Subject: Re: discuss: OCLC Office of Research Open Source License
From: "Rod Dixon" <rod@cyberspaces.org>
Date: Mon, 30 Sep 2002 11:48:30 -0400

As far as the OSD is concerned, generally, the ORPL 2.0 seems fine to me,
except for a couple of license drafting matters.

I would consider revising the grant clause (section 4) to reflect the
initial grant, which was placed under section 1 ("Your Rights). For clarity,
it seems appropriate to use a grant clause that contains the rights granted
by the licensor as section 1 is written. Section 4 is a bit more mysterious
in that it reads like a cross-license for subsequent licensees? Is this
section an attempt to show consideration? Lastly, I can understand why an
original licensor would want section 4 to survive "termination" of the
license, but I am unaware of the legal basis for that kind of outcome. Even
so, assuming this is a grey area, would it be more plausible to specify the
purposes for which the grant in section 4 survives termination rather than
to say any reason? I am assuming that none of the reasons include
termination by the licensor. Is this correct?

 - Rod

Rod Dixon
Visiting Assistant Professor of Law
Rutgers University Law School - Camden
rod@cyberspaces.org
http://www.cyberspaces.org/dixon/
My papers on the Social Science Research Network (SSRN) are available
through the following url: http://papers.ssrn.com/author=240132


----- Original Message -----
From: "Russell Nelson" <nelson@crynwr.com>
To: <license-discuss@opensource.org>
Cc: "Terrall,Tom" <terrall@oclc.org>
Sent: Monday, September 30, 2002 10:39 AM
Subject: discuss: OCLC Office of Research Open Source License


> [ Please discuss this license.  -russ ]
>
> Open Source Initiative. September 23, 2002
>
>
>
>
> Dears Sirs,
>
>
> We are submitting the OCLC Office of Research Public License 2.0 as a
> candidate for OSI Certification. Feel free to post the license to the
> license-discuss list. Let me know if I can assist in anyway. Thank
> you.
>
>
> Thomas L. Terrall
> Software Engineer
>
>
> License Approval Requirements
>
> 1. The OCLC Research Public License 2.0 (ORPL) is available for review at
(
> http://purl.oclc.org/oclc/research/ORPL/  )
> 2. The ORPL 1.0 version was prepared by individuals, who are no longer at
OCLC.
> It appeared to be most closely related to Mozilla Public License 1.0 (MPL)
in
> content. ORPL 2.0 is a reworking of ORPL 1.0 guided by the Open Source
> Definition and MPL. Our legal department assisted with the legal language
and
> necessary legal clauses. We hoped to improve the license by clarifying
certain
> issues and by simplifying and reorganizing the content. We also made
certain
> adaptations to our situation. Here are some of the differences between
ORPL and
> MPL.
> i) ORPL does not allow for the executable code to be
> distributed with a different license. See MPL 3.6.
> ii) ORPL does not contain the content,  Inability to Comply Due
> to Statute or Regulation. See MPL 4.0.
> iii) MPL allows licenser to grant additional rights to licensee.
> We did not see this was applicable to our case.
> iv) ORPL does not restrict in any way the commercial use of
> software while MPL is unclear (to me) on this matter.
> v) ORPL does not require the modifications made by a
> Contributor to be sent to the Original Contributor.
> vi) ORPL gives the required steps if there is a third party claim
> against a version of software.
> vii) ORPL explicitly states: This License provides you no implied
> rights or licenses to the intellectual property of any
> Contributor.
> viii) MPL gives a more detailed definition of Source Code,
> including interface definition files, compressed files, make
> files and so on. We did not include these details
> ix) MPL specifies a time interval for source code to be available
> for those licensees who request it. We did not include a time
> limit for this.
> x) ORPL does not cover the case that contributors will not offer
> warranty, support or liability protection to the code
> recipients.
>
>
> 3. Certain licenses are very simple, such as BSD, ORPL would have to take
> precedence over BSD in a Combined Work.  A license such as MRL which
> requires Contributor updates to forwarded to the Original Contributor
would take
> precedence over ORPL. I don't know of an entirely incompatible license.
>
>          OCLC Office of Research Open Source License
>
> Section 1. Your Rights
>
> Subject to these terms and conditions of this License, the
> OCLC Office of Research (the "Original Contributor") and each
> subsequent contributor (collectively with the Original Contributor,
> the "Contributors") hereby grant you a non-exclusive, worldwide,
> no-charge, transferable license to execute, prepare derivative
> works of, and distribute (internally and externally), for
> commercial and noncommercial purposes, the original code
> contributed by Original Contributor and all Modifications
> (collectively called the "Program").
>
> Section 2. Definitions
>
> A "Modification" to the Program is any addition to or deletion from
> the contents of any file of the Program and any new file that
> contains any part of the Program. If you make a Modification and
> distribute the Program externally you are a "Contributor." The
> distribution of the Program must be under the terms of this license
> including those in Section 3 below.
>
> A "Combined Work" results from combining and integrating all or
> parts of the Program with other code. A Combined Work may be
> thought of as having multiple parents or being result of multiple
> lines of code development.
>
> Section 3. Distribution Licensing Terms
>
> A. General Requirements
>
> Except as necessary to recognize third-party rights or third-party
> restriction (see below), a distribution of the Program in any of
> the forms listed below must not put any further restrictions on the
> recipient's exercise of the rights granted herein.
>
> As a Contributor, you represent that your Modification(s) are your
> original creation(s) and, to the best of your knowledge, no third
> party has any claim (including but not limited to intellectual
> property claims) relating to your Modification(s). You represent
> that each of your Modifications includes complete details of any
> third-party right or other third-party restriction associated with
> any part of your Modification (including a copy of any applicable
> license agreement).
>
> The Program must be distributed without charge beyond the costs of
> physically transferring the files to the recipient.
>
> This Warranty Disclaimer/Limitation of Liability must be
> prominently displayed with every distribution of the Program in any
> form:
>
> YOU AGREE THAT THE PROGRAM IS PROVIDED AS-IS, WITHOUT WARRANTY OF
> ANY KIND (EITHER EXPRESS OR IMPLIED).  ACCORDINGLY, OCLC MAKES NO
> WARRANTIES, REPRESENTATIONS OR GUARANTEES, EITHER EXPRESS OR
> IMPLIED, AND DISCLAIMS ALL SUCH WARRANTIES, REPRESENTATIONS OR
> GUARANTEES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES
> OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, AS TO:
> (A) THE FUNCTIONALITY OR NONINFRINGEMENT OF PROGRAM, ANY
> MODIFICATION, A COMBINED WORK OR AN AGGREGATE WORK; OR (B) THE
> RESULTS OF ANY PROJECT UNDERTAKEN USING THE PROGRAM, ANY
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> SHALL THE CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT,
> INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR ANY OTHER DAMAGES
> (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR
> SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION)
> HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT,
> STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE)
> ARISING IN ANY WAY OUT OF THE USE OF THE PROGRAM, EVEN IF ADVISED
> OF THE POSSIBILITY OF SUCH DAMAGES.  YOU HEREBY WAIVE ANY CLAIMS
> FOR DAMAGES OF ANY KIND AGAINST CONTRIBUTORS WHICH MAY RESULT FROM
> YOUR USE OF THE PROGRAM.
>
> B. Requirements for a Distribution of Modifiable Code
>
> If you distribute the Program in a form to which the recipient can
> make Modifications (e.g. source code), the terms of this license
> apply to use by recipient. In addition, each source and data file
> of the Program and any Modification you distribute must contain the
> following notice:
>
> "Copyright (c) 2000- (insert then current year) OCLC Online
> Computer Library Center, Inc. and other contributors. All rights
> reserved.  The contents of this file, as updated from time to time
> by the OCLC Office of Research, are subject to OCLC Research Public
> License Version 2.0 (the "License"); you may not use this file
> except in compliance with the License. You may obtain a current
> copy of the License at http://purl.oclc.org/oclc/research/ORPL/.
> Software distributed under the License is distributed on an "AS IS"
> basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See
> the License for the specific language governing rights and
> limitations under the License.  This software consists of voluntary
> contributions made by many individuals on behalf of OCLC
> Research. For more information on OCLC Research, please see
> http://www.oclc.org/oclc/research/.  The Original Code is
> ______________________________.  The Initial Developer of the
> Original Code is ________________________. Portions created by
> ______________________ are Copyright (C) _____
> _______________________. All Rights Reserved. Contributor(s):
> ______________________________________."
>
> C. Requirements for a Distribution of Non-modifiable Code
>
> If you distribute the Program in a form to which the recipient
> cannot make Modifications (e.g. object code), the terms of this
> license apply to use by recipient and you must include the
> following statement in appropriate and conspicuous locations:
>
> "Copyright (c) 2000- (insert then current year) OCLC Online
> Computer Library Center, Inc. and other contributors. All rights
> reserved."
>
> In addition, the source code must be included with the object code
> distribution or the distributor must provide the source code to the
> recipient upon request.
>
> D. Requirements for a Combined Work Distribution
>
> Distributions of Combined Works are subject to the terms of this
> license and must be made at no charge to the recipient beyond the
> costs of physically transferring the files to recipient.
>
> A Combined Work may be distributed as either modifiable or
> non-modifiable code. The requirements of Section 3.B or 3.C above
> (as appropriate) apply to such distributions.
>
> An "Aggregate Work" is when the Program exists, without
> integration, with other programs on a storage medium. This License
> does not apply to portions of an Aggregate Work which are not
> covered by the definition of "Program" provided in this
> License. You are not forbidden from selling an Aggregate
> Work. However, the Program contained in an Aggregate Work is
> subject to this License.  Also, should the Program be extracted
> from an Aggregate Work, this License applies to any use of the
> Program apart from the Aggregate Work.
>
> Section 4. License Grant
>
> For purposes of permitting use of your Modifications by OCLC and
> other licensees hereunder, you hereby grant to OCLC and such other
> licensees the non-exclusive, worldwide, royalty- free,
> transferable, sublicenseable license to execute, copy, alter,
> delete, modify, adapt, change, revise, enhance, develop, publicly
> display, distribute (internally and externally) and/or create
> derivative works based on your Modifications (and derivative works
> thereof) in accordance with these Terms. This Section 4 shall
> survive termination of this License for any reason.
>
> Section 5. Termination of Rights
>
> This non-exclusive license (with respect to the grant from a
> particular Contributor) automatically terminates for any entity
> that initiates legal action for intellectual property infringement
> (with respect to the Program) against such Contributor as of the
> initiation of such action.
>
> If you fail to comply with this License, your rights (but not your
> obligations) under this License shall terminate automatically
> unless you cure such breach within thirty (30) days of becoming
> aware of the noncompliance. All sublicenses granted by you which
> preexist such termination and are properly granted shall survive
> such termination.
>
> Section 6. Other Terms
>
> Except for the copyright notices required above, you may not use
> any trademark of any of the Contributors without the prior written
> consent of the relevant Contributor.  You agree not to remove,
> alter or obscure any copyright or other proprietary rights notice
> contained in the Program.
>
> All transfers of the Program or any part thereof shall be made in
> compliance with U.S.  import/export regulations or other
> restrictions of the U.S. Department of Commerce, as well as other
> similar trade or commerce restrictions which might apply.
>
> Any patent obtained by any party covering the Program or any part
> thereof must include a provision providing for the free, perpetual
> and unrestricted commercial and noncommercial use by any third
> party.
>
> If, as a consequence of a court judgment or settlement relating to
> intellectual property infringement or any other cause of action,
> conditions are imposed on you that contradict the conditions of
> this License, such conditions do not excuse you from compliance
> with this License. If you cannot distribute the Program so as to
> simultaneously satisfy your obligations under this License and such
> other conditions, you may not distribute the Program at all. For
> example, if a patent license would not permit royalty-free
> redistribution of the Program by all those who receive copies
> directly or indirectly through you, you could not satisfy both the
> patent license and this License, and you would be required to
> refrain entirely from distribution of the Program.
>
> If you learn of a third party claim or other restriction relating
> to a Program you have already distributed you shall promptly redo
> your Program to address the issue and take all reasonable steps to
> inform those who may have received the Program at issue. An example
> of an appropriate reasonable step to inform would be posting an
> announcement on an appropriate web bulletin board.
>
> The provisions of this License are deemed to be severable, and the
> invalidity or unenforceability of any provision shall not affect or
> impair the remaining provisions which shall continue in full force
> and effect.  In substitution for any provision held unlawful, there
> shall be substituted a provision of similar import reflecting the
> original intent of the parties hereto to the extent permissible
> under law.
>
> The Original Contributor from time to time may change this License,
> and the amended license will apply to all copies of the Program
> downloaded after the new license is posted. This License grants
> only the rights expressly stated herein and provides you with no
> implied rights or licenses to the intellectual property of any
> Contributor.
>
> This License is the complete and exclusive statement
> of the agreement between the parties. This License shall be
> governed by and construed in accordance with the laws of the State
> of Ohio and the United States of America, without regard to
> principles of conflicts of law.
>
> -- end of license
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