Subject: Re: For approval: Open Test License v1.1
From: "Rod Dixon, J.D., LL.M." <rdixon@cyberspaces.org>
Date: Thu, 8 Jan 2004 23:52:16 -0500

The issue I see for the Open Test License v1.1 is with regard to the
provision containing the third condition. This may not be strictly an OSD
problem, but, it is not clear to me how condition three is triggered. As
written, it seems to require a POTENTIAL licensee to obtain written
permission from the owner of the copyright to the original program if the
potential licensee intends to say "my falcon (a derivative work) past
Owner's test by 5 parsecs" if parsecs are not a standardized way to measure
whatever Owner's tools measure. Is this one way condition 3 might work? Is
the intent of condition 3 to retain for the original copyright holder some
degree of control over what licensees say about test results? If the answers
are yes, could you provide a specific example of what you are trying to
prevent when you say: "We just do not want users to fiddle with what is
already standardized and frozen." It may be easier to provide a suggestion
on how to fix your clause.

-Rod

Rod Dixon
Open Source Software Law
Blog: http://opensource.cyberspaces.org







----- Original Message ----- 
From: "Alex Rousskov" <rousskov@measurement-factory.com>
To: <license-discuss@opensource.org>
Sent: Tuesday, January 06, 2004 7:28 PM
Subject: For approval: Open Test License v1.1


: Dear all,
:
: Please discuss a license that we would like to use for at
: least one of our testing tools (http://www.web-polygraph.org/). Since
: there are many testing tools being developed, we tried to make a more
: general license template for others to enjoy and improve. The text of
: the license is at the end of this e-mail. The following sections are
: based on item #4 in the OSI approval instructions at
: http://www.opensource.org/docs/certification_mark.php#approval
:
:
: Comparison with existing licenses
: ---------------------------------
:
:     The first two conditions are taken from the BSD license.
:
:     The disclaimer is taken from the Apache license.
:
:     The third condition is specific to the problem domain and is the
:     primary reason for Open Test License existence. A test suite often
:     comes with "standard" workloads, tests, test collections, etc. For
:     example, SPEC has SPECWeb99, and Web Polygraph has PolyMix-4.
:     These standardized tests are used in the industry to optimize and
:     compare products. Users want to make statements like "my product
:     passes test Foo" or "my product is the fastest in its category
:     based on test Bar".
:
:     This creates an incentive for cheating among users/testers.
:     Cheating becomes much easier if the benchmark can be modified. On
:     the other hand, we want our users to be able to modify the
:     benchmark, including adding new tests. We just do not want users
:     to fiddle with what is already standardized and "frozen".
:
:     The third license clause attempts to make sure that, informally,
:
:     (a) users are careful about using well-known,
:     standardized test names when publishing test results
:
:     (b) users can publish benchmarking results and make
:     public statements without owner permission if they
:     follow standard test rules or use their own, custom,
:     test names (e.g., MySpookWeb2004, not SPECWeb99)
:
:     (c) cheating users that alter a standardized test to
:     mislead others and to "win" can be stopped and/or
:     punished
:
:     Open Group and Artistic licenses attempt to do similar things, but
:     are too specific (e.g., assuming a test is an "executable") and
:     are too complicated (and, hence, scarry) for non-lawyers. Thus,
:     we did not want to reuse those licenses but wanted to come up with
:     something much simpler, more general, and, hopefully, nearly as
:     effective.
:
:     Note that controlling standardized test usage via trademark law is
:     often not possible for entities that do not have resources to go
:     after each and every violation of the trademark usage rules.
:     Thus, for a popular test tool made by a small entity, the
:     trademark "power" may quickly be lost. On the other hand, a
:     license does not need to be always enforced to remain in force.
:
:
: Compatibility
: -------------
:
:     The license does not prohibit or restrict distribution of Open
:     Test software in conjunction with software distributed under
:     other licenses. The license does not seem to permit
:     relicensing OWNER's software under different terms. Thus, I am not
:     sure how to answer the "Which license do you think will take
:     precedence for derivative or combined works?" question in general,
:     other than saying that all licenses may apply. IANAL, so
:     if the above answer is not satisfactory, please guide me.
:
: Plain text version
: ------------------
:
:     Attached below.
:
:
:
: Please discuss.
:
: Thank you,
:
: Alex.
:
: -- 
: Protocol performance, functionality, and reliability testing.
: Tools, services, and know-how.
: http://www.measurement-factory.com/
:
:
: Open Test License
:
: Version 1.1
:
: Copyright (c) <YEAR>, <OWNER>
: All rights reserved.
:
: Redistribution and use of this software and documentation in any form,
: with or without modifications, are permitted provided that the
: following three conditions are met:
:
: 1. Redistributions of source code must retain the above copyright
:    notice, this list of conditions, and the following disclaimer.
:
: 2. Redistributions in other forms must reproduce the above
:    copyright notice, this list of conditions, and the following
:    disclaimer in the documentation and/or other materials
:    provided with the distribution.
:
: 3. Publication of results from standardized tests contained within
:    this software (<TESTNAME>, <TESTNAME>) must either strictly
:    adhere to the execution rules for such tests or be accompanied
:    by explicit prior written permission of <OWNER>.
:
: THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND,
: EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES
: OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
: NONINFRINGEMENT. IN NO EVENT SHALL THE COPYRIGHT OWNER OR
: CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL,
: SPECIAL, EXEMPLARY, OR CONSEQUENTIAL 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 THIS SOFTWARE, EVEN IF ADVISED OF THE
: POSSIBILITY OF SUCH DAMAGE.
: --
: license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

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