[gentoo-dev] Adding Nipper license to the tree

[gentoo-dev] Adding Nipper license to the tree

[Mike Auty]

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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 --]
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                      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.

3.1.3 The Licensee may only use NIPPER for the number of licensed Devices during 
the Subscription Period. Any additional use will require the payment of an 
additional Subscription Fee.

3.1.4 The Licensee may only install NIPPER on Computers owned by the Licensee.
 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.

3.2 System Integrator Commercial Use Licence

3.2.1 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.

3.2.2 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.

3.2.8 The Licensor expressly disclaims, and the Licensee hereby expressly waives, all 
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 
error-free, or that errors in Nipper will be corrected. The Licensor shall have no 
liabilities or obligations to the Licensee for damages arising out of or in 
connection with the installation, use or performance of Nipper.

3.3 Non-Commercial Use Licence

3.3.1 The Licensee may use NIPPER for an unlimited Subscription Period for 
Non-Commercial Use.

3.3.2 The Licensor grants the Licensee a non-exclusive, non-transferable licence to 
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 
own compliance with local, regional or foreign law.

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 
owner and may be protected by copyright. This Agreement grants no right to use such 
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 
thereof, partial or complete, in all media and whether or not merged into other 
materials, are and shall remain the property of the Licensor.

8. Disclaimer of Warranty on Software
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND. THE LICENSOR, ITS 
LICENSORS AND DISTRIBUTORS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT 
NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS 
FOR A PARTICULAR PURPOSE. The licensor, its licensors and distributors do not guarantee 
the Software or related documentation in terms of their correctness, accuracy, 
reliability, or otherwise. You assume the entire risk as to the results and performance 
of the Software and related documentation.

9. Complete Statement of Warranty
The limited warranty provided in this agreement is the only warranty of any kind that is 
made by the licensor. No oral or written information or advice given by the licensor, its 
dealers, distributors, agents, or employees shall create a warranty or in any way increase 
the scope of the foregoing limited warranty, and you may not rely on any such information 
or advice. Some jurisdictions do not allow the limitation or exclusion of express or 
implied warranties, so the above exclusion may not apply to you, and you may have other 
rights, which may vary from jurisdiction to jurisdiction

10. Third Party Rights
Any legal entity who is not a party to this Licence shall have no right to enforce any 
term of this Licence.

11. Limitation of Liability
IN NO EVENT SHALL THE LICENSOR, ITS LICENSORS, ITS DISTRIBUTORS OR ITS SUPPLIERS BE LIABLE 
TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING, BUT NOT 
LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA OR OTHER COMMERCIAL OR ECONOMIC 
LOSS, ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE OR RELATED 
DOCUMENTATION, EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 
Some jurisdictions do not allow the limitation or exclusion of liability for incidental or 
consequential damages so the above limitation or exclusion may not apply to you. THE 
LICENSOR, ITS LICENSORS, DISTRIBUTORS AND SUPPLIERS SHALL IN NO EVENT BE LIABLE FOR ANY 
DAMAGES ARISING FROM PERFORMANCE OR NON-PERFORMANCE OF THE SOFTWARE. OUR MAXIMUM LIABILITY 
TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER SHALL IN NO EVENT EXCEED THE AMOUNT 
PAID BY YOU FOR THE SOFTWARE. Nothing contained in these Terms shall prejudice the 
statutory rights of any party dealing as a consumer. The licensor is acting on behalf of 
its employees, distributors, licensors and affiliates for the purpose of disclaiming, 
excluding, and/or restricting obligations, warranties, and liability as provided in this 
clause, but in no other respects and for no other purpose.

The Licensor accepts no liability for any claim of infringement based on the use of an 
altered version of NIPPER or where NIPPER is offered with third party products.

12. Force Majeure
The Licensor shall not be liable for any loss or for any failure to perform any 
obligation hereunder due to causes beyond its control including without limitation:
* Act of God including tempest, fire, or natural disaster;
* War, civil war, sabotage or act of terrorism;
* Government sanction, embargo, import or export regulation or order;
* Labour disputes, including strikes, lockouts, boycotts or other industrial action (but 
  usually strikes of the labour force of the party claiming force majeure are expressly 
  excluded);
* Failure in the transportation of equipment, machinery or personnel or in the provision 
  of any utility including power, gas, water, or communication services.

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

[Tony "Chainsaw" Vroon]

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

[Robin H. Johnson]

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

[Mike Auty]

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

[Tony "Chainsaw" Vroon]

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

[Duncan]

"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