Re: [gentoo-dev] Adding Nipper license to the tree

[Robin H. Johnson]

On Sun, Jun 14, 2009 at 09:28:24PM +0100, Mike Auty wrote:
> One of the packages I maintain (nipper) has recently undergone a change
> of license, from being GPLed to a new license that whilst mostly being
> commercial features a non-commercial/personal use element.
The website stills says GPL v3:
http://nipper.titania.co.uk/licensing.php

Reading the license, I'm really wondering why the change was made.
It feels like it was written by a lawyer with little to no understanding
of open source licensing - with the sole purpose of producing revenue,
without regards as to the rights of the user. Additionally, the lawyer
is not cognizant of some issues in the jurisdiction of the contract.

> Due to the new license (and the no redistribution of any kind bits) the
> package will need mirror/fetch restrictions, which is fine.  My concern
> is with the copyright clause which states:
...
> I'm wondering how this might affect any in-tree patching, because whilst
> I'm aware of this clause and happy to send any patches upstream and/or
> not patch at all, I can't say the same for every Gentoo dev that might
> want to fix a problem.
I'm answering this further down.

> I know the upstream author personally, and he's providing the
> source-code primarily for Gentoo users (we can always use the existing
> binary RPMs if patching is an issue), but I thought I should ask what
> the best course of action would be here?
Try hard to persuade him not to pursue this license. Alternatively,
dual-license instead of applying this license only. If his userbase
cares enough about the product, they're going to fork after seeing this
new license.

Similar to the TrueCrypt issue, I'd say do NOT commit any ebuild covered
by this license until the matter is resolved.

IANAL, but I do follow lots of open-source licensing, and occasionally
help organizations in compliance with open-source licensing, so here are
my comments on various portions of the license. At least two clauses are
unenforceable or outright illegal in some parts of the world. Several
more are at the very least questionable.

>                       LICENCE AGREEMENT FOR NIPPER
...
> By installing, copying, downloading, accessing or otherwise using NIPPER you agree to
> be bound by the terms of this Agreement. If you do not agree to the terms of this
> agreement you may not download, install or use NIPPER.
Click-through licenses are invalid in many jurisdictions. Additionally,
there's no provision in the license, for anybody to be bound by the
license simply for downloading it and NOT unpacking it.

> 2.1 This Licence relates to all versions of NIPPER developed by the Licensor. The
> Licensor reserves all rights.
Nope, if previous versions were under GPL, they remain under it. They
may be additionally licensed under new terms, but the GPL remains in
effect AS well.

> 3.1 End User Commercial Use Licence
...
> 3.2 System Integrator Commercial Use Licence
(I'd say Gentoo might fit under System Integrator, but certainly not
Commercial).

> 3.3.3 The Licensee may only use NIPPER for up to five (5) Devices. Any additional
> use will require a Commercial Use license.
This is bizarre. So a Not-for-profit organization or university couldn't
use it for their IT infrastructure.

> 4.2 The Licensor reserves the right to revise the Licence at any time without
> notice. The current licence terms are available from the Licensors web site.
This clause is invalid is many jurisdictions.
http://www.out-law.com/page-8328 (covers UK and US)
http://www.techdirt.com/articles/20090508/0212134792.shtml (US)
Specifically, all parties MUST agree to a change for it to be valid.
Additionally since the license granted in 3.3.1 does not expire, you can
continue to use it forever without agree to the change.

> 5. Technical Support
> 5.1 Unless otherwise arranged, technical support for NIPPER is provided through
> the Licensor's web site http://www.titania.co.uk
Some lawyers would say that due to this clause can't offer support for
the packaging of Nipper on Bugzilla?

> Any patches or updates that the Licensee may develop for NIPPER must
> be immediately submitted to the Licensor. In addition, the Licensee
> will forthwith transfer without charge all current and future rights
> including copyrights and other intellectual property rights relating
> to such updates to the Licensor.
Gentoo is NOT a licensee under any of the classes of use listed in the
license. We don't use it, and we're not a commercial integrator. Ergo
there is a loophole that allows us to patch it without losing our rights
to the patches. HOWEVER, I'd be concerned that the context
(non-modified) portions of the path are still bound by the original
license, and would violate non-distribution.

-- 
Robin Hugh Johnson
Gentoo Linux Developer & Infra Guy
E-Mail     : robbat2@g.o
GnuPG FP   : 11AC BA4F 4778 E3F6 E4ED  F38E B27B 944E 3488 4E85