When Amateurs Write Licenses

 <  Day Day Up  >  

The same programmers who cringe when a lawyer attempts to write high-quality software feel no qualms about writing their own open source licenses. Their goal, it appears, is to craft something that sounds like a license, to define a form of software freedom with reasonable terms and conditions, and then wait for the community to adopt the license and distribute software under it. This technique sometimes works. Some members of the open source community are more concerned with making a philosophical statement, getting free software distributed to the world, and letting license enforcement take care of itself somehow in the future. That can be a commendable goal, but from a lawyer's perspective, it is amateurish and risky.

The Artistic License is one such amateur license. It is a license that a lawyer would have difficulty explaining and that a judge would probably not be able to understand. I will incautiously invoke the wrath of the authors of that license by candidly expressing my concerns about it. In this, I don't mean to be harsh to them personally ; I'm really trying to make a point about the art of license drafting. I know what those authors were trying to say, and I support their goals of artistic attribution and integrity, but I believe they made a legal mess of it.

Here are a few examples from the definitions in the Artistic License:

"Package" refers to the collection of files distributed by the Copyright Holder, and derivatives of that collection of files created through textual modification. (Artistic License definitions.)

This definition of Package assumes that a licensor is distributing only one collection of files; assumes that the phrase collection of files has a clear meaning; confuses the terms derivative works and collective works by referring to derivatives of that collection ; and then describes the process by which derivative works are created as involving something called textual modification (what other kinds of modifications are possible?).

"Standard Version" refers to such a Package if it has not been modified, or has been modified in accordance with the wishes of the Copyright Holder. (Artistic License definitions.)

The law has little to do with wishes . The law of contracts has nothing to do with enforcing the wishes of a party, or even determining what those wishes are. Precatory language about wishes creates what in law are called illusory rights and obligations ; such language is unenforceable.

"You" is you, if you're thinking about copying or distributing this Package. (Artistic License definitions.)

The law has little to do with what people think . A person does not become a licensee of intellectual property merely by thinking about it.

"Reasonable copying fee" is whatever you can justify on the basis of media cost, duplication charges, time of people involved, and so on. (You will not be required to justify it to the Copyright Holder, but only to the computing community at large as a market that must bear the fee.) (Artistic License definitions.)

The courts don't care about matters that the parties to the license admit is not important enough to justify to the copyright owner. The only point of this definition of r easonable copying fee is for the authors to describe a law of economics, namely that the marketplace determines whether a price is reasonable. It has no legal significance whatsoever.

At various places the Artistic License refers to the public domain . (The public domain was explained earlier in Chapter 2 when I discussed the duration of copyright and patent.) The use of that term in the Artistic License is misleading. For example:

You may apply bug fixes, portability fixes and other modifications derived from the Public Domain or from the Copyright Holder. A Package modified in such a way shall still be considered the Standard Version. (Artistic License section 1.)

What the authors of this license may have meant was that modifications derived from other open source works , because there is so little software actually available in the public domain . It is not clear how works licensed under different licenses will interact legally with works licensed under the Artistic License. I will discuss the complex issue of license compatibility later in this book.

I understand that the authors of the Artistic License wanted to retain some control over subsequent derivative and collective works. In this, they subtly cross the line that distinguishes academic and reciprocal licenses. An academic license, remember, imposes no burdens or obligations on the creator and distributor of collective and derivative works. However, the Artistic License imposes burdens and obligations that require the licensee "to place ... modifications in the public domain or otherwise make them freely available" ( § 3[a]) and "to rename any non-standard executables" ( § 3[c]). It requires distributors of executable versions of the licensed software to "accompany the distribution with the machine-readable source of the package with ... modifications" ( § 4[b]) and to "document clearly the differences" between the standard version and the modified version ( § 4[c]). There is one other option, to "make other distribution arrangements with the Copyright Holder" ( § § 3[d] and 4[d]). All of these requirements can be avoided, however:

You may distribute this Package in aggregate with other (possibly commercial) programs as part of a larger (possibly commercial) software distribution provided that you do not advertise this Package as a product of your own. (Artistic License section 5.)

Given the confusing language in the Artistic License, I suggest that the best way to deal with it is to treat it as an academic license granting broad freedom to copy, modify, distribute, make, use, and sell the original software. If you distribute copies or derivative works of software licensed under the Academic License, you are obligated to attribute the original software to the original author, and to make it clear to your licensees that you ”and not the original author ”are responsible for your derivative works. Because of the ambiguity, in legal terms, of the terms aggregate and larger , this is an easy out. With the broad exception provided in this section 5, it appears, the other strictures in the Artistic License can be easily avoided simply by being careful not to advertise the software as a product of your own.

 <  Day Day Up  >  


Open Source Licensing. Software Freedom and Intellectual Property Law
Open Source Licensing: Software Freedom and Intellectual Property Law
ISBN: 0131487876
EAN: 2147483647
Year: 2004
Pages: 166

flylib.com © 2008-2017.
If you may any questions please contact us: flylib@qtcs.net