Subject: FOR APPROVAL: ANONYMOUS.1 License
From: Russell Nelson <nelson@crynwr.com>
Date: Tue, 3 Jun 2003 22:25:39 -0400

 Tue, 3 Jun 2003 22:25:39 -0400
We'd like to submit The [ANONYMOUS.1] License for review and approval.  

Our open source planning is a highly sensitive matter for us, given 
existing customer relationships, so we'd appreciate that the 
confidential treatment contemplated by the approval process.
Thanks in advance for your attention and assistance.

***********************************************

	In effect, [ANONYMOUS.1] is a more elaborated version of the Sleepycat 
license, similar to Mozilla in terms of the degree of contractual 
formality, while reflecting the same underlying objectives of the 
Sleepycat license.  Our intent is to extend open source use and 
distribution rights to all users of the [ANONYMOUS.1] code base making 
their respective offerings available in open source form as well.  We 
have created The [ANONYMOUS.1] License, rather than using the Sleepycat 
license, because we feel we need a more legally precise and "airtight" 
contract (like Mozilla) than the Sleepycat form offers.

	We will be open sourcing core product code to create (1) a commmunity, 
(2) a better product and (3) as many third-party service offerings as 
possible.  We want to make sure that these objectives are clearly 
protected by a license form that will be legally enforceable in 
accordance with its terms.  We suspect that BSD-derived licenses, such 
as Sleepycat, could be subject to varying interpretations in an 
enforcement action, and note that judicial precedent for the intended 
"free & open" interpretation is limited.  We feel that a more formal 
contractual representation is required.

	For example, nothing in the Sleepycat license (or any other form of 
which we are aware) explicity proscribes a "sham" services offering, in 
which a proprietary software vendor would make a commercial 
redistribution of open source with no value is added except the use of 
its brand.  This would clearly fall outside the mission of the open 
source movement, yet the proprietary vendor could argue that it was 
simply charging a distribution or services fee (rather than a license 
royalty), in compliance with established open source principles.  
Litigation would be required to determine whether service charges must 
be reasonably proportional to the value created (which may or may not be 
the case, absent specific license provisions), which would be costly and 
would favor the larger vendor.

	To give another example, the clear intent of the BSD-derived licenses 
is that license restrictions apply "iteratively" to successive 
downstream distributees.  The precise mechanics of how restrictions flow 
through a series of downstream distributions are somewhat unclear, and 
lack of judicial precedent for the desired interpretation could be 
problematic in a compliance action.

	The [ANONYMOUS.1] License attempts to address some of these 
ambiguities.

//Explain how software distributed under your license can be used in 
conjunction with software distributed under other open source licenses. 
Which license do you think will take precedence for derivative or 
combined works? Is there any software license that is entirely 
incompatible with your proposed license?//

	In general, downstream distributions (and combined distributions) under 
licenses that (a) respect third-party intellectual property rights and 
(b) provide "copyleft" protections (the GPL or Sleepycat, for example) 
would suffice.  The [ANONYMOUS.1] License specifically provides that 
source code may be redistributed under another form offering comparable 
protections.  However, to the extent that The [ANONYMOUS.1] License is 
judged to provide better (or more clearly enforceable) protections than 
other such licenses, we would hope that it receives wider community 
adoption.

	Redistribution (or combined redistribution) under licenses that do not 
impose downstream copyleft, such as the LGPL, would be problematic under 
The [ANONYMOUS.1] License.

-- begin license

THE [ANONYMOUS.1] OPEN LICENSE 1.0

This License Agreement, The [ANONYMOUS.1] Open License 1.0, has been
entered into between The [ANONYMOUS.1] Company and you, the licensee
hereunder, effective as of Your acceptance of the [ANONYMOUS.1] Code
Base or an Downstream Distribution (each as defined below).

AGREEMENT BACKGROUND

The [ANONYMOUS.1] Company is committed to the belief that "open
source" software results in better quality, greater technical and
product innovation in the market place and a more empowered and
productive developer and end-user community.  Our objective is to
ensure that the [ANONYMOUS.1] Code Base, and the source code for
improvements and innovations to it, remain free and open to the
community.  To further these beliefs and objectives, we are
distributing the [ANONYMOUS.1] Code Base, without royalties and in
source code form, to the community pursuant to this License Agreement.

AGREEMENT TERMS

The [ANONYMOUS.1] Company and You have agreed as follows:

1.  Definitions.  The following terms have the following respective meanings:

(a) "[ANONYMOUS.1] Code Base" means the software developed by The
[ANONYMOUS.1] Company and made available under this License Agreement

(b) "Downstream Distribution" means any direct or indirect release,
distribution or remote availability of software (i) that directly or
indirectly contains, or depends for its intended functioning on, the
[ANONYMOUS.1] Code Base or any portion or element thereof and (ii) in
which rights to use and distribute such [ANONYMOUS.1] Code Base
software depend, directly or indirectly, on the License provided in
Section 2 below.

(c) "Source Code" to any software means the preferred form for making
modifications to that software, including any associated
documentation, interface definition files and compilation or
installation scripts, or any version thereof that has been compressed
or archived, and can be reconstituted, using an appropriate and
generally available archival or compression technology.

(d) "Value-Added Services" means any commercial or fee-based
software-related service, including without limitation: system or
application development or consulting; technical or end-user support
or training; distribution maintenance, configuration or versioning; or
outsourced, hosted or network-based application services.

2.  License Grant.  Subject to the terms and conditions hereof, The
[ANONYMOUS.1] Company hereby grants You a non-exclusive license (the
"License"), subject to third party intellectual property claims, and
for no fee other than a nominal charge reflecting the costs of
physical distribution, to:

(a) use the [ANONYMOUS.1] Code Base, in either Source Code or
machine-readable form;

(b) make modifications, additions and deletions to the content or
structure of the [ANONYMOUS.1] Code Base; or

(c) create larger works or derivative works including the
[ANONYMOUS.1] Code Base or any portion or element thereof; and

(d) release, distribute or make available, either generally or to any
specific third-party, any of the foregoing in Source Code or binary
form.

3.  License Conditions.  The grant of the License under Section 1
hereof, and your exercise of all rights in connection with this
License Agreement, will remain subject to the following terms and
conditions, as well as to the other provisions hereof:

(a) Complete Source Code for any Downstream Distribution directly or
indirectly made by You that contains, or depends for its intended
functionality on, the [ANONYMOUS.1] Code Base, or any portion or
element thereof, shall be made freely available to all users thereof
on terms and conditions no more restrictive, and no less favorable for
any user (including, without limitation, with regard to Source Code
availability and royalty-free use) than those terms and conditions
provided in this License Agreement.

(b) Any Value-Added Services that you offer or provide, directly or
indirectly, in relation to any Downstream Distribution shall be
offered and provided on commercial terms that are reasonably
commensurate to the fair market value of such Value-Added Services.
In addition, the terms and conditions on which any such Value Added
Services are so offered or provided shall be consistent with, and
shall fully support, the intent and purpose of this License Agreement.

(c)	All Downstream Distributions shall:

(i) include all portions and elements of the [ANONYMOUS.1] Code Base
required to "build" the Source Code of such Downstream Distribution
into a fully functional "machine-executable" system, or additional
"build scripts" or comparable software necessary and sufficient for
such purposes;

(ii) include, in each file containing any portion or element of the
[ANONYMOUS.1] Code Base, the following identifying legend: "This file
contains software that has been made available under The [ANONYMOUS.1]
Open License 1.0.  Use and distribution hereof are subject to the
restrictions set forth therein."

(iii) include all other copyright notices, authorship credits,
warranty disclaimers (including that provided in Section 6 below),
legends, documentation, annotations and comments contained in the
[ANONYMOUS.1] Code Base as provided to You hereunder;

(iv) contain an unaltered copy of the html file named
"[ANONYMOUS.1] community invitation.html" included within the
[ANONYMOUS.1] Code Base that acknowledges new users and provides them
with information on the [ANONYMOUS.1] Code Base community;

(v) contain an unaltered copy of the text file named
"the [ANONYMOUS.1] license.txt" included within the [ANONYMOUS.1] Code
Base that includes a text copy of the form of this License Agreement;
and

(vi) prominently display to any viewer or user of the Source Code of
such Open Downstream Distribution, in the place and manner normally
used for such displays, the following legend:

"Source code licensed under from The [ANONYMOUS.1] Company is
contained herein, and such source code has been obtained either under
The [ANONYMOUS.1] Open License, or another license granted by The
[ANONYMOUS.1] Company.  Use and distribution hereof is subject to the
restrictions provided in the relevant such license and to the
copyrights of the licensor thereunder.  A copy of The [ANONYMOUS.1]
Open License is provided in a file named
"the [ANONYMOUS.1] license.txt" and included herein, and may also be
available for inspection at http://www.[ANONYMOUS.1].com."

4.  Restrictions on Open Downstream Distributions.  Each Downstream
Distribution made by You, and by any party directly or indirectly
obtaining rights to the [ANONYMOUS.1] Code Base through You, shall be
made subject to a license grant or agreement to the extent necessary
so that each distributee under that Downstream Distribution will be
subject to the same restrictions on re- distribution and use as are
binding on You hereunder.  You may satisfy this licensing requirement
either by:

(a) requiring as a condition to any Downstream Distribution made by
you, or by any direct or indirect distributee of Your Downstream
Distribution (or any portion or element thereof), that each
distributee under the relevant Downstream Distribution obtain a direct
license (on the same terms and conditions as those in this License
Agreement) from The [ANONYMOUS.1] Company; or

(b) sub-licensing all (and not less than all) of Your rights and
obligations hereunder to that distributee, including (without
limitation) Your obligation to require distributees to be bound by
license restrictions as contemplated by this Section 4 above.  The
[ANONYMOUS.1] Company hereby grants to you all rights to sub-license
your rights hereunder as necessary to fully effect the intent and
purpose of this Section 4 above, provided, however, that your rights
and obligations hereunder shall be unaffected by any such
sublicensing.  In addition, The [ANONYMOUS.1] Company expressly
retains all rights to take all appropriate action (including legal
action) against any such direct or indirect sub-licensee to ensure its
full compliance with the intent and purposes of this License
Agreement.

5.  Intellectual Property.  Except as expressly provided herein, this
License Agreement preserves and respects Your and The [ANONYMOUS.1]
Company's respective intellectual property rights, including, in the
case of The [ANONYMOUS.1] Company, its copyrights and patent rights
relating to the [ANONYMOUS.1] Code Base.

6.  Warranty Disclaimer.  THE SOFTWARE LICENSED HEREUNDER IS PROVIDED
``AS IS.''  ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON- INFRINGEMENT, ARE HEREBY DISCLAIMED. IN
NO EVENT SHALL THE LICENSOR OF THIS SOFTWARE, 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.

7.  License Violation.  The License, and all of your rights
thereunder, shall be deemed automatically terminated and void as of
any Downstream Distribution directly or indirectly made or facilitated
by You that violates the provisions of this License Agreement,
provided, however, that this License Agreement shall survive any such
termination in order to remedy the effects of such violation.  This
License Agreement shall be binding on the legal successors and assigns
of the parties hereto.  Your agreement to the foregoing as of the date
hereof has been evidenced by your acceptance of the relevant software
distribution hereunder.
 THE [ANONYMOUS.1] COMPANY 2003

-- end license
--
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