Other Important MPL License Provisions

As I said, the MPL is the first of the industrial-strength open source licenses. It deals with issues that are typically the province of licensing and legal professionals. But because several of these are critically important to license enforcement, I introduce them here.

U.S. Government Rights

The MPL contains what must seem like cryptic instructions regarding U.S. government users of the Covered Code :

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. ( MPL section 10.)

The Code of Federal Regulations (C.F.R.) documents U.S. government policies and Chapter 48 of the C.F.R. contains Federal Acquisition Regulations. The relevant rules relating to patents, data, and copyrights are:

Commercial computer software or commercial computer software documentation shall be acquired under licenses customarily provided to the public to the extent such licenses are consistent with Federal law and otherwise satisfy the Government's needs. (48 C.F.R. 12.212.)

Offerors and contractors shall not be required to ... relinquish control to, or otherwise provide, the Government rights to use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation. (48 C.F.R. 227.7202-1.)

The Government shall have only the rights specified in the license under which the commercial computer software or commercial computer software documentation was obtained. (48 C.F.R. 227.7202-3.)

A specific contract clause governing the Government's rights in commercial computer software or commercial computer software documentation is not prescribed. As required by 227.7202-3, the Government's rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation shall be identified in a license agreement. (48 C.F.R. 227.7202-4.)

Considering the broad scope of any open source license, under which the Government's rights ”and everybody's rights ”to use, modify, reproduce, release, perform, display, or disclose computer software is unquestioned, it is hard to imagine why open source licenses would need a U.S. Government Rights provision like the one in the MPL. The United States government ”just like everybody else ”is being given a license to free software. What more or less do they need?

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. ( MPL section 3.4[c].)

The MPL is the first license to assure licensees that Modifications are original to the Contributors who submit them or are being distributed under the authority of the original author.

This concept will appear as a Warranty of Provenance in the OSL/AFL licenses described in Chapter 9.

Jurisdiction and Venue

In the event of a dispute about the MPL, California law applies. As specified in the license, any litigation will take place in the federal courts of the Northern District of California, with venue in Santa Clara, California. (MPL section 11.)

I will discuss jurisdiction and venue, as well as governing law, in Chapter 12.

Attorneys ' Fees and Costs

In the event of a dispute about the MPL, the losing party in court must pay reasonable attorneys' fees and costs. (MPL section 11.) What is reasonable is left to a court to decide.

Software Is Not Goods

I noted very early in this book that it is important to distinguish personal property rights in the copy of the software acquired in a store, and property rights in the intellectual property embodied in the software. Software licensed under the MPL is specifically intended not to be subject to laws intended for the sale and distribution of goods in international commerce.

The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. ( MPL section 11.)

The most important reason for this provision is to ensure that international laws concerning implied warranties won't apply to this software. As the MPL and other open source licenses remind everyone, the software is provided on an "AS-IS" basis. (MPL section 7.)

This provision may not be enforceable in all jurisdictions.

Multiple-Licensed Code

I haven't yet explained why many open source licensors find it useful to license their software under more than one license. That topic will come in Chapter 11 when I discuss dual licensing models.

The MPL makes it clear, however, that the Initial Developer may designate its software as being available under multiple licenses, and may specify which license, besides the MPL, is allowed. (Frequently the second license is the GPL.) Note that a Contributor under the MPL cannot, independently, elect to use a different license for his or her Modifications . Only the Initial Developer makes that choice. This point will be discussed in Chapter 10 when I address the problem of relicensing open source software.