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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: License Stewards
Date Sun, 17 Mar 2013 03:37:02 GMT
Henri Yandell surmised:
> I don't see why Open Source [license] text would be different. 
> The protection is in the name (ie: you can't call it Mozilla Public 
> License 4.0 without the steward (ie: owner of trademark)'s approval).

As in physics, trademark law isn't always as naively expected. One can't
trademark a license. It isn't considered "goods" or "services" under the
normal categories authorized by the USPTO. 

Exactly what form of "intellectual property" an open source license itself
might be, remains to be discovered.

Our Foundation is the steward of the Apache License. Anyone who distributes
software under a false version of that license probably isn't guilty of
trademark infringement -- but I'd probably accuse them of some sort of fraud
on the public. This sounds more like a law school exam question than a real
life worry, though.  

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
3001 King Ranch Rd., Ukiah, CA 95482
Office: 707-485-1242
Linkedin profile: http://linkd.in/XXpHyu 


-----Original Message-----
From: Henri Yandell [mailto:bayard@apache.org] 
Sent: Saturday, March 16, 2013 4:48 PM
To: legal-discuss@apache.org
Subject: Re: License Stewards

What's the state for licenses and contracts in general?

My vague understanding was that it's as you describe, they're treated as
public domain.

I don't see why Open Source text would be different. The protection is in
the name (ie: you can't call it Mozilla Public License 4.0 without the
steward (ie: owner of trademark)'s approval).

Hen

On Fri, Mar 15, 2013 at 5:33 AM, Noah Slater <nslater@apache.org> wrote:
> Larry,
>
> Did you get a response to this?
>
> Best,
>
>
> On 3 October 2012 20:44, Lawrence Rosen <lrosen@rosenlaw.com> wrote:
>>
>> A recent thread on the legal-discuss@ list at Apache asked whether 
>> someone could take the Apache License 2.0 and revise it for their own
purposes.
>> After a side trip I took into the esoteric question about whether a 
>> copyright license could itself be copyrighted, I bring the discussion 
>> to this license-discuss@ list at OSI along with a bit of history. 
>> (I'm copying the legal-discuss@apache list only for closing the 
>> circle.)
>>
>>
>>
>> In the olden days, open source licenses usually contained a copyright 
>> statement and the identification of a "license steward". This person 
>> or organization (e.g., RMS/FSF for the GPL licenses; IBM for the CPL; 
>> and Mitchell Baker at what was then the Mozilla Project for the MPL) 
>> reputedly had exclusive control over future license versions. Indeed, 
>> Mitchell took offense at that time because, without her permission, I 
>> had revised the MPL license into a version I thought was easier to 
>> read and understand (the Jabber license, since deprecated).
>>
>>
>>
>> Whether or not the license steward role was legally significant, it 
>> certainly raised control issues in the community and created 
>> animosity over license language purity even where personal offense 
>> was not intended. Even though the goal was to change the license for 
>> some presumably good legal effect, some people still took offense when
their "own" words were changed.
>>
>>
>>
>> When I released the AFL/OSL licenses in early drafts, I omitted any 
>> declaration of license steward but I asserted with a copyright notice 
>> that I was the author of those licenses. Several people (including, I 
>> remember, Mitchell Baker) complained that I was claiming control over 
>> a license that people might want to enhance or change. Nobody trusted 
>> that I personally (or my heirs) would forever have the good of the
community at heart.
>>
>>
>>
>> I agreed with them. That was my incentive to write section 16 of 
>> those licenses, which declared authorship but disclaimed control over
changes.
>> This section 16 also carefully prohibited what was then characterized 
>> as "relicensing" of existing works; declared that the name of the 
>> license was exclusive; and reminded the world that only OSI could 
>> bless a revised license as "open source".
>>
>>
>>
>> Here's what section 16 of the OSL says:
>>
>>
>>
>> 16) Modification of This License. This License is Copyright C 2005 
>> Lawrence Rosen. Permission is granted to copy, distribute, or 
>> communicate this License without modification. Nothing in this 
>> License permits You to modify this License as applied to the Original
Work or to Derivative Works.
>> However, You may modify the text of this License and copy, distribute 
>> or communicate your modified version (the "Modified License") and 
>> apply it to other original works of authorship subject to the 
>> following conditions: (i) You may not indicate in any way that your 
>> Modified License is the "Open Software License" or "OSL" and you may 
>> not use those names in the name of your Modified License; (ii) You 
>> must replace the notice specified in the first paragraph above with 
>> the notice "Licensed under <insert your license name here>" or with a 
>> notice of your own that is not confusingly similar to the notice in 
>> this License; and (iii) You may not claim that your original works 
>> are open source software unless your Modified License has been 
>> approved by Open Source Initiative (OSI) and You comply with its license
review and certification process.
>>
>>
>>
>> Most licenses nowadays omit declarations of license stewardship and 
>> don't even mention the ownership of future derivative versions. For 
>> example - and this was the gist of the question on the Apache 
>> legal-discuss@ list - the Apache License 2.0 says nothing about the 
>> right to create derivative versions of the license.
>>
>>
>>
>> In this ambiguous situation, what is the default rule for derivative 
>> works of open source licenses? My assertion is that all open source 
>> licenses may freely be copied or modified into different versions; 
>> permission from a license steward is never necessary to do that 
>> because these are functional legal documents for which copyright 
>> protection is inappropriate. (In an email at Apache, I characterized 
>> my copyright notice on my own licenses as
>> "chutzpah".) Without OSI approval, however, nobody responsible will 
>> call the modified license an "open source license".
>>
>>
>>
>> Do you agree?
>>
>>
>>
>> /Larry
>>
>>
>>
>> Lawrence Rosen
>>
>> Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)
>>
>> 3001 King Ranch Rd., Ukiah, CA 95482
>>
>> Office: 707-485-1242
>>
>>
>
>
>
>
> --
> NS

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