Subject: Re: Approval request for BXAPL
From: "Abe Kornelis" <abe@bixoft.nl>
Date: Wed, 3 Jul 2002 21:11:13 +0200

----- Original Message ----- 
From: Nathan Kelley <phyax@runbox.com>
To: OSI License Discussion <license-discuss@opensource.org>
Cc: Abe Kornelis <abe@bixoft.nl>; Steve Lhomme <steve.lhomme@free.fr>
Sent: Wednesday, July 03, 2002 1:40 PM
Subject: Re: Approval request for BXAPL


> <Approval request snipped>

> I have read the Bixoft Public License (proposal version). I believe that 
> it is consistent with the Open Source Definition, and meets the 
> requirements for OSI certification.
> 
> However, I do have a few questions on it:
> 
> Item 10: The stated intention is to "denote software items that use the 
> Software, but that are not Derivatives of it". But do the provisions of 
> 10 achieve that? What modifications to the programming tools, as 
> stipulated in c), are sufficient to make the output a derived work?
--> Modifications to the Programming Tools will create a 
      Derived work, as dictated by Copyright Law.
      When I started out, no such thing as Dependent Software
      existed, neither in my mind nor anywhere else. In the 
      process of refining however, it dawned upon me, that 
      regarding any software made with a programming tool
      as a Derivative imposes unrealistic restrictions on the
      author of such 'derived' software. So I introduced the
      term 'Dependent Software' and tried to define it as
      software that makes use of the programming tools
      without modifying them. The distinction thus draws
      upon the Copyright Holder designating Programming
      Tools as such. I tried other approached for making
      the distinction but could not find anything that satisfied.
     So, as long as Dependent Software contains no
     Modifications to the Programming Tools in the 
     Software, it is just that; otherwise it becomes a 
     Derivative and must be subjected to the more
     stringent redistribution rules in the license.

> Item 16: I could be completely wrong here, but a) seems to effectively 
> create a situation where patent holders would pay others for use of 
> their own patents, while all third parties would be allowed to continue 
> infringement - with the only alternative being to withdraw the claim. Is 
> this correct? While I would love to see some large patent holders taken 
> down a peg or two, I believe this will be ruled unenforceable should it 
> ever get to court.
--> Steve already answered this one, but I'd like to add my tuppence:
      First: an infringement claim does not imply actual infringement
      until the court's decision has become irrevocable and 
      indisputable. Second: the claim for royalties is for the
      Software, whether infringing or not. The royalties are not
      for the patent, since the situation arises only when these
      are under dispute. It is mainly intended to prevent the 
      'Patent Holder' from raising a claim and at the same time
      using the Software without any retribution. If the Patent
      Holder wants to get something out of his/her patent,
      then he/she should also be willing to pay a fair amount
      for using the Software.
      Third: I did not make this up, I think I have been
      'inspired' by the CPL/IBMPL. I just hope they won't
      sue me for 'lending' from their work :-)

Kind Regards, Abe.


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