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Since: Apr 14, 2007
Posts: 24
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(Msg. 1) Posted: Fri Nov 09, 2007 7:30 pm
Post subject: DFSG-freeness of any license that fixes the ASP loophole
Archived from groups: linux>debian>legal (more info?)
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Hello.
I just discovered that the people I was trying to help to migrate to the
GPL might be hesitating because they don't want their software to be
used to provide a service over the network without the source being
release, claiming that their service does not count as distribution (the
ASP loophole).
Now I have not got anything conclusive from the follow two previous
threads on this list about the AGPL:
http://lists.debian.org/debian-legal/2007/06/msg00176.html and followups
http://lists.debian.org/debian-legal/2007/09/msg00032.html
as to whether the AGPL is considered DFSG-free or no. So I can't
recommend the AGPL to the hesitating project without being sure it's
DFSG-free (since I want their work to be included in Debian and Ubuntu
ultimately).
There are similar attempts to fix the ASP loophole. Consider for example
the Honest Public License, whose original is at:
http://www.funambol.com/blog/capo/files/HPL_draft.txt
Since everyone on this list (I presume) can get the GPL at
/usr/share/common-licenses/GPL-2, I provide only the additional clause:
d) For the purposes of determining the right to obtain copies of the
source code (as well as the right to modify and distribute such source
code and object code), the term distribution shall include the
communication of the Program or work based on the Program which is
intended to interact with third party users (meaning anyone other than
you or if you are an entity such as a corporation and not an individual,
that corporation), through a computer network and the user shall have
the right to obtain the source code of the Program or work based on the
Program. This provision is an express condition for the grants of
license hereunder and any such communication shall be considered a
distribution under Section 1, 2 and 3.
I feel the following would be a simpler version:
When you make it possible for this work or derivative works to be
directly or indirectly used over a network, you must prominently provide
information as to how to obtain the complete source code for such work:
* on the same interface that is provided for the usage of such work
* or if the above is not possible, on another publicly accessible
location closely related to your activities
Would any of the above two clauses or a similar clause in a license
cause the license to be NOT DFSG-free? If yes, why?
Shriramana Sharma.
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External
Since: Dec 07, 2006
Posts: 6
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(Msg. 2) Posted: Sat Nov 10, 2007 11:10 am
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
Archived from groups: per prev. post (more info?)
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On Sat, Nov 10, 2007 at 05:58:52AM +0530, Shriramana Sharma wrote:
> So I can't recommend the AGPL to the hesitating project without
> being sure it's DFSG-free (since I want their work to be included in
> Debian and Ubuntu ultimately).
I suspect it'll be necessary to wait for the final version of the AGPL
before this can be decided. It would probably be unwise for any
developer to adopt a discussion draft in any event.
APGL seems to have a number of problems, and indeed I've just left a
couple of comments of my own on the FSF's discussion draft at
http://gplv3.fsf.org/comment/agplv3-draft-2.html). Whether the nature
of the problems are enough to make it non-free, though, is difficult
to say.
> There are similar attempts to fix the ASP loophole. Consider for example
> the Honest Public License, whose original is at:
>
> http://www.funambol.com/blog/capo/files/HPL_draft.txt
One problem with the HPL is that it is a modification of the GPL,
which is prohibited by the GPL itself.
> When you make it possible for this work or derivative works to be directly
> or indirectly used over a network, you must prominently provide information
> as to how to obtain the complete source code for such work:
> * on the same interface that is provided for the usage of such work
> * or if the above is not possible, on another publicly accessible location
> closely related to your activities
I'm not sure this solves the problem. "You must prominently provide
information as to how to obtain the complete source code". Well,
here's some prominently-provided information:
"PAY ME $25,000 AND I'LL LET YOU DOWNLOAD THE SOURCE FROM A
PASSWORD-PROTECTED AREA OF THIS SITE".
Same interface; prominent information; but clearly non-free (in any
sense).
Also, referring to "publicly accessible location" is ambiguous. I
assume this means location as in "server on the network", but it could
just as easily be read as meaning "our headquarters in northern
Scotland".
So I'd say that wording is not DFSG-compliant.
John
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Since: Dec 07, 2006
Posts: 6
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(Msg. 3) Posted: Sat Nov 10, 2007 7:00 pm
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
Archived from groups: per prev. post (more info?)
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On Sat, Nov 10, 2007 at 07:11:32PM +0100, Francesco Poli wrote:
> On Sat, 10 Nov 2007 16:05:53 +0000 John Halton wrote:
> > One problem with the HPL is that it is a modification of the GPL,
> > which is prohibited by the GPL itself.
>
> This is not really the case.
> As long as you change the license name (which was done by HPL authors),
> drop the preamble (which was done, as well), and modify the
> instructions-for-use accordingly (which was more or less done by HPL
> authors[1]), you have permission from the FSF to create a derivative
> license from the GNU GPL.
> See http://www.fsf.org/licensing/licenses/gpl-faq.html#ModifyGPL
I stand corrected. Thanks for the link. I note though that the same
FAQ goes on to say:
"Although we will not raise legal objections to your making a modified
license in this way, we hope you will think twice and not do it. Such
a modified license is almost certainly incompatible with the GNU GPL,
and that incompatibility blocks useful combinations of modules. *The
mere proliferation of different free software licenses is a burden in
and of itself*."
I think that is a good reason for holding off from seeking other
solutions to the "ASP problem" (assuming we are clear as to whether
there _is_ a problem, which is a different argument) until the AGPL
discussions have finalised.
John
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Since: Apr 14, 2007
Posts: 24
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(Msg. 4) Posted: Sat Nov 10, 2007 7:30 pm
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
Archived from groups: per prev. post (more info?)
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John Halton wrote:
> "PAY ME $25,000 AND I'LL LET YOU DOWNLOAD THE SOURCE FROM A
> PASSWORD-PROTECTED AREA OF THIS SITE".
> just as easily be read as meaning "our headquarters in northern
> Scotland".
Would this corrected clause then be DFSG-compliant? Added text marked
with carets.
When you make it possible for this work or derivative works to be
directly or indirectly used over a network, you must prominently provide
information as to how to obtain the complete source code for such work
^^at no more charge than the cost of transfer^^:
* on the same interface that is provided for the usage of such work
* or if the above is not possible, on another publicly accessible
^^network^^ location closely related to your activities
Shriramana Sharma.
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Since: Jun 04, 2007
Posts: 8
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(Msg. 5) Posted: Sun Nov 11, 2007 4:10 am
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
Archived from groups: per prev. post (more info?)
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Shriramana Sharma wrote:
> When you make it possible for this work or derivative works to be
> directly or indirectly used over a network, you must prominently provide
> information as to how to obtain the complete source code for such work
> ^^at no more charge than the cost of transfer^^:
> * on the same interface that is provided for the usage of such work
> * or if the above is not possible, on another publicly accessible
> ^^network^^ location closely related to your activities
Why bother with the technical implementation at all? Just say that
you must prominently provide the information where to get the source
from you to network users of the work.
Arnoud
--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
Arnoud blogt nu ook: http://blog.iusmentis.com/
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Since: Apr 14, 2007
Posts: 24
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(Msg. 6) Posted: Sun Nov 11, 2007 7:40 am
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
Archived from groups: per prev. post (more info?)
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Francesco Poli wrote:
> Yeah, and then the FSF goes on to publish (or seek to publish):
>
> * the GNU FDL [1]
> * the GNU AfferoGPL
> * the GNU SFDL [2]
> * the GNU Wiki License, mentioned in a GFDLv2-draft1 proposed clause[3]
As if their existing licenses are Harry Potter stories widely read and
understood and enjoyed, they are writing sequels! Thank God there is no
FSF fan fiction!
> But anyway, I'm under the impression that it could be impossible to
> address this "problem" without doing more harm than good.
> Any "solution" I've seen so far is either utterly non-free, or non-free
> in subtler ways.
How does it count to be non-free to be only required to release your
source code for certain kinds of uses? Anyway, you have not said whether
the clause I proposed would itself make a work non-DFSG-free.
> Disclaimers, as usual: IANAL, TINLA, IANADD, TINASOTODP.
I presume IANADD means "I am not a Debian Developer".
Shriramana Sharma.
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Since: Apr 14, 2007
Posts: 24
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(Msg. 7) Posted: Sun Nov 11, 2007 8:30 am
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
Archived from groups: per prev. post (more info?)
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Francesco Poli wrote:
> I'm not convinced that there actually is a problem.
> But anyway, I'm under the impression that it could be impossible to
> address this "problem" without doing more harm than good.
> Any "solution" I've seen so far is either utterly non-free, or non-free
> in subtler ways.
The only point from the DFSG I can conceive, with any stretch of the
imagination, such a clause to conflict would be "No discrimination
against fields of endeavour". But from
/usr/share/doc/debian-policy/policy.html/ch-archive.html#s-dfsg this
only means no prohibition of **use** in any field of endeavour:
"The license must not restrict anyone from making use of the program in
a specific field of endeavor. For example, it may not restrict the
program from being used in a business, or from being used for genetic
research."
Say I write a network-related software which I license under the
Sleepycat License + the additional ASP-fix clause which I concocted, I
am not outright *preventing* the *use* of that software by any
over-the-network service provider. I am only placing a requirement on
the use. The DFSG nowhere says that I cannot place a condition on the
*use* of a work.
Considering even the tests: 1) the "desert island" test is not
applicable, since such a castaway as described will not be able to
provide a service over the network. 2) the "dissident" will also not
provide a service across the network, since he wishes to keep himself
secret. Even if he provides a service to fellow dissidents across a
scrambled https connection, he will be required to distribute any source
or modified source only to the users of his service, i.e. his fellow
dissidents which is allowed by the dissident test.
I'm not sure what the "tentacles of evil" test even means! What
"required freedoms" can't the unfortunate under-evil-control author take
away? At any rate, I don't believe the tentacles of evil test would make
my Sleepycat+ASP-fix license non-DFSG-free. Please explain what exact
clause of DFSG such a license would conflict with.
Shriramana Sharma.
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Since: Apr 14, 2007
Posts: 24
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(Msg. 8) Posted: Sun Nov 11, 2007 8:40 am
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
Archived from groups: per prev. post (more info?)
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Arnoud Engelfriet wrote:
> Why bother with the technical implementation at all? Just say that
> you must prominently provide the information where to get the source
> from you to network users of the work.
I take it means: "you must prominently provide the information to
network users of the work as to where to get the source from you".
Well the idea is that we are making sure that those users get the best
chance of knowing that they have a right to the source code. When a
software is used for running an online email website like gmail.com, the
current wording requires a notification to be placed on the same UI that
is provided for using the service. But as I read somewhere (which is why
I added the "if this is not possible" wording) if a work is used on a
DNS server or similar, there will be no UI -- a user's computer would
merely communicate with the server in a limited language which would not
allow it to ask for the source code -- in that case, the next best place
is the company's website or something like that.
I did not think it was probable that a company providing such a service
would have no place on the network connected to their activities, in
other words, a website. So the current wording does not actually mandate
that they *have* or *provide* such a location itself. What would happen
when there is no such location on the network? Would the service
provider be excused from providing availability information of the
source code because they don't *have* such a location?
Shriramana Sharma.
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Since: Dec 07, 2006
Posts: 6
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(Msg. 9) Posted: Sun Nov 11, 2007 9:00 am
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
Archived from groups: per prev. post (more info?)
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On Sun, Nov 11, 2007 at 11:59:49AM +0100, Francesco Poli wrote:
> I'm not convinced that there actually is a problem.
I'm inclined to agree (though open to persuasion otherwise).
There seem to be two main positions one could take on this:
1. One could argue that objections to the ASP "loophole" come down
to a reluctance to accept the implications of the "no
restrictions on use" aspects of free software: "How dare people
make money out of the software I've written?"
2. Or one could argue that the AGPL and similar efforts are founded
on a visionary understanding (equivalent to RMS's insights of
the early 1980s) of how computing is going to develop over the
next few years, and a fear that without the AGPL a proprietary
software world could be rebuilt by default as more and more
software is used remotely.
But even if we take position #2, that still leaves the fundamental
problem as this: the AGPL makes it possible to add new and
incompatible licensing restrictions to GPLed software. It is therefore
a de facto threat to the GPL software ecosystem, as we could see more
and more useful software moving from the GPL world into the AGPL
world.
John
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Since: Apr 14, 2007
Posts: 24
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(Msg. 10) Posted: Sun Nov 11, 2007 9:20 am
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
Archived from groups: per prev. post (more info?)
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John Halton wrote:
> 1. One could argue that objections to the ASP "loophole" come down
> to a reluctance to accept the implications of the "no
> restrictions on use" aspects of free software: "How dare people
> make money out of the software I've written?"
I don't know about the AGPL. I stopped trying to grok the entirety of
any FSF license, but I am still forced to read them now and then because
whether I like it or not, the GPL gave strength to the FOSS movement and
it still plays a very large role.
Anyway, I feel you miss the point where someone who licenses their
software under a license with an ASP-fix clause does not want to prevent
their consumers (the service providers) from making money, any more than
Linus Torvalds who uses GPL for his software wants to prevent Red Hat
and SuSE from making money. They only want the *software* to be open and
free. I am surprised you could have such a misunderstanding as stated by
you above.
> But even if we take position #2, that still leaves the fundamental
> problem as this: the AGPL makes it possible to add new and
> incompatible licensing restrictions to GPLed software.
And I thought I was so careful in labeling this thread non-specific to
AGPL. AGPL was only an example. I mentioned it because it is poised to
becoming very widely used by virtue of being blessed by the FSF.
My question that started this thread was whether a simple ASP-fix clause
would make a work non-DFSG-free. The licensing terms *I* am presenting
for discussion is a Sleepycat+ASP-fix license which I have already
outlined on this list.
> a de facto threat to the GPL software ecosystem, as we could see more
> and more useful software moving from the GPL world into the AGPL
> world.
Are you saying that many companies are now making money by not freeing
and opening the FOSS, private modifications and derivative works that
they ostensibly "privately use" and "not distribute" for their network
services and those companies could face financial troubles if they are
forced to free and open up their private modifications and private
derivative works ("private" meaning "non-distributed" in the pre-AGPL
sense of the term "distribute")?
If so, I agree, and seeing as the GPL v3 allows works under it to be
combined with works under the AGPL v3 and be combinedly distributed
under the *AGPL* only, the FSF is apparently in support of this
world-view. FOSS commerce will be redefined, I guess. But really, I
don't see the Linux kernel or many other GPL-ed apps going under the
AGPL, seeing as the pure-desktop usage market is still wide, and is not
going to disappear in the foreseeable future.
Shriramana Sharma.
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Since: Dec 07, 2006
Posts: 6
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(Msg. 11) Posted: Sun Nov 11, 2007 11:20 am
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
Archived from groups: per prev. post (more info?)
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On Sun, Nov 11, 2007 at 05:55:53AM +0530, Shriramana Sharma wrote:
> Would this corrected clause then be DFSG-compliant? Added text marked with
> carets.
>
> When you make it possible for this work or derivative works to be directly
> or indirectly used over a network, you must prominently provide information
> as to how to obtain the complete source code for such work ^^at no more
> charge than the cost of transfer^^:
> * on the same interface that is provided for the usage of such work
> * or if the above is not possible, on another publicly accessible
> ^^network^^ location closely related to your activities
Better, but I'm still not sure how that would work out in practice: of
someone decides they "need" to set up a separate server with high
bandwidth in order to service the (probably fairly small) number of
source downloads, they could probably present the cost of this as
being non-trivial. I'm sure this is why the AGPL puts the cost burden
back onto the operator by insisting the source is made available
without charge.
Another problem with the proposed text is the use of works "directly
or indirectly". This gets us straight into the issue of "how far down
the stack" the licence reaches: you could have hundreds of different
programs that are "indirectly" used by anyone accessing the site, from
the kernel upwards.
Also, this licence places conditions merely on *use* of the unmodified
software ("When you make it possible for *this work*..."), which is a
major departure from the principles of the GPL. Even the AGPL places
the condition on those who *modify* the software, following the GPL
practice of only placing obligations on modifiers and distributors,
rather than users.
I begin to understand the thought processes that have led to the
current draft of the AGPL. I suspect the AGPL is heading towards being
the best way currently available of doing this. What I'm sceptical
about is whether it needs to be, or should be, done in the first
place.
John
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Since: Dec 07, 2006
Posts: 6
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(Msg. 12) Posted: Sun Nov 11, 2007 11:40 am
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
Archived from groups: per prev. post (more info?)
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On Sun, Nov 11, 2007 at 07:46:16PM +0530, Shriramana Sharma wrote:
> Anyway, I feel you miss the point where someone who licenses their
> software under a license with an ASP-fix clause does not want to
> prevent their consumers (the service providers) from making money,
> any more than Linus Torvalds who uses GPL for his software wants to
> prevent Red Hat and SuSE from making money. They only want the
> *software* to be open and free. I am surprised you could have such a
> misunderstanding as stated by you above.
Sorry, I shouldn't have mentioned money, as that does take the
discussion off in different directions. My point was simply that a
principle of free software has always been that users are not
*required* to share their own changes to the software. It is simply
that if they *do* distribute (or "propagate/convey", in GPL3 language)
then they must do so under the GPL.
The AGPL fundamentally changes this principle by saying, "If you use
the software for certain purposes, then we *are* going to make you
share your changes".
> My question that started this thread was whether a simple ASP-fix
> clause would make a work non-DFSG-free. The licensing terms *I* am
> presenting for discussion is a Sleepycat+ASP-fix license which I
> have already outlined on this list.
I suspect any ASP fix is going to run into a problem with para 6 of
the DFSG, since by its nature any such fix imposes differing
obligations depending on whether you use the software on a
publicly-accessible network or "behind the firewall".
This introduces a new distinction between different types of user (as
opposed to modifiers or distributors), which is a departure from
existing free software principles, where users are normally given
unrestricted rights.
> Are you saying that many companies are now making money by not
> freeing and opening the FOSS, private modifications and derivative
> works that they ostensibly "privately use" and "not distribute" for
> their network services and those companies could face financial
> troubles if they are forced to free and open up their private
> modifications and private derivative works ("private" meaning
> "non-distributed" in the pre-AGPL sense of the term "distribute")?
Plenty of other companies are making money by not sharing the private
modifications they have made to free software they use internally for
*non*-networked services. Should they be required to share their
changes in the same way as those who providing network-facing
services? This seems to take us in the direction of a general
principle that "if you make money from free software then you must
share your changes with others".
John
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Since: Jun 04, 2007
Posts: 8
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(Msg. 13) Posted: Sun Nov 11, 2007 12:40 pm
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
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Shriramana Sharma wrote:
> I did not think it was probable that a company providing such a service
> would have no place on the network connected to their activities, in
> other words, a website. So the current wording does not actually mandate
> that they *have* or *provide* such a location itself. What would happen
> when there is no such location on the network? Would the service
> provider be excused from providing availability information of the
> source code because they don't *have* such a location?
Hence my suggestion to not refer to the mechanics at all. Just say
that they have to offer you the source. It's then up to the company
to insert a download link in the same interface, or to include a
written offer, GPL-style, in the documentation for the product, or
to include a statement in the signup form, DNS TXT record or whatever.
Things may get a little complicated with anonymous services like NTP.
Arnoud
--
Arnoud Engelfriet, Dutch & European patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
Arnoud blogt nu ook: http://blog.iusmentis.com/
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Since: Nov 29, 2006
Posts: 152
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(Msg. 14) Posted: Sun Nov 11, 2007 4:50 pm
Post subject: Re: DFSG-freeness of any license that fixes the ASP loophole [Login to view extended thread Info.]
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* John Halton:
>> My question that started this thread was whether a simple ASP-fix
>> clause would make a work non-DFSG-free. The licensing terms *I* am
>> presenting for discussion is a Sleepycat+ASP-fix license which I
>> have already outlined on this list.
>
> I suspect any ASP fix is going to run into a problem with para 6 of
> the DFSG, since by its nature any such fix imposes differing
> obligations depending on whether you use the software on a
> publicly-accessible network or "behind the firewall".
I'm not sure if it's actually against the letter or spirit of the DFSG.
But one very appealing aspect of free software is that you can be
totally ignorant of all license issues as long as you don't distribute
the software (particularly in jurisdictions where running a program is
unrestricted once you've obtained a legal copy). Even if I need to link
to some proprietary library to interface to legacy systems, this is my
own business entirely, and nobody cares.
The AGPL has the potential to change that. How do its terms apply if I
use modified AGPL-licensed software to provide a service, without
actually exposing a direct interface to the network? Am I circumventing
the AGPL?
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External
Since: May 17, 2007
Posts: 102
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(Msg. 15) Posted: Sun Nov 11, 2007 5:40 pm
Post subject: debian-legal is not for license experimentation (was: DFSG-freeness of any license that fixes the ASP loophole) [Login to view extended thread Info.]
Archived from groups: per prev. post (more info?)
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Shriramana Sharma <samjnaa.TakeThisOut@gmail.com> writes:
> Anyway, you have not said whether the clause I proposed would itself
> make a work non-DFSG-free.
As has been pointed out in the past when you tried this: The
debian-legal list is not a resource for experimenting with creating
hypothetical new licenses and clauses. We have enough work with the
*actual* license terms on *actual* software works proposed for Debian.
Anyone considering creating a new license, and who is still testing
clauses "for DFSG-freeness", is strongly advised to instead choose a
license that has undergone much more troubleshooting and that already
has broad use in Debian packages.
--
\ "Jury: A group of 12 people, who, having lied to the judge |
`\ about their health, hearing, and business engagements, have |
_o__) failed to fool him." -- Henry L. Mencken |
Ben Finney
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