you want is 'If you sue the author of any GPLed software for patent infringement, your license to use any GPLed software is revoked'. _That_ is clear. But I still don't want it because it's been damned hard enough to get people to appreciate the GPL already, without vengeful riders tacked on. Leave it _alone_.
  • Posted by FascDot Killed My Previous Use:

    I don't think you need written ack.

    Here's why (I believe I found this at junkbuster.org): In order to get rid of junk mail, this guy set himself up a "company" (just filed the papers and forms, but didn't hire anyone) called something like "Ad Effectiveness 'R Us". When he'd get junk mail from people he'd send them back a letter saying "This is your free trial evaluation: I've reviewed your ad and found it to be somewhat effective. Further evaluations will be invoiced at $500/item. Receipt of further items by me will be taken as acknoledgement that you want a non-free eval."

    Anyway, you see my point. The junk mailer doesn't have to specifically acknowledge the deal, they just have to have been notified that any future behavior will be interpreted as acknowledgement.

  • Posted by AnnoyingMouseCoward:

    *Damn*, I hate saying that, it's just so incredibly *lame*!

    But yes, I agree totally. The point is

    1). Stick with GPL'd code whenever possible.

    2). Only use code which is licensed under an arrangement other that the GPL if you have an overwhelming reason to do so ( and preferably only if you have a planned emergency exit plan as well ). In short - read the fine print and pay a lawyer to check it. It will save you a lot of grief.

    These days, most programmers doen't see much that's really bad about IBM and feel that they should be given the benifet of the doubt.

    Sorry, but I remember the days ( late 80's ) when IBM meant IncontinentBowelMovement ( and a whole host of other insulting, derogetory terms ).

    Right now, IBM is acting as the great crusader of open source ( BWHAHAHA! ). Don't believe a word of it.

    Just 39 years of extreme cynisism gang.
  • "vmailer isn't targetted at qmail users anyway -- it's targetted at sendmail users. "

    This isn't the way it comes across to me. From much of the Vmailer/Postfix/Secure Mailer documentation I get the impression it was always meant as a direct, targeted, Qmail killer.
    --
  • The copyright holder(s) may terminate your license to use this software in the event that you initiate a patent infringement suite against authors of any Open Source software.
  • I believe the liquor stores are there because NH has no sales tax and attracts customers from the neighboring states. Putting the liquor store on the highway makes it more convienient for the out-of-staters, and also would attract through travelers.

    Also, I believe NH was the first state to have a state lottery.
  • The second clause causes output from the program which is somehow derived from the program to fall under the GPL. This solves the problem of someone, for instance, patching a GPL program to output its own source or binary code and then falling back upon the "output is not covered" point in the GPL to allow them to distribute under non-free terms.

    What this does protect is output created by the program's user with the aid of the program, as opposed to derived from the program. If I make an image in Gimp, the image does not fall under the GPL; if I compile a program with gcc, that program is not necessarily GPLed.

    The conflict you see is that at one point the GPL says that usage is not restricted, then goes on to describe a case in which usage (or the output thereof) is covered by the license.

    I'd hold that this case - the case in which someone uses a GPL program to output information derived from the program itself, rather than created or processed from non-GPL sources, such as system status or user input - falls under "copying" much more so than "usage." The user is using the program to copy itself, or a part of itself, and so the new copy falls under the GPL. It's the same thing, essentially, as if I use GNU cp to copy a GPL-covered source file - the new file still falls under the GPL, despite being the output of a GPLed program.

    The issue now is whether 'falling outside the scope' of the license is the same as 'not restricted.' I'd have to say that it is. All software licenses are restrictive in nature, designed to take rights away from the do-anything-you-feel-like body of rights enjoyed by users of truly public domain software. The GPL is no exception; it takes away your freedom to take away the freedom of others. It restricts your right to proprietarize the software. The whole scope of a software license is restrictive, not liberating. The point of copyleft is to take the restrictive nature of a software license and create something that will be forever liberated.

    So, if something is not restricted by a license, then it follows that that act falls outside the scope of the license. If the license says "not restricted" to some act, then it is in fact placing that act outside its restrictive scope.

    I see no conflicts here, and I'd be interested to learn the reasoning behind a policy that would ban installations of GNU GPL-covered software.

  • Yes, you do have the right to create such output. Reread my previous comments about software licenses being restrictive only. Since there's no negative "You cannot use the program in this manner," (except that manner which creates a copy of the program, again, see my previous post) you have the right to use the program in whatever manner the law would allow for a program you personally own. You don't need an affirmative "you have the right to use this program in any manner allowed by law," the license inherently grants you this right by not taking it away.
  • With the turnover rate of software being what it is, there isn't much danger of turnover clauses kicking users out of college and home. If licenses don't already go ignored, people usually shelve the software after a couple years anyway and move on to better things like work, marriage, kids, overtime. At least my software anyway.
  • Opening a package or clicking buttons does not constitute a contract and no one has *ever* been prosecuted for violating these types of licenses. All the "software raids" you hear about every now and then about company X having Y thousand copies of unlicensed software are busted because they stole (no new laws here) or because they violated NDAs (bearing real signatures on real paper) not because they violated meaningless shrink wrap agreements.
  • You're SOOO right. It's a CYA maneouvre (sp?)
    IBM has been so amazingly behind open source recently that it blows me away. They most definitely possess those who can hack(TM).
    They have also been excellent net-heads, embracing apache, and linux as well.
    They function in an insane world where any fool with a lawyer can create a load of grief for them. A nice boilerplate defensive license makes perfect sense.

  • Have you ever been within smelling distance of a lawsuit? If not, read, for example, coverage of the Microsoft suit the DoJ's prosecuting.

    I have a number of friends who are lawyers (and actually have working consciences!), and get the inside scoop from them about the operation of the law. As P. J. Plauger observed in an Embedded Systems Programming column, anytime you go to court, you've lost, regardless of the merits of your case.

    If we accept licenses that allow courts to decide what the license language means (as a primary function, not just as secondary to deciding whether the license has been violated), we're signing our own death warrant. Anyone with a few bucks to rub together can bring all development to a complete halt at any time for any project using such a license.

  • I haven't seen any evidence that qmail is losing market share to vmailer. vmailer isn't targetted at qmail users anyway -- it's targetted at sendmail users.
    -russ
  • Yup, you are right [pobox.com].
  • Shrinkwraps are only legal in the 7th circuit. If it gets to the supreme court, it'll get overturned.
    -russ
  • Then quit. A little spine can only do you good.

  • with IBM. this is a behomoth that has been known to cut off it's own arm just to piss off it's one good leg.

    the ibm PC company refused to even preload OS/2 because it was in bed with MS and OS/2 threatened that relationship. the infighting involved between the software and hardware sides of ibm in past years is stupifying.

    look forward 5 years. assuming MS gets off easy again with DoJ (not a leap is it?) and they get their iron fist around the pc world even further.... do you think for a second that some IBM suit won't trade away the yikes and/or any other wishy-washy licensing scheme for a big chunk o' microsoft pie?

    i'm not saying ibm is gonna betray (honestly or dishonestly) the open source community due to such licenses this thread concerns, but don't rule out anything.

    if there is a loophole, expect it will be exploited. and this loophole is pretty damn large.
  • Dont be fooled by other "Open-Sores" licneses that claim to be free. Use only 100% genuine GNU-GPL licensed software on your systems.

    Freedom is worth far more than all of Bill Gate's M$ stock.

    Live Free or Die (New Hampshire state motto).
  • The hardworking inmates at New Hamshire Correctional Industries are ready to meet all your license plate and signage requirements. They do far more than license plates these days. www.state.nh.us/nhci/index.html
  • I agree with Bruce's general point, but developers can easily attach copyrights/license terms to THEIR additions to such products and ensure that the likes of an IBM would be in the position of having to stop THEIR distribution becuse of
    the GPL ...
  • The current UCC proposal makes shrinkwrap and clickwrap agreements binding. i think the Communications of the ACM had a big story about it a few months back.

    Basically the current UCC proposal looks really bad for consumers, but very good for vendors. (big surprise there, I know).
  • You're entitled to your opinion. I'm entitled to have opinions that evolve over time. It's called growing. Who are you, anyway? Just curious.

    Bruce

  • Requiring a court decision (or at least a settlement recorded in court, so that people have a way to bail out of a lawsuit) is better than what is in the license now, but it should also terminate only those pieces of the software than infringe, not the entire license on the whole program, so that the free software community can write its way around the problem.

    Thanks

    Bruce

  • The matter of whether a claim is likely or not need not come into the issue, because by accepting the license you have agreed to comply with its termination if IBM leaves a notice on their web site.

    But, even if we don't argue that point, contesting the likelyhood of a claim is an extremely weak defense. It's so easy for anyone to enter a claim in court that you'd never succeed in preserving your license from termination that way. Suppose, for example, that someone served process on IBM. That's cheap to do, and it would be incontestable evidence of a claim.

    Thanks

    Bruce

  • Actually, I just ended a lawsuit. The other party settled, but it cost me $20,000 to get there. I got it back. But you have a point. So, what do you and your lawyer friends suggest?

    Thanks

    Bruce

  • Rob didn't post it. His automatic software did. He didn't tear open any license.
  • We should encourage Dan B. to put a better license on Qmail, especially now that it's losing market share to Secure Mailer. But Dan is very stubborn, and he's resisted this plea before.
  • Use this link [ibm.com], and click the last link (non-technical comments).

    Thanks

    Bruce

  • It's definitely the case for commercial software. A major point of Free Software / Open Source is that the software lives longer.
  • Let's not rule IBM's participation out entirely. We just need them to fix their license a bit. Sure, lots of people like pure GPL/LGPL stuff better, myself included, but even Richard Stallman acknowledges that some of these GPL-incompatible licenses are still Free Software.

    I would not have written this article if I thought the only worthwhile strategy was for us to turn our back on IBM and other large companies. It's not time to burn our bridges.

    Thanks

    Bruce

  • Your argument is flawed. Regular re-design is indeed beneficial, but the fact that the old software continues to work and be maintained is no impediment to regular re-design! Were that the case, Sendmail would have blocked the development of smail, exim, qmail, and postfix.

    The fact that Sendmail continues to be maintained only assures us that its competition will be better, because we won't accept less from a new product than we can already from Sendmail!

    Surely, both KDE and GNOME are both better for their competition, and we are better off because we have a choice between two products.

    Thanks

    Bruce

  • Imagine if we could convince ISC to put that provision on BIND. Who doesn't use it?

    I think Stallman was once considering something like this. I don't know if he still is.

    Thanks

    Bruce

  • Don't worry. First, I'd never suggest doing this without having much better language. And again, I don't know how Stallman feels about the issue today and I suspect he might have come to the same conclusions as you. Nothing like that sort of change would happen without a lot of discussion.

    How do you feel about that provision as it exists today in the NPL draft?

    Thanks

    Bruce

  • Perhaps what the poster really demonstrated was that Rob should include in his terms and conditions a statement to the effect that all submitted material is placed in the public domain by the poster, and that consequently the poster loses any rights which he may have held over the material prior to the act of posting.

    Without that, Rob could have a nightmare on his hands.
  • You can subscribe to the Jikes license mailing list:
    echo subscribe \
    | mail jikes-license-subscribe@watson.ibm.com

    I read the entries from time to time, and forward them as appropriate.

    By the way, we are aware of of the concerns re the termination clause.

    dave
    http://www.ibm.com/research/jikes
  • Aargh...got address wrong: try
    echo subscribe | \
    jikes-license-request@watson.ibm.com

    dave
  • You can e-mail me directly, or submit a note to the jikes-license list. The latter is preferred, as this is in full public view, and is archived, so you can retrieve what others have said about this and other topics.

    Subscribe by
    echo subscribe \
    | mail jikes-license-request@watson.ibm.com

    dave
  • Maybe the company is trying to protect themselves and their investments?
  • Yes, you own the comment and may be held accountable for any libelous statements that you make. This legal disclaimer is simply to protect /. The recent case involving Yahoo and Raytheon is of interest in this regard.

    As for your penalty, one would need the written acknowledgment of Rob for it to be binding. OTOH, you can copyright your post to this public forum, thereby placing limits on any further repostings on another site.

  • IBM has done nothing more than give a fair warning here. Admittedly their language is vague, but its not IBM but the courts who would get to decide what constituted 'reasonably available' or a real change of an IP suit against them. In terms of the products concerned the chances of such a thing happening are almost nil.

    Consider what would happen if a GPL'd product were found to violate some patent - the courts would insist of the deletion of all copies (or the payment of royalties) there as well.

    There is a legal world beyond what it says in the license. Just because the GPL doesn't say anything about what would happen in the case of patent infringement doesn't mean it won't

  • Section 4 of the GPL says that your license is terminated if you violate it, but the termination affects only the violator:

    4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance.

  • The GPL addresses this point. You can refuse to accept the GPL. If you do, then you get the default under copyright law: no right to modify, no right to redistribute. See section 5 of the GPL.

    You seem to think that the default, if you refuse to accept the license, is public domain. The law does not work that way. By default, if you have a legal copy of a copyrighted program, you can run it and make one backup copy, but you can't give it to anyone else and you can't make derivative works based on it (e.g. copy a piece into a different program).

  • NH is the only state that DOES NOT have a seatbelt law, EXCEPT for children under 12. The sign probably read something like "Children under 12 must have seatbelts fastened" followed by "Common sense for all". I live a mile from the NH border and have seen such signs
  • I assume you are referring to the hard stuff.
    NH allows beer and wine to be sold in grocery stores, which is a rare site in the Northeast.
  • For a corporate giant like IBM, even the existing license is incredibly risky and innovative. Yeah, a bunch of us have things that we don't like about the license, but if people start flaming them, they'll retreat into their shell, pull the products, and write off the open-source "experiment" as a failure. I don't want that to happen.

    If you don't like the license, and (this is important) you're in a job where this license affects which products you use, join the IBM license discussion list, and suggest changes that would placate you while allowing the IBM suits to cover their backsides.

    IBM isn't offering things like Jikes because they've found Stallman's religion. They're doing it because, hopefully, they'll impress the programmers and sysadmins out there, who'll decide that maybe they should take a closer look at IBM's commercial offerings. This is how reality works. Most people need real jobs where they make money. Most companies need to sell stuff like hardware and software. We can take advantage of this. If they think that giving out code makes them look good, and maybe, in some nebulous way, increases sales, we can get some great free code. If we can convince them that with some teeny little license changes, they'd look much cooler (and maybe that'd lead to more sales), they're more likely to do it.

    Don't spook the suits. They're not as thick-skinned as the average /. geek.
  • Words like 'likely,' 'substantially,' 'reasonable,' 'reasonably likely,' 'may,' 'might,' 'could,' 'probable...' the list goes on...

    This type of language in a license renders it vague from the parties' points of view.

    This means that to end the license would require courts and a jury to decide whether the relevant facts of the case fit into the box that the language in question seeks to make.

    'Revocation will occur when event X occurs.' This is an example of concrete legalese.

    'Revocation will occur if event X becomes reasonably likely.' This is vague legalese designed to give the licensor discretion (read leeway) to decide when to sue.

    To avoid vague legalese, be sure that the license speaks in terms of 'will,' 'becomes definite,' 'is' etc. Instead of likelihoods, it should speak in terms of definite contingencies.

    If one is careful of this, then the licensor and licensee can be sure when a term is violated or not.

    Here is a simple test that one should apply to any term or provision in a license: "How many different ways can I violate this provision?" The closer the number gets to 1, the better.

    Cheers!

  • Minority/Infancy is a defense to contract.

    If a child under 18 enters into contract, and is later sued for breach of that contract, the minor child can assert minority as an absolute defense.

    Alternatively, a minor child may disaffirm a contract at any time. This is usually performed by a writing on the minor's behalf, or in court with a motion to set aside the transaction.

  • That is the case on point.

    Shrink wraps and click-buttons are now enforceable. BE VERY AFRAID!

  • Regardless of what you may think of Bruce Perens, he has hit the nail on the head. Most of us will concede that IBM means well, but nonetheless they have written a license that has unlimited downside risk for the end-user.

    They have written a license with a clause that is not acceptable in free software---one which provides a strong disincentive to the end-user to get involved. No one says IBM has to play free software, but if they do, they should get some idea of the rules.

    Rob Levin, Head of Operations
    Open Projects Net

    "Open source, open technology, open information"


  • smithdog wrote:
    Live Free or Die (New Hampshire state motto).
    Allegedly found on a state sign welcoming motorists to New Hampshire:
    Fasten your seatbelts. It's the law.

    Welcome to New Hampshire. Live free or die.

  • You post anonymously, you can't collect.

    Sucks to be you.

    Now, people with logins...

    :-)

  • Well, two can play the quoting game:

    Activities other than copying, distribution and modification are not
    covered by this License; they are outside its scope. The act of
    running the Program is not restricted, and the output from the Program
    is covered only if its contents constitute a work based on the
    Program (independent of having been made by running the Program).
    Whether that is true depends on what the Program does.


    It is plain enough for me: the act of running the program is not restricted. The additional restriction to output produced by the program applies only to output that is a derivative if the program. Makes sense: you wouldn't want to make sensitive corporate information that is the output of some random GPLed program freely redistributable. OTOH if that output is work based upon said program that should be redistributable as per the GPL (the GPL is recursive!).
  • Hi all..

    surprisingly, i actually agree with their assessment of this case (even though the point was well made in the first 3 paragraphs but numerous pages followed :). it really was quite well argued, and makes good sense to a "reasonable" person that considers both sides.

    what's interesting to me is that the primary assertion is that the consumer has the opportunity to review the "shrink-wrap" license, and subsequently, if they refuse to enter the agreement, they have the opportunity to return the product, etc. if they choose to use the product after review, they've consented.

    now, since that was a significant component of their argument, most likely being one of the most important factors in convincing the judge, how does this impact microsoft's recent slithering to get the EULA changed to avoid this "out-clause"?

    this is a very interesting point to me...

    would it continue to be defensible in federal court with this arguably critical concept absent?

    your thoughts?
    Peter
  • Section 0 is ambiguous, very ambigous:

    The second part of section 0 first says:

    Activities other than copying, distribution and modification are not covered by this License; they are outside its scope.

    Which might make what follows completely useless:

    The act of running the Program is not restricted, and the output from the Program is covered only if its contents constitute a work based on the Program (independent of having been made by running the Program). Whether that is true depends on what the Program does.

    As it previously said those activities aren't coverd by the license... Or, in other words - you're free to copy it but have no right to use it... IANAL but I don't consider their fears completely without cause...

    I certainly don't claim that a court of law would judge it this or that way, I simply don't know :-(

    Erik



    Has it ever occurred to you that God might be a committee?
  • The argument is:

    "Where does it say that I may use a GPLed program"

    Nowhere in the GPL v2 does it say:

    "You may use the program"

    It only says:

    Activities other than copying, distribution and modification are not covered by this License;

    So it depends on the local law wether or no you may actually use the program... Yes you have the rights to the 'output', but do you actually have the right to create such output? I certainly don't know. If I'd actually own a copy I'd be certain that I could use it freely, but it doesn't say that I own any copies on my disk -- It only deals in how I may modify and/or redistribute it! The normal case is that you don't own the software, you only license it. And the GPL doesn't say anything about owning/licensing the copy.. Again, I don't claim that it would hold in any sane court -- just that the GPL is more ambigous that it needs to be.

    Erik

    Has it ever occurred to you that God might be a committee?
  • Where does it say that licenses are restrictive only? The ordinary case (for copyright licenses) is that silence means "no rights"... What law says "you may use a copy (that you don't own) if it resides in your computer"? And is there such a law in all countries?

    IANAL, just uncertain...

    Erik



    Has it ever occurred to you that God might be a committee?
  • Claim that you bought a copy that is, if you actually owned the software you'd be allowed to do pretty much everything except copy it, i.e. dissasemble etc... If they did it they would loose much power over their customers.

    Erik



    Has it ever occurred to you that God might be a committee?
  • I would agree completely if it was unambigously stated that I actually own the copies in my computer, but the GPL says nothing about this - only how I may and may not create copies, derived works etc. etc. All other software licenses I've read (not that many :-) say that you don't own the copy and then gives you the right to use it. The GPL doesn't say anything about the ownership of copies (copy != copyright)... Are you allowed to use something (without the permission of the owner) that you don't own if it happens to be on your property??

    Again, IANAL

    Re: some other post by some AC

    It's good that the GPL is ambigous!?

    Erik


    Has it ever occurred to you that God might be a committee?
  • Anybody have ibm email address we can express our dissatisfaction with this kind of license to?
  • Uh, I would think twice before touting prolonged software life
    as a positive thing. Regular redesign from ground up is like a
    prostate exam: it's a pain but it's good for you.
  • Sendmail??? Doesn't need redesign from ground up? Sendmail???
  • The way I understood the original post was that by the time IBM
    (or ingeneral copyright holder) decides to revoke its license, the
    software will be obsolete anyway. And even if it weren't yet obsolete,
    a OSS rewrite of revoked code would still be a good refresher for the code.
    I further think that the threat of license revocation will force programmers
    not to depend too deeply on that package in their software, thus
    encouraging modular design. So in the grand scheme of things (i.e. ignoring
    how much effort goes into programming), such licenses may not be too bad.

  • That depends on whether or not the software needs a redesign. One of the advantages of open-source is that, given the number of people working on a piece of software, design decisions that make it hard to maintain and/or extend get found and eliminated early in it's life. The result is software that doesn't suffer nearly as badly from rot as changes are made. The canonical examples would be BIND or the nigh-immortal sendmail

  • What would you change about sendmail's design? Yes the config file syntax is a bear. That's not a result of the program's design. Having had to hack local mods into sendmail's code before, I find it relatively easy to do so. To me, that's the ultimate criteria for a good design: someone who wasn't part of the design team finds it easy to modify the program.

  • Sounds like the fine folks at Corcraft, the New York prison industries. (I wonder if they develop open-source software for pennies on the dollar compared to private sector.)

    See http://www.corcraft.gov/ for more.
  • Bruce asked for suggestions on how honest people can cooperate on open-source development without nasty surprizes; and you've got to clutter up the discussion with a pathetic attempt to cheat owners of proprietary software. sigh. it is not like *alternatives*to*proprietary*software do not exist. now stop cluttering up this discussion.
  • this is what a lot of programmers said in the Sixties and Seventies: "it is okay to use 2-digit dates because by the time year 2000 rolls around, our company will have junk this silly program long since.
  • Wouldn't it help - in a more general way - to
    convince polititians that free software is
    in public interest.
    Imagine some of the United Nations institutions
    officialy acknowledging
    "Free Software is something that should be
    treated in a way (by state laws) that its special
    benefits for the society are considered".
    So copyright laws should state that someone
    violating copyrights with free software
    cannot be made to pay big bucks - even
    if he is ibm. He clearly should be stopped
    infringing this copyright, but thats another
    matter.
    There should be other ways to protect programmers
    of free software from being crunched in court by
    big companies like charities who help in paying
    lawyer costs (does something like that exist?).
    Companies like ibm etc. should be aware that
    donating for such things could do more for linux
    and gnu and free programming than investing in
    linux-companies (which is good too).
    I fear the day when some company goes to court
    and gets the judge to rule "ok, i don't know
    if they are right, but we stop distribution of
    the linux kernel until we get a final decision
    (which will be in two years)".
    OTOH, who will have the money to prosecute
    violation of the GPL, BSDL, LGPL?



  • Freedom's just another word for nothing left Tolouse.
  • Actually, Rob could start charging for storage time.

    Wouldn't THAT be funny.

    Zagmar
  • I agree. The agreement has very little to do with the general "Gnu/Gpl" concept at all. How can this be accepted into any free software scene is beyond me. Atleast, why anyone would bother on HELPING IBM develop on their source, is just unthinkable. And then, isn't it all kinda redundant to release it as "open source" ??
  • i agree completely, to accept a faulty liscense because it is well intentioned is insanity. stick to the gpl (though i do worry about the version n or later once rms dies (do idealists die?)).
  • " If a license is indeed restrictive only, then if I write something, copyright it, and then
    don't license it you seem to be saying that anyone can do anything they want with it"

    Yes, anything EXCEPT copying.
  • "Where does it say that licenses are restrictive only? "

    In the U.S. it is generally legal to do anything that isn't specifically illegal. It is specifically illegal to copy a copyrighted work. Anything you write is automatically copyrighted. Therefore it's legal to do anything except copy.
  • From personal (painful) experience, minors can enter into contract - however, the parents or legal guardian is responsible for the terms of the contract being settled - in other words, your son can save up his pennies for two years, go buy Win98, put it on your system, loan it to the rest of his 5th grade class, and sell it at the local Pawn - and you get to be the one paying the SPA's fines.

    OTOH, if he turns out to make a great actor, you get to manage where his money goes...

    -Yert
  • This shows the stupidity of software patents. After all, if you can't patent the software, then nobody can claim that they had the idea for X first... You can still copyright your program. you just can't patent the algorithm behind it.

    Of course us You-Rope-Ians currently have the right idea. :-)
  • The point of an indemnification is that it prevents someone else from sueing you over whatever is being indemnified. In this particular case, what IBM is promising is to prevent that from occuring but since this is free software, they will not go beyond that.

    If a person(s) sue IBM sucessfully over an intellectual property issue then the normal remedy in the case of a sucessful suit is the revocation of all existing software licenses unless the infringer agrees to make sutiable payments. There is no necessitity that the winner of such a suit agrees to license the property so that exisiting licenses can be maintained. Moreover, if such a suit were sucessful, without an indemnity from IBM every user of the property would be liable for damages and be prohibited from using the software. What IBM's license does it to prevent such secondary suits from occuring, e.g. you cannot be sued for a infringement under IBM's license.


    This is actually better than most open source software. One more thing, in a contract the word "reasonable" has special meaning - in this case it means that unless the plaintiff has enough evidence to get a injunction issued IBM will not terminate the license.
  • I think IBM means well here. What they need
    is an alternate way to protect themselves
    against patent infringement violations and
    the resulting liability.

    Perhaps something along the lines of:

    "if a party other than IBM is found by a
    (what jurisdiction?) court to hold a patent
    which applies to this software, then that
    party may require IBM to pay fees for use
    thereof. In this case, IBM may elect to
    terminate this license."

    This reduces the problem by:

    1) Eliminating IBM itself from being
    the hypothetical antagonist.
    2) Requiring a court to demonstrate that
    IBM is in violation before proceeding.

    I think that realistically (1) is unlikely
    since IBM is sincerely contributing to the open
    source community.

    (2) Allows IBM to get out of a tough situation
    where they inadvertently violated someone else's
    patent. I don't think (2) is likely to happen.

    Any thoughts?

    -- Idan


  • Agreed. Terminating just the offending code
    makes more sense. The question of jurisdiction still remains, however. Any thoughts? Perhaps IBM's home in New Jersey?

    -- Idan
  • See ProCD v. Zeidenberg [emory.edu]. The 7th circuit appeals court upholds the validity both shrinkwrap and point-and-click licenses.
  • I'm by no means any expert in US law or the UCC (I live in Canada), but I would think that not honouring the "out-clause" could render the licence invalid... It would be an interesting test case...

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