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OSI License Approval Item #3 Working Draft
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Please consider this a work in progress. When I'm satisfied that it's good enough for further comment and review, I'll send out an RFC to the Boost Moderators. - Chris
3. Create a legal analysis of the license as it complies with the terms of the Open Source Definition. Each paragraph of the license should be followed by an explanation of how the paragraph interacts with each numbered term of the Open Source Definition. The analysis should come from a licensed practitioner of the law in your country. Email this analysis to license-approval at our domain name, opensource.org. This document will remain confidential to the Open Source Initiative.
2005.01.07 Draft Response (People/ChrisRussell - not a lawyer - this is just preliminary work to save the lawyer(s) some time)
Permission is hereby granted, free of charge, to any person or organization
obtaining a copy of the software and accompanying documentation covered by
this license (the "Software") to use, reproduce, display, distribute,
execute, and transmit the Software, and to prepare derivative works of the
Software, and to permit third-parties to whom the Software is furnished to
do so, all subject to the following:
Paragraph 1 of the Boost Software License specifically addresses the following numbered terms of the Open Source Definition:
- OSI Term 1 - Free Redistribution :
- The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.
- Rationale: By constraining the license to require free redistribution, we eliminate the temptation to throw away many long-term gains in order to make a few short-term sales dollars. If we didn't do this, there would be lots of pressure for cooperators to defect.
- Term addressed explicitly by the language:
"Permission is hereby granted, free of charge, ... to use, reproduce, display, distribute, execute, and transmit..."
- OSI Term 2 - Source Code :
- The program must include source code, and must allow distribution in source code as well as compiled form. Where some form of a product is not distributed with source code, there must be a well-publicized means of obtaining the source code for no more than a reasonable reproduction cost–preferably, downloading via the Internet without charge. The source code must be the preferred form in which a programmer would modify the program. Deliberately obfuscated source code is not allowed. Intermediate forms such as the output of a preprocessor or translator are not allowed.
- Rationale: We require access to un-obfuscated source code because you can't evolve programs without modifying them. Since our purpose is to make evolution easy, we require that modification be made easy.
- Term addressed explicity by the language:
"... to any person or organization obtaining a copy of the software and accompanying documentation covered by this license (the "Software")...
- ... where the "Software" is manifestly the source code due to the nature of the C++ Boost libraries.
Question: Does it make sense to omit a specific mention of the source code? Within the context of Boost it's clear that the Software and the Source are one in the same. However, this might be construed as ambiguous if the Boost Software License were applied to projects other than Boost.
- OSI Term 3 - Derived Works :
- 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.
- Rationale: The mere ability to read source isn't enough to support independent peer review and rapid evolutionary selection. For rapid evolution to happen, people need to be able to experiment with and redistribute modifications.
- Term addressed explicitly, in part, by the language:
"... and to prepare derivative works of the Software ..."
- The explanation of OSI Term 3 states:
- "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."
Question: I don't see how the current wording unambiguously grants the licensee rights to (a) modify the Software, or (b) redistribute modified Software. Assuming it was the intent to grant (a)(b), there's no specific provision in the current wording that constrains the license terms under which modified Software may be redistributed. The current language is clear regarding derivative works - this is dealt with in the 2nd paragraph. Was this intentional? Is there a way to disambiguate this because it seems likely that this will come up for debate on the OSI mailing list.
- OSI Term 4 - Integrity of The Author's Source Code:
- "The license may restrict source-code from being distributed in modified form only if the license allows the distribution of "patch files" with the source code for the purpose of modifying the program at build time. The license must explicitly permit distribution of software built from modified source code. The license may require derived works to carry a different name or version number from the original software."
- Rationale: Encouraging lots of improvement is a good thing, but users have a right to know who is responsible for the software they are using. Authors and maintainers have reciprocal right to know what they're being asked to support and protect their reputations.
Comment: As with Term 3, it seems to me that a strict interpretation of the current language does not conform with OSI Term 4 by virtue of the fact that no specific grants are extended to the licensee vis-a-vis Software modification and redistribution of modified Software. This might have been intentionally left out of the license language for brevity, but it looks to me like Term 4's requirement of explicit grant requires at least some small rework of the current license language.
- Accordingly, an open-source license must guarantee that source be readily available, but may require that it be distributed as pristine base sources plus patches. In this way, "unofficial" changes can be made available but readily distinguished from the base source.
- OSI Term 5 - No Discrimination Against Persons or Groups :
- The license must not discriminate against any person or group of persons.
- Rationale: In order to get the maximum benefit from the process, the maximum diversity of persons and groups should be equally eligible to contribute to open sources. Therefore we forbid any open-source license from locking anybody out of the process.
- Some countries, including the United States, have export restrictions for certain types of software. An OSD-conformant license may warn licensees of applicable restrictions and remind them that they are obliged to obey the law; however, it may not incorporate such restrictions itself.
- Term addressed explicitly by the language:
"... to any person or organization obtaining a copy of the software and accompanying documentation covered by this license..."
- OSI Term 6 - No Discrimination Against Fields of Endeavor :
- The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.
- Rationale: The major intention of this clause is to prohibit license traps that prevent open source from being used commercially. We want commercial users to join our community, not feel excluded from it.
- Term addressed by specific omission of any language that constrains, limits, or defines the end purpose, mode of application, or use of the licensed software pursuant to compliance with the conditions enumerated in the second and third paragraphs of the Boost Software License. Specifically, the language
"... execute ... and to prepare derivative works of the Software..."
- ... does not constrain the field of endeavor.
- OSI Term 7 - Distribution of License :
- The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.
- Rationale: This clause is intended to forbid closing up software by indirect means such as requiring a non-disclosure agreement.
- Term addressed explicitly by the language:
"... to any person or organization obtaining a copy of the software and accompanying documentation
covered by this license ... and to permit third-parties to whom the Software is furnished to do so..."
- OSI Term 8 - License Must Not Be Specific To a Product :
- The rights attached to the program must not depend on the program's being part of a particular software distribution. If the program is extracted from that distribution and used or distributed within the terms of the program's license, all parties to whom the program is redistributed should have the same rights as those that are granted in conjunction with the original software distribution.
- Rationale: This clause forecloses yet another class of license traps.
- OSI Term 9 - License Must Not Restrict Other Software:
- The license must not place restrictions on other software that is distributed along with the licensed software. For example, the license must not insist that all other programs distributed on the same medium must be open-source software.
- Rationale: Distributors of open-source software have the right to make their own choices about their own software.
- OSI Term 10 - Licenst Must Be Technology-Neutral :
- No provision of the license may be predicated on any individual technology or style of interface.
- Rationale: This provision is aimed specifically at licenses which require an explicit gesture of assent in order to establish a contract between licensor and licensee. Provisions mandating so-called "click-wrap" may conflict with important methods of software distribution such as FTP download, CD-ROM anthologies, and web mirroring; such provisions may also hinder code re-use. Conformant licenses must allow for the possibility that (a) redistribution of the software will take place over non-Web channels that do not support click-wrapping of the download, and that (b) the covered code (or re-used portions of covered code) may run in a non-GUI environment that cannot support popup dialogues.
The copyright notices in the Software and this entire statement, including
the above license grant, this restriction and the following disclaimer,
must be included in all copies of the Software, in whole or in part, and
all derivative works of the Software, unless such copies or derivative
works are solely in the form of machine-executable object code generated by
a source language processor.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. IN NO EVENT
SHALL THE COPYRIGHT HOLDERS OR ANYONE DISTRIBUTING THE SOFTWARE BE LIABLE
FOR ANY DAMAGES OR OTHER LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE,
ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER
DEALINGS IN THE SOFTWARE.
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