[Linux-aus] Re: Squiz.net Open Source License - is it free?
Andrew Donnellan
ajdlinux at gmail.com
Sun Feb 5 13:01:03 UTC 2006
Another analysis with more explanation.
I have asked FSF and their response was clearly non-free.
andrew
---------- Forwarded message ----------
From: Francesco Poli <frx at firenze.linux.it>
Date: Feb 5, 2006 1:19 AM
Subject: Re: Squiz.net Open Source License - is it free?
To: debian-legal at lists.debian.org
On Fri, 3 Feb 2006 11:47:39 +1100 Andrew Donnellan wrote:
> 1. Right of use
> 1.1 Subject to Clause 2 and the legal rights of any third party, You
> are granted a non-exclusive right to install, view, copy, modify,
> alter and add to the Software (in source or object code form) in any
> way. However:
>
> (a) You must not introduce any virus, worm, trojan horse or malicious
> code into the Software;
This is clearly non-free, as it restricts modifications (fails DFSG#3).
It's also definitely vague, as the terms "virus", "worm", "trojan horse"
and "malicious code" are not defined in the license or in any law (that
I know of).
I could introduce something and distribute the modified version in good
faith, then upstream decides to claim that what I introduced is
"malicious code": how can I prove it's not?
[...]
> 1.3
[...]
> This Licence does not apply to
> any computer program other than the Software, even if that program is
> distributed along with the Software.
This may be plainly false: it seems the license is claiming that no
program but one is licensed under the present terms and conditions.
I think the license drafter intended to mean that "distributing other
software along with the Software does not automatically bring that other
software under the scope of this license", but this is not what the
license says...
[...]
> 2.4 If You alter, modify or add to the Software, You are expected to
> assign all of Your intellectual property rights (including copyright
> and patent rights) in any Modifications to Squiz.Net including
> copyright in any compilation comprised of any part of the original
> source code of the Software and Your Modifications to the Software. If
> you agree to assign the copyright of Your Modifications, Squiz will
> grant You and every other user of the Software a perpetual,
> world-wide, royalty-free, non-revokable, non-exclusive licence to use
> the Modifications.
If "you are expected" means that it is requested, but not required,
that's fine.
If it instead means that this a condition on getting the permission to
modify and distribute modifications, then it's clearly non-free
(unacceptable restriction on modifications, fails DFSG#3).
I'm not sure which is the case...
>
> 2.5 You agree to waive all moral rights that You may have in any
> Modifications You make. You consent to the use of Your Modifications
> by Squiz.Net or any other user under a licence on the terms of this or
> another substantially similar licence, even if you might regard that
> use as derogatory treatment under moral rights laws.
AFAIK, this is unenforceable, because moral rights are inalienable in
jurisdictions where they are present.
At least in Italy, AFAICT, authors are granted some moral rights and
they cannot waive or transfer them, even if they want to.
[...]
> 2.7 If the assignment in clause 2.4 is ineffective or does not occur
> for any reason, You grant to Squiz.Net a royalty free, perpetual,
> worldwide licence to use all intellectual property rights You have in
> all Modifications to the Software, including the right to grant
> licences to others on the terms of this or another substantially
> similar Licence.
This may be regarded as a fee for the permission to modify.
It may fail DFSG#3, since I'm not allowed to distribute modifications to
Squiz.Net "under the same terms as the license of the original
software": I must grant to them more permissions than the ones they
granted me.
Note however that this looks more or less similar to QPL's clause 3b,
which I consider non-free, but, IIRC, didn't get clear consensus on
debian-legal when we discussed it on July and August 2004 (see the long
threads about ocaml, QPL and the DFSG).
Actually, AFAIR, ocaml is currently in main under an amended QPL that
solves the other issues (QPL's clause 3a, 6c and choice of venue), but
with clause 3b unaltered.
Unfortunately packages.debian.org is down at the moment, so I cannot
easily check (without installing ocaml)...
>
> 2.8 You must Notify Squiz.Net within 30 days of making any
> Modifications even if You do not intend to distribute those
> Modifications. Notify is defined in Clause 4.2 below. If Your
> Modifications are incomplete, You must still Notify Squiz of the
> status of your progress not less frequently than once every 30 days.
> If You do not Notify Squiz.Net of Modifications You have made
> (complete or not) within 30 days, Squiz.Net may deem that you have
> opted to limit your obligations in accordance with Clause 3 and as
> such Squiz.Net may reasonably charge You the consideration indicated
> in Clause 3.
W h a t ? ! ?
Have I to notify Squiz.Net even each time I go to the toilet?
This is clearly non-free, as it's an unacceptable restriction on
modifications (DFSG#3), fails the Dissident Test and the Desert Island
Test.
>
> 2.9 Squiz may choose to publish any notice you provide in accordance
> with Clause 2.8 on its website or elsewhere for the benefit of other
> users of the Software. You hereby grant Squiz.Net the right to publish
> Your notice where We see fit. You will not charge Squiz.Net any fee
> for this right.
This makes clause 2.8 even worse than it was, if possible...
>
> 2.10 You are obliged to promptly provide a copy of any Modifications
> You make to any other party that requests a copy of Your Modifications
> and in a format reasonably requested by them. You may not charge any
> fee for complying with this obligation except for the reimbursement of
> reasonable costs. If you provide Squiz.Net with a copy of Your
> Modifications and Squiz.Net make Your Modifications available for
> download from Our website, then this will be deemed to satisfy the
> requirements of this clause.
This is forced distribution and effectively denies the right to private
modifications.
I'm obliged to disclose any private modification some other party is
interested in; even I'm not satisfied with the result, even if I think
it would harm my reputation (because my modification sucks or for
similar reasons).
This is definitely non-free.
>
> 3. Option to Limit Obligation
> 3.1 In return for a mutually agreed consideration, Squiz.Net may, at
> its own discretion and without requirement, choose to conditionally
> release You from some of Your obligations under this Licence.
How nice...
> Specifically, Squiz.Net may choose to conditionally waive Your
> obligation to:
[...]
> For this Clause to operate, you must:
>
> (i) have the written consent of Squiz.Net;
>
> (ii) adhere to all of the conditions of Squiz.Net's written consent;
> and
>
> (iii) have paid the agreed consideration in full.
I guess we do not have any written consent.
Anyway most of Debian users would not have such a written consent...
[...]
> 4.2 Definitions
[...]
> Modifications means any alterations, additions, enhancements,
> extensions, modules, developments, versions, releases, corrections,
> fixes, Related Documentation, adaptations, translations and derivative
> works of that software (collectively called), whether in source or
> object code.
Related Documentation is considered a Modification!
Even when it's not a derivative work!
This license seems to try and contaminate other software (maybe it fails
DFSG#9).
[...]
> Notify means
[...]
Notify means essentially that you must surrender your right to privacy!
:-(
[...]
> 4.14 Termination
>
> This Licence and the rights granted to You by Squiz.Net, in particular
> those rights granted by Clauses 1.1 and 1.2, will terminate
> automatically if:
[...]
> (b) You initiate or threaten legal proceedings of any kind against
> Squiz.Net;
In other words I must waive my right to sue Squiz.Net for any reason...
This is a fee for the permissions I am granted by Squiz.Net.
They can start doing nasty things to me and I cannot sue them, unless I
can afford the license termination...
Again non-free: it's a significant restriction I must accept in order to
be granted any rights on the Software (I'm also thinking about the
Tentacles of Evil Test...).
So, in summary, this license is awfully non-free.
I would rather not touching this piece of software with a 3 meter
pole...
--
:-( This Universe is buggy! Where's the Creator's BTS? ;-)
......................................................................
Francesco Poli GnuPG Key ID = DD6DFCF4
Key fingerprint = C979 F34B 27CE 5CD8 DC12 31B5 78F4 279B DD6D FCF4
On 2/3/06, Andrew Donnellan <ajdlinux at gmail.com> wrote:
> (Originally from debian-legal, forwarded because it is in LA's interests)
>
> This is about the Squiz.net Open Source License, the license of the
> MySource Matrix CMS software now used by the Federal Government. LA
> members might be interested.
>
> andrew
>
> ---------- Forwarded message ----------
> From: Andrew Donnellan <ajdlinux at gmail.com>
> Date: Feb 3, 2006 8:41 PM
> Subject: Re: Squiz.net Open Source License - is it free?
> To: debian-legal at lists.debian.org
>
>
> And they say they support "open source". Just looking at the fact that
> they require notification of modification is non-free, then the poorly
> written clauses, etc.
>
> Software under this license and the 'open source' banner will now be
> implemented by businesses and even the Australian government, when it
> is clearly non-free. I'll email Squiz with these issues and see what
> they say.
>
> andrew
>
> On 2/3/06, Glenn Maynard <glenn at zewt.org> wrote:
> > This is one of the most non-free and poorly written licenses I've seen
> > pass the list in a long time.
> >
> >
> > On Fri, Feb 03, 2006 at 11:47:39AM +1100, Andrew Donnellan wrote:
> > > (a) You must not introduce any virus, worm, trojan horse or malicious
> > > code into the Software;
> >
> > Free Software must allow transforming the software in any way, even ones
> > which the author considers reprehensible. Free Software has its own
> > inherent defenses against such things; it doesn't need to bend arms
> > legally, too.
> >
> > > however, this Licence applies, and You must ensure that it continues
> > > to apply, to each part of the Software (including Modifications of it)
> > > despite any such distribution or use.
> >
> > This sounds like it's requiring me to enforce the license, which is
> > unacceptable.
> >
> > > This Licence does not apply to
> > > any computer program other than the Software, even if that program is
> > > distributed along with the Software.
> >
> > What if it does--eg. I'm packaging two "Squiz.Net" applications side by
> > side? This is a poorly drafted version of the GPL's "mere aggregation"
> > clause.
> >
> > > 1.4 If You distribute all or part of the Software You must do so in
> > > source code form (regardless of whether you also distribute an object
> > > code form).
> >
> > This is very poorly written. It seems to say "you may not distribute
> > object form, source code only--regardless of whether you distribute
> > object code", which is a contradiction.
> >
> > > 2. Intellectual Property
> > > 2.1 You agree that Squiz.Net controls all intellectual property rights
> > > (including copyright) in every aspect of the Software, including
> > > source code and related documentation.
> >
> > If this is saying "you acknowledge that we hold copyright on the things
> > we hold copyright to", then it's a no-op. Text later in the license
> > suggests this is not the case.
> >
> > But it says "agree", and "every aspect of the Software" seems to include
> > modifications. It's saying "you agree that we hold copyright to your
> > modifications". That's not acceptable. (In the US, it's also not binding,
> > since copyright transfer must be made in writing, but I have no idea about
> > the rest of the world, including including Australia.)
> >
> > > 2.2 Where Squiz.Net has created source code of Software, we believe
> > > that it does not infringe another person's copyright, but we make no
> > > representations as to patent infringement.
> >
> > The license requires that *we* make representations about patent
> > infringement, demanding that we represent that we don't know of any.
> > It's hypocritical to demand that we do so, while explicitly not doing so
> > themselves.
> >
> > > 2.3 It is Your responsibility to investigate and obtain permission
> > > from the holder of any patent for use of any patent used by the
> > > Software and to pay any royalties to the patent holder in connection
> > > with Your use of such a patent. However, to avoid doubt, the rights in
> >
> > If this is intended as a statement of fact, then it's also a no-op. If
> > it's saying "to comply with this copyright license, you must also comply
> > with patents", then it's not.
> >
> > > clauses 1.1 and 1.2 include a right to use all relevant patents held
> > > by Squiz.Net or which are assigned or licensed to Squiz.Net under
> > > clause 2 of this Licence or under clause 2 of a licence by Squiz.Net
> > > to another user on the terms of this Licence.
> >
> > This is the only good thing about this license: an explicit patent
> > license.
> >
> > > 2.4 If You alter, modify or add to the Software, You are expected to
> > > assign all of Your intellectual property rights (including copyright
> > > and patent rights) in any Modifications to Squiz.Net including
> > > copyright in any compilation comprised of any part of the original
> > > source code of the Software and Your Modifications to the Software. If
> > > you agree to assign the copyright of Your Modifications, Squiz will
> > > grant You and every other user of the Software a perpetual,
> > > world-wide, royalty-free, non-revokable, non-exclusive licence to use
> > > the Modifications.
> >
> > If this is a requirement, then it's unacceptable. I have no idea what
> > "you are expected" means in a license. It seems like they're either
> > making up phraseology as they go along, or like Australian copyrights
> > are wildly different from anything I've seen. If they merely mean
> > "we really want you to do this, but you don't have to", then it's
> > another no-op.
> >
> > Note that upstream developers are perfectly free to say "we will not
> > incorporate any of your modifications into our codebase unless you
> > sign over the copyright to us". The FSF does that.
> >
> > > 2.5 You agree to waive all moral rights that You may have in any
> > > Modifications You make. You consent to the use of Your Modifications
> > > by Squiz.Net or any other user under a licence on the terms of this or
> > > another substantially similar licence, even if you might regard that
> > > use as derogatory treatment under moral rights laws.
> >
> > "Nice try." This tries to fix "droit d'auteur" problems. Unfortunately,
> > the very nature of the problem is that these "moral rights" are legally
> > inalienable, so you can't waive them. I don't know if this does any harm,
> > though.
> >
> > > 2.6 If You make available to Squiz.Net, or any other user, any of Your
> > > Modifications, You represent to Us that these are Your original work
> > > and that, as far as You are aware, neither it or its assignment,
> >
> > This is unacceptable. It's perfectly normal to modify a work by
> > adapting the work of some third party. For example, I can adapt
> > a permissively-licensed bit of code to the Linux kernel. I can't
> > represent that it's my original work, because it's not.
> >
> > > licence or use under this Licence or another licence on these terms
> > > infringes the intellectual property rights of any other person other
> > > than a patent identified by a notation made in the source code you
> > > have made available.
> >
> > Hold up. This is saying "you represent that, as far as you are aware,
> > your modifications don't violate any patents". That includes patents
> > that wouldn't hold up in court, but due to lack of trying, havn't
> > been struck down officially.
> >
> > >
> > > 2.7 If the assignment in clause 2.4 is ineffective or does not occur
> > > for any reason, You grant to Squiz.Net a royalty free, perpetual,
> > > worldwide licence to use all intellectual property rights You have in
> > > all Modifications to the Software, including the right to grant
> > > licences to others on the terms of this or another substantially
> > > similar Licence.
> >
> > This does two things:
> >
> > - "You grant us a license to your modifications, even if we never
> > receive them".
> > - "The license we get is wider than this license"--they can waive
> > permissions, if they think the result is "substantially similar".
> >
> > This is a gray, undecided area. I'd consider it in more depth, but
> > there's so much else wrong with this license that it's not necessary.
> >
> > > 2.8 You must Notify Squiz.Net within 30 days of making any
> > > Modifications even if You do not intend to distribute those
> > > Modifications. Notify is defined in Clause 4.2 below. If Your
> >
> > This is unacceptable. Copyright holders don't get to be all-knowing
> > monitors of everything beying done with their software, and this is
> > in basic violation of the Dissident test and the Desert Island test.
> >
> > > 2.10 You are obliged to promptly provide a copy of any Modifications
> > > You make to any other party that requests a copy of Your Modifications
> > > and in a format reasonably requested by them. You may not charge any
> >
> > This is unacceptable, for similar reasons.
> >
> > > 4.14 Termination
> > >
> > > This Licence and the rights granted to You by Squiz.Net, in particular
> > > those rights granted by Clauses 1.1 and 1.2, will terminate
> > > automatically if:
> > >
> > > (a) You knowingly fail to comply with its terms and in particular the
> > > terms of Clause 3.1;
> > >
> > > (b) You initiate or threaten legal proceedings of any kind against Squiz.Net;
> >
> > This is unacceptable. If Squiz.Net engages in blackmail, extortion or
> > slander against me, DoS's my machine, or drives a truck up to my house
> > and makes off with my car, I may initiate perfectly legitimate legal
> > proceedings against them. They are not free (in a free license) to use
> > their software as a lever to discourage my doing so.
> >
> > --
> > Glenn Maynard
> >
> >
> > --
> > To UNSUBSCRIBE, email to debian-legal-REQUEST at lists.debian.org
> > with a subject of "unsubscribe". Trouble? Contact listmaster at lists.debian.org
> >
> >
>
>
> --
> Andrew Donnellan
> http://andrewdonnellan.com
> http://ajdlinux.blogspot.com
> Jabber - ajdlinux at jabber.org.au
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>
> --
> Andrew Donnellan
> http://andrewdonnellan.com
> http://ajdlinux.blogspot.com
> Jabber - ajdlinux at jabber.org.au
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--
Andrew Donnellan
http://andrewdonnellan.com
http://ajdlinux.blogspot.com
Jabber - ajdlinux at jabber.org.au
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