Subject: FOR APPROVAL: OZPLB Licence
From: ian.oi@bdw.com
Date: Fri, 22 Oct 2004 11:07:16 +1000

BLAKE DAWSON WALDRON
Lawyers
Confidential (see notice below)

This email is a submission made on behalf of National ICT Australia Limited
(NICTA) [see http://nicta.com.au] for OSI certification of the Australian
Public Licence B (OZPLB). The following sections of this email are
structured so as to follow the requirements of OSI Certification Process
Step 4. 

4.a.  Tell us which existing OSI-approved licence is most similar to your
licence. Explain why that licence will not suffice for your needs. If your
proposed licence is derived from a licence we have already approved,
describe exactly what you have changed. This document is not part of the
licence; it is solely to help the license-discuss understand and review your
licence.

         The OSI-approved licence most similar to OZPLB is the University of
Illinois/NCSA Open Source License, which is itself very similar to the BSD
License (the "B" in the name of the licence is intended to signify that it
is a BSD-variant).  The OZPLB also includes additional liability limitation
and governing law wording consistent with wording in other OSI-certified
licences such as the MPL. None of the pre-existing OSI-certified licences
suffices for purposes of NICTA, on their own or combined together, for the
following reasons:

         i.  NICTA was formed by the Australian Government's Department of
Communications, Information Technology and the Arts and the Australian
Research Council, with consortium partners that include the Australian
Capital Territory Government, the New South Wales Government, the University
of New South Wales, and the Australian National University. NICTA's mission
is to be an enduring world-class research institute in Information and
Communications Technology that generates national wealth. As such, one of
NICTA's objectives (and needs) is to participate in the global open source
software (OSS) community whilst, at the same time, taking full advantage of
the available legal frameworks.

         ii.  NICTA is generating OSS outputs that require BSD-style
licenced distribution both within Australia and internationally. However,
whilst the existing OSI-certified BSD variants (including the BSD License)
may be sufficient to meet US legal requirements, they do not maximise the
legal protection for OSS outputs generated in and distributed from
Australia. First, there are aspects of Australian law that are not expressly
dealt within the existing OSI-certified BSD variants, giving rise to the
possibility that the broad "spirit" of BSD-style licensing is not
implemented because of the restrictive "letter" of the licence itself.
Secondly, there are strong arguments that the liability exclusion in the
existing OSI-certified BSD variants do not satisfy non-excludable
requirements of the Australian Trade Practices Act 1974, thereby rendering
those liability exclusion requirements void. 

         iii.  The OZPLB addresses both the above deficiencies, in a way
that is consistent with the University of Illinois/NCSA Open Source License.
A HTML formatted mark-up of the OZPLB showing all resulting changes from the
University of Illinois/NCSA Open Source License is contained at
http://nicta.com.au/ozplb_diff.cfm. In summary, the changes are to: 

                    (A) expressly license the rights to adapt and
communicate to the public, and to lend or rent out copies of the Software
(1st paragraph);

                    (B) more fully detail the liability exclusion provisions
(consistent with the MPL, Intel Open Source License and other OSI-certified
licences) but ensuring that the provisions do not purport to exclude
non-excludable laws such as the Australian Trade Practices Act 1974 (the two
paragraphs immediately after the bullet points);

                    (C) include a form of liability limitation that is
enforceable under the Australian Trade Practices Act 1974 (second last
paragraph); and

                    (D) include a "governing law" clause, consistent with
those included in other OSI-certified licences such as the MPL (last
paragraph).

         iv.  NICTA's intention is to permit the OZPLB to be adopted by
other entities who wish to distribute OSS in similar circumstances. This
intention is consistent with NICTA's mission and objectives as described
above. OSI certification of the OZPLB will assist in promoting the OZPLB for
this purpose. 

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

         Software distributed under the OZPLB can be used in the same way as
other software distributed under the University of Illinois/NCSA Open Source
License, including in relation to derivative or combined works. OZPLB has
the same licence precedence and compatibility characteristics as the
University of Illinois/NCSA Open Source License. 

4.c.  Include the plain text version of your licence at the end of the
email, either as an insertion or as an attachment.

         A plain text version of the OZPLB is provided below.

Furthermore, pursuant to OSI Certification Process Step 2., the web site
http://nicta.com.au/ozplb.cfm contains an HTML formatted version of the
OZPLB  at http://nicta.com.au/ozplb_licence.cfm.

NICTA would be pleased if you would consider the OZPLB for OSI
certification. Please address any queries or comments to me via my contact
details as set out below. 

Regards

Ian Oi
Special Counsel
Blake Dawson Waldron

Tel: + 61 2 6234 4061
Fax: + 61 2 6234 4111
ian.oi@bdw.com
www.bdw.com



12 Moore Street Canberra ACT 2601 Australia
DX 5680 Canberra

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

[START OF OZPLB TEXT]



Australian Public Licence B (OZPLB)

Version 1-0



Copyright (c) <Year> <Owner Organization Name>



All rights reserved.



Developed by:	<Name of Development Group>

<Name of Institution>

<URL for Development Group/Institution>



Permission is granted by <Name of Institution>, free of charge, to any
person obtaining a copy of this software and any associated documentation
files (the "Software") to deal with the Software without restriction,
including (without limitation) the rights to use, copy, modify, adapt,
merge, publish, distribute, communicate to the public, sublicense, and/or
sell, lend or rent out copies of the Software, and to permit persons to whom
the Software is furnished to do so, subject to the following conditions:

Redistributions of source code must retain the above copyright notice, this
list of conditions and the following disclaimers. 

Redistributions in binary form must reproduce the above copyright notice,
this list of conditions and the following disclaimers in the documentation
and/or other materials provided with the distribution. 

Neither the name of <Name of Institution>, nor the names of its
contributors, may be used to endorse or promote products derived from this
Software without specific prior written permission. 

EXCEPT AS EXPRESSLY STATED IN THIS LICENCE AND TO THE FULL EXTENT PERMITTED
BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED "AS-IS", AND <Name of
Institution> AND ITS CONTRIBUTORS MAKE NO REPRESENTATIONS, WARRANTIES OR
CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
REPRESENTATIONS, WARRANTIES OR CONDITIONS REGARDING THE CONTENTS OR ACCURACY
OF THE SOFTWARE, OR OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE,  NONINFRINGEMENT, THE ABSENCE OF LATENT OR OTHER DEFECTS, OR THE
PRESENCE OR ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE.



TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL <Name of
Institution> OR ITS CONTRIBUTORS BE LIABLE ON ANY LEGAL THEORY (INCLUDING,
WITHOUT LIMITATION, IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHERWISE) FOR
ANY CLAIM, LOSS, DAMAGES OR OTHER LIABILITY, INCLUDING (WITHOUT LIMITATION)
LOSS OF PRODUCTION OR OPERATION TIME, LOSS, DAMAGE OR CORRUPTION OF DATA OR
RECORDS; OR LOSS OF ANTICIPATED SAVINGS, OPPORTUNITY, REVENUE, PROFIT OR
GOODWILL, OR OTHER ECONOMIC LOSS; OR ANY SPECIAL, INCIDENTAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN
CONNECTION WITH THIS LICENCE, THE SOFTWARE OR THE USE OF OR OTHER DEALINGS
WITH THE SOFTWARE, EVEN IF <Name of Institution> OR ITS CONTRIBUTORS HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, LOSS, DAMAGES OR OTHER
LIABILITY. 

If applicable legislation implies representations, warranties, or
conditions, or imposes obligations or liability on <Name of Institution> or
one of its contributors in respect of the Software that cannot be wholly or
partly excluded, restricted or modified, the liability of <Name of
Institution> or the contributor is limited, to the full extent permitted by
the applicable legislation, at its option, to:

a.  in the case of goods, any one or more of the following:

i.  the replacement of the goods or the supply of equivalent goods;

ii.  the repair of the goods;

iii. the payment of the cost of replacing the goods or of acquiring
equivalent goods;

iv.  the payment of the cost of having the goods repaired; or

b.  in the case of services:

i.  the supplying of the services again; or 

ii.  the payment of the cost of having the services supplied again.



The construction, validity and performance of this licence is governed by
the laws in force in <Insert applicable jurisdiction, eg: New South Wales,
Australia>.

[END OF OZPLB TEXT]





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