* [gentoo-dev] Adding Nipper license to the tree
@ 2009-06-14 20:28 Mike Auty
2009-06-14 22:07 ` Tony "Chainsaw" Vroon
2009-06-15 0:39 ` Robin H. Johnson
0 siblings, 2 replies; 6+ messages in thread
From: Mike Auty @ 2009-06-14 20:28 UTC (permalink / raw
To: gentoo-dev
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Hiya guys,
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.
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:
"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."
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 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?
Thanks,
Mike 5:)
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[-- Attachment #2: LICENCE --]
[-- Type: text/plain, Size: 12156 bytes --]
LICENCE AGREEMENT FOR NIPPER
This is a binding, legal agreement between you the end user (the "Licensee") and
Titania Limited (Company Number 06870498) whose registered office is at 46 Cormorant
Rise, Worcester, WR2 4BA, United Kingdom (the "Licensor") for the use of the Nipper
software products ("NIPPER") and electronic documentation (including the Nipper SDK).
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.
1. Definitions
"Computer" shall mean a device that NIPPER is installed on/run from.
"Device" shall mean a device for which NIPPER is used to produce a report.
"Commercial Use" shall mean any use of Nipper for profit whether by or for the
Licensee or for any person, organisation, government or government department. For
the avoidance of doubt Commercial Use includes the use by the Licensee in the course
of research funded by a commercial organisation.
"Non-Commercial Use" shall mean any use of NIPPER (by an individual) which is not
for profit.
"Subscription Fee" shall mean the fee payable for a Commercial Use Licence.
"Subscription Period" is the period renewable every 1, 2 or 3 years (as defined by
the subscription) from the date the Subscription Fee is paid for which the Licensee
may use NIPPER on a specified number of individual Devices.
2. Licensed Software
2.1 This Licence relates to all versions of NIPPER developed by the Licensor. The
Licensor reserves all rights.
3. Grant Of Licence
3.1 End User Commercial Use Licence
3.1.1 The Licensee may only use NIPPER after paying the Subscription Fee. The
Subscription Fee shall be determined in accordance with the Licensor's (or the
Licensor's reseller's) price list which shall be available from the Licensor (or
the Licensor's reseller's) on request.
3.1.2 The Licensor grants the Licensee a non-exclusive, non-transferable licence
to use NIPPER during the Subscription Period.
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the Subscription Period. Any additional use will require the payment of an
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The Licensee may install NIPPER on any number of Computers owned by the Licensee.
An exclusion is made where the Licensee provides a managed service, then the
Licensee may additionally install NIPPER on devices managed by the Licensee.
3.1.5 The Licensee may not sell or re-sell NIPPER or otherwise share, exploit or
allow it to be transferred to any person for value or for Commercial Use.
3.1.6 The Licensee may not rent, lease, hire out or lend NIPPER.
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Subscription Fee shall be determined in accordance with the Licensor's (or the
Licensor's reseller's) price list which shall be available from the Licensor (or
the Licensor's reseller's) on request.
3.2.2 The Licensor licenses NIPPER for use in commercial products developed by
the Licensee where NIPPER comprises not more than 50% of the product's
functionality ("the Licensed Product").
3.2.3 The Licensor grants the Licensee the right to integrate NIPPER using only
the NIPPER API, library and executables developed by the Licensor.
3.2.4 The Licensor grants the Licensee a non-exclusive, worldwide, revocable,
non-transferable, license to use, reproduce, distribute and to incorporate NIPPER
into the Licensee's Product, and to update, market, and distribute the Licencees
Product to end users. The Licensee may distribute to end-users directly, or through
multiple tiers of distribution, including resellers, distributors, VARS and OEMs.
3.2.5 The Licensee may grant to end users the right to use the Licensee's Product
with NIPPER. The Licensee may not permit end users to sub-license or externally
redistribute NIPPER in whole or in part.
3.2.6 The Licensee may only distribute NIPPER as part of the Licensee's paid
commercial product whereby a price is paid by all end users for its use.
3.2.7 Termination of this Licence will not effect the end users right to use NIPPER.
Termination of this Licence will terminate end users right to further NIPPER updates.
The licence will automatically be terminated if the Licence Subscription expires.
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warranties express or implied, including warranties of merchantability and fitness
for a particular purpose. The Licensor does not warrant that Nipper will meet the
Licensee's requirements or that the operation of Nipper will be uninterrupted or
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3.3.1 The Licensee may use NIPPER for an unlimited Subscription Period for
Non-Commercial Use.
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use NIPPER.
3.3.3 The Licensee may only use NIPPER for up to five (5) Devices. Any additional
use will require a Commercial Use license.
3.4 The Licensee may only install NIPPER on Computers owned by the Licensee.
3.3.5 The Licensee may not sell or re-sell NIPPER or otherwise share, exploit or
allow it to be transferred to any person for value or for Commercial Use.
3.3.6 The Licensee may not rent, lease, hire out or lend NIPPER.
4. Updates
4.1 The Licensee is entitled to install and use all NIPPER updates during the
Subscription Period.
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.
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
6. Description of other Rights and Limitations
6.1. Limitation on Modification: The Licensee shall not modify or reverse engineer
NIPPER, except and only to the extent that such activity is expressly permitted by
law.
6.2. Source Code: The Licensee is not permitted to merge, integrate, reverse
engineer, copy or paste the Nipper source code into the Licensee's own software.
6.3. Termination: Without prejudice to any other rights it may have, the Licensor
may terminate this Agreement with immediate effect if the Licensee fails to comply
with the terms and conditions of this Agreement. If this Agreement is terminated
the Licensee must remove all copies of NIPPER and all of its component parts from
their Computers, destroy the copies and provide a certificate to this effect to the
Licensor.
6.4 Illegal Use: NIPPER may not be used for any purpose that is in breach of any
local, regional or foreign law. The Licensee and Licensor are responsible for their
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7. Copyright
All title and intellectual property rights in and to NIPPER, the accompanying
printed materials and any copies obtained from the Internet are owned by the
Licensor. All title and intellectual property right in and to the content, which
may be accessed through use of NIPPER is the property of the respective content
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content. All rights not expressly granted are reserved by the Licensor.
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.
By using NIPPER, the Licensee acknowledges and agrees that the copyright, trade secrets,
and all other intellectual property rights of whatever nature in NIPPER, and all copies
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TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING, BUT NOT
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DAMAGES ARISING FROM PERFORMANCE OR NON-PERFORMANCE OF THE SOFTWARE. OUR MAXIMUM LIABILITY
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PAID BY YOU FOR THE SOFTWARE. Nothing contained in these Terms shall prejudice the
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The Licensor accepts no liability for any claim of infringement based on the use of an
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The Licensor shall not be liable for any loss or for any failure to perform any
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13. Governing Law and Jurisdiction
This Agreement shall be construed in accordance with the laws of England and Wales and
the parties hereby submit to the exclusive jurisdiction of the English Courts.
Titania Limited / Nipper Licence Version 3.0 (5th June 2009)
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^ permalink raw reply [flat|nested] 6+ messages in thread
* Re: [gentoo-dev] Adding Nipper license to the tree
2009-06-14 20:28 [gentoo-dev] Adding Nipper license to the tree Mike Auty
@ 2009-06-14 22:07 ` Tony "Chainsaw" Vroon
2009-06-15 0:39 ` Robin H. Johnson
1 sibling, 0 replies; 6+ messages in thread
From: Tony "Chainsaw" Vroon @ 2009-06-14 22:07 UTC (permalink / raw
To: gentoo-dev
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On Sun, 2009-06-14 at 21:28 +0100, Mike Auty wrote:
> but I thought I should ask what
> the best course of action would be here?
If it were my ebuild, I would not add the updates under the new,
draconic license and either fork the GPL'd code or mask the package for
removal.
You can not in any way guarantee that a Gentoo user is non-commercial.
Especially the patch clause would make ebuilds unsustainable.
As you say the author personally, perhaps there is a sense of reason
that you could appeal to.
> Thanks,
> Mike 5:)
Regards.
Tony V.
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^ permalink raw reply [flat|nested] 6+ messages in thread
* Re: [gentoo-dev] Adding Nipper license to the tree
2009-06-14 20:28 [gentoo-dev] Adding Nipper license to the tree Mike Auty
2009-06-14 22:07 ` Tony "Chainsaw" Vroon
@ 2009-06-15 0:39 ` Robin H. Johnson
2009-06-15 23:58 ` Mike Auty
1 sibling, 1 reply; 6+ messages in thread
From: Robin H. Johnson @ 2009-06-15 0:39 UTC (permalink / raw
To: gentoo-dev
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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@gentoo.org
GnuPG FP : 11AC BA4F 4778 E3F6 E4ED F38E B27B 944E 3488 4E85
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^ permalink raw reply [flat|nested] 6+ messages in thread
* Re: [gentoo-dev] Adding Nipper license to the tree
2009-06-15 0:39 ` Robin H. Johnson
@ 2009-06-15 23:58 ` Mike Auty
2009-06-16 0:18 ` Tony "Chainsaw" Vroon
0 siblings, 1 reply; 6+ messages in thread
From: Mike Auty @ 2009-06-15 23:58 UTC (permalink / raw
To: gentoo-dev
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Robin H. Johnson wrote:
> The website stills says GPL v3:
> http://nipper.titania.co.uk/licensing.php
Yep, the website's going to be updated for version 1.0 (with the license
change).
> ...
I can't really comment on a lot of this, unfortunately.
> Similar to the TrueCrypt issue, I'd say do NOT commit any ebuild covered
> by this license until the matter is resolved.
Yeah, that's what I was afraid of...
> ... legal comments ...
Again, I'm afraid I can't really comment on these, but thank you for the
analysis, it was much appreciated to have a second pair of eyes look
this stuff over.
>> 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.
I'm not keen on relying on loopholes. If I did still want to try and
get a version of this into the tree, would packaging the binary RPM seem
a reasonable solution? It's a shame given that the sources are
potentially available (primarily released for Gentoo) and no real
problem with making an ebuild, it's just the legalese... 5:(
So I'll leave the source version out of the tree, but I'd like thoughts
on using RPM as a solution? Also I don't know whether an exception
could be made for Gentoo, but equally I don't know how to phrase one of
them either (Gentoo Foundation or all Gentoo developers), so I'm
hesitant to ask. If anyone has any other ideas or possibilities, do let
me know. Thanks...
Mike 5:)
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^ permalink raw reply [flat|nested] 6+ messages in thread
* Re: [gentoo-dev] Adding Nipper license to the tree
2009-06-15 23:58 ` Mike Auty
@ 2009-06-16 0:18 ` Tony "Chainsaw" Vroon
2009-06-16 2:04 ` [gentoo-dev] " Duncan
0 siblings, 1 reply; 6+ messages in thread
From: Tony "Chainsaw" Vroon @ 2009-06-16 0:18 UTC (permalink / raw
To: gentoo-dev
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On Tue, 2009-06-16 at 00:58 +0100, Mike Auty wrote:
> So I'll leave the source version out of the tree, but I'd like thoughts
> on using RPM as a solution? Also I don't know whether an exception
> could be made for Gentoo, but equally I don't know how to phrase one of
> them either (Gentoo Foundation or all Gentoo developers), so I'm
> hesitant to ask. If anyone has any other ideas or possibilities, do let
> me know. Thanks...
Drop it from the tree entirely. Leave it to them to provide ebuilds.
Obviously they do not want this software to be packaged by you, if they
did they wouldn't put this intricate obstacle course in your way.
Sometimes life can be so simple.
> Mike 5:)
Regards,
Tony V.
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^ permalink raw reply [flat|nested] 6+ messages in thread
* [gentoo-dev] Re: Adding Nipper license to the tree
2009-06-16 0:18 ` Tony "Chainsaw" Vroon
@ 2009-06-16 2:04 ` Duncan
0 siblings, 0 replies; 6+ messages in thread
From: Duncan @ 2009-06-16 2:04 UTC (permalink / raw
To: gentoo-dev
"Tony \"Chainsaw\" Vroon" <chainsaw@gentoo.org> posted
1245111501.11818.5.camel@localhost, excerpted below, on Tue, 16 Jun 2009
01:18:21 +0100:
> On Tue, 2009-06-16 at 00:58 +0100, Mike Auty wrote:
>> So I'll leave the source version out of the tree, but I'd like thoughts
>> on using RPM as a solution? Also I don't know whether an exception
>> could be made for Gentoo, but equally I don't know how to phrase one of
>> them either (Gentoo Foundation or all Gentoo developers), so I'm
>> hesitant to ask. If anyone has any other ideas or possibilities, do
>> let me know. Thanks...
>
> Drop it from the tree entirely. Leave it to them to provide ebuilds.
> Obviously they do not want this software to be packaged by you, if they
> did they wouldn't put this intricate obstacle course in your way.
> Sometimes life can be so simple.
I agree.[1] The intent of the license is clear enough, make it
proprietary, with enough questions about the legal implications and
effectiveness of said license that it's simply not worth the hassle and
risk.
I honestly don't know why he's trying to do this. As others have pointed
out, either his software is valuable enough to be worth forking, and it
WILL fork (with the entire community shipping the freedomware fork), or
it's not, and he's effectively sentencing it to some likely obscure
proprietaryware niche. The friendly dual-license route would seem much
more effective at doing what he seems to want to do. <shrug>
.....
[1] I wrote (and revised...) an earlier reply coming to about the same
conclusion, but decided the SNR wasn't high enough to send and the
revisions weren't helping, so I sent it to /dev/null.
--
Duncan - List replies preferred. No HTML msgs.
"Every nonfree program has a lord, a master --
and if you use the program, he is your master." Richard Stallman
^ permalink raw reply [flat|nested] 6+ messages in thread
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2009-06-14 20:28 [gentoo-dev] Adding Nipper license to the tree Mike Auty
2009-06-14 22:07 ` Tony "Chainsaw" Vroon
2009-06-15 0:39 ` Robin H. Johnson
2009-06-15 23:58 ` Mike Auty
2009-06-16 0:18 ` Tony "Chainsaw" Vroon
2009-06-16 2:04 ` [gentoo-dev] " Duncan
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