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From Engel Nyst <engel.n...@gmail.com>
Subject Re: New versions of CC licenses
Date Mon, 09 Dec 2013 02:21:13 GMT
On 12/07/2013 09:32 PM, Jeffrey Thompson wrote:
> Think if it this way, if A licensed B the code under AL2.0 as a private
> deal and not one that A has ever made available to anyone else.  Does it
> change your mind on whether C should be able to exercise AL2.0 rights to
> that code after it receives them from B under the GPL?  I would say the
> answer to that questions HAS TO BE yes, it does affect the answer.  C
> doesn't have an offer from A under AL2.0, so C's only avenue of rights is
> from B and B's grant is under the GPL, so that's what C is stuck with.
>

It is not clear to me what means "A licensed B the code under AL2.0 as a 
private deal".

Does it mean "A made an agreement with B that they give *B* and only B, 
/by the text of the agreement/, a license that looks like AL2.0"?

That would not be AL2.0. It's easy to use the concept (and I see this in 
certain communities) "[permissive-license-here] to B", in particular I 
see "BSD to B". People seem to understand the term, by comparison with 
the license text I assume, with a restriction added. But to me (I never 
use the term), that's not AL2.0, if it's granted only to B, *by the 
license text*.

I believe the term obscures a significant difference: a license "AL2.0 
text, but amended to apply only to B, excluding C and everyone else" in 
the /license text/ is a proprietary license. Clearly proprietary. It has 
only stylistic similitude with AL2.0, conceptually it's very different 
than AL2.0.

All open licenses are granted by the copyright holder to everyone. Not 
to B, excluding everyone else. Not /by the license/.

It doesn't matter in practice, most of the time, because B acts as 
recipient; if D is not a recipient, nothing happens. But when C becomes 
a recipient in some form, I don't understand *from where* can B take the 
right to completely override [thus, change] the license A gave to C for 
the /original work/ inside.

If B goes to C and tells them "I have from A a license to me and only 
me, excluding you. Now, I'm giving you these rights on everything inside 
this package: [proprietary agreement follows]", then I believe B is 
incorrect. A is the only source of *licensing rights* for the original 
work, and A has granted AL2.0 to everyone, not only to B. Not /by the 
license/.

A is the only copyright holder of the /original work/. As far as C is 
concerned, B can combine the license of A with their own terms (AL2.0 
allows it) and the practical effect on C can very well be restrictive. 
But as *licensing rights* are concerned, as also explained in this 
thread, AL2.0 makes clear that no matter what terms are added, they 
should not be construed as modifying AL2.0 for the original work.

Switching an open license to a proprietary license between A and B seems 
to me a significant modification *of A's license*.

I don't see how can B can claim they can do that. Not saying A's license 
cannot be considered sort of this way, for many practical purposes, but 
you're talking about licensing rights.

It seems to me your theory is that an open license would be entirely 
equivalent with "AL2.0 but only to B, or AL2.0 but only to C, or AL2.0 
to D[...]". That is, a dual-, tri-, [no of downloads from 
upstream]-license. A dual-, tri-, n- proprietary license. I do not 
believe your understanding is correct.

In my reading, C doesn't have to go get more rights from somewhere else 
(i.e. upstream) in order to have AL2.0. When they receive the /original 
work/, they have AL2.0 on it, with or without some additional terms [if 
B sets them] to obey to, or practical problems, which might of course 
restrict their exercise of AL2.0 rights.


Please note that I have no relation with Apache. I'm a BSD licensor, 
among others, which is the same situation here (in my reading). Feel 
free to ignore this message for the purpose of this discussion, I just 
find it very interesting.

I do not think BSD license /from the copyright holder/ is a simple sum 
of sorts of proprietary agreements, and I am surprised by your 
insistence to erase it completely. I don't see why you need to.

It already allows you to restrict C, with additional terms between B and 
C, and/or withholding source, and/or making modifications under your 
license and introducing practical issues for C.

BSD, AL2.0, CC-BY already allow you almost anything.

I am somehow amazed by your insistence to erase them completely. I do 
not think your understanding is correct.

I think your perspective is heavily biased by a permanent assumption 
that only sole/exclusive licenses can exist, so you try to reduce an 
open license to a set of those [sort of]. I don't think that in (most) 
open licensing world, such understanding exists, nor practice.

B is not the only licensor to C, even when they channel /in practice/ to 
C, the rights from A with added restrictive terms on top of.

Also, I'd note, as AGPL-licensed projects contributor, I never consider 
that a BSD or AL2.0 component license is "erased" (though I'm not 
entirely convinced it's the same mechanism that seems to "erase" it as 
the switch to a proprietary license is, either).


Thank you for the discussion. I've been watching it, and it has been 
very instructive.


-- 
~enyst

"Excuse me, Professor Lessig, but may I ask you to sign this CLA, so 
that we have legally your permission to distribute your CC-licensed words?"

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