Subject: RE: FOR APPROVAL: OZPLB Licence
From: ian.oi@bdw.com
Date: Fri, 24 Dec 2004 13:55:39 +1100

BLAKE DAWSON WALDRON
Lawyers

Russell

Many thanks for your comments - it was good to get some feedback, even if it
seems rather hostile.

The confidentiality assertion was inadvertent but appears to have caused
offence. My apologies if that was the case. To avoid doubt, confidentiality
is of course not asserted in the email for approval to the license-approval
email list. In the spirit of the festive season, I hope you can forgive that
breach of Netiquette and do not let it colour your proper consideration of
the OZPLB. 

My responses to the substantive criticism made in your email below are
contained in [square brackets below]:

 >          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.

That is not a reason for you to publish your own license.  It is
simply an explanation of why you want to publish open source code.

[Agreed - the information in paragraph i. is not the reason in itself, but
provides background and context for this application and what follows in the
subsequent paragraphs ii, etc. Us Aussies don't necessarily expect Americans
to already know all about our local IT or legal environments. This context
gives some explanation why it is difficult for NICTA (as a body that
administers funds ultimately provided by our taxpayers and accountable to
Australian governments and reputable institutions) to just accept the risk
that the unavoidable form of disclaimer in existing OSI-approved licences is
potentially void (see below).]

 >          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.

Suck it up, mate!  Don't be such a whinger!  
For various and multiple
reasons, the C programming language (and its descendant C++) suck
goose eggs.  Any number of improvements have been proposed and
discarded; whole-cloth replacements have been created and disused.
Why?  Because there is a huge value in standardization.  If everybody
uses the same programming language, code can be reused between
projects.  Knowledge of how to program in the language can be reused.
The flaws become well-understood (e.g. buffer overruns) and with care
can be avoided.

Similarly, you can point at all the standard licenses (BSD, GPL, LGPL)
and find flaws in them.  For you, it's the disclaimer.  For other
people it's the presence of any disclaimer at all.  And yet most
projects are licensed under one of these three licenses, and good it
is too.

[Unfortunately, the disclaimer issue is more than just a minor "whinge" for
us in Australia - there is a fundamental issue of whether the whole
disclaimer (and potentially the  whole licence in which the disclaimer is
contained) is void under Australian law and therefore unenforceable here.
Under section 68(1) of the Australian Trade Practices Act, disclaimer
wording inconsistent with that Act's provisions is totally void. The
dislaimer can be "saved" from being void if it contains wording consistent
with section 68A of the Act is included. Hence, the additional drafting
included here. You cannot exclude the effect of these sections in Australia.

There is also potential for an even more fundamental flow-on problem. If the
void disclaimer cannot be severed from the licence, the whole licence might
itself be void. In a BSD-style licence, at least, this could occur if the
disclaimer is interpreted as so integral to the licence that it cannot be
severed without altering the fundamental character of the licensing
transaction.

So, in this case, "the flaw" is not one that "with care" can be avoided when
using an OSI-approved BSD-style licence. Whilst we have not checked the
specific wording of every other OSI-approved licence, I would be surprised
if any of them already contains section 68A-compliant wording - please let
me know if there is one. Certainly, none of the OSI-approved BSD/BSD-style
licence wordings, or the GPL and LGPL licence wordings, meet this need, and
neither do other well-known US-centric licences. 

In other words, we are not aware of any other OSI-approved licence we could
use "with care" to avoid having an unenforceable BSD-style licence. 

We had assumed, rightly or wrongly, that legal issues that touch on the
enforceability of the licence (where that issue is not already dealt with in
an existing licence) would be a major enough issue to warrant a submission
of our licence for OSI approval. If we were wrong in this assumption, we
would be pleased if the Approval Committee could let us know so that we can
consider whether to discontinue or change our application for OSI approval.]


 >          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. 

Okay, but what happens when a use of the license specifies that it's
governed by the laws of Outer Bumkiss, Australia.

Better to say: "If the laws of Australia apply to you, you must abide
by the terms of the following license.  If not, you must abide by the
terms of the BSD License; see attachment A."

[I will need to get instructions from NICTA, but it seems like a good idea
in principle. It would also align with our shared concern with you to not
detract from OSD-compliant licence standardization, to the extent possible.
We might need to tweak it abit to fit in with our legal system, but that
kind of dual BSD-style licensing would work here as well. As a drafting
issue, we would particularly have to think about how we draft the nexus with
Australia.] 

That would let contributors who aren't in Australia combine the
software with BSD-licensed code in such a way that only Australians
are affected.  It's an inheritive license, but it's at least one that
doesn't proliferate licenses for anybody but Australians.  Australians
would be affected by the bare BSD anyway because the terms that are
added are terms of art in Australia (presuming all the time that your
assertions about Australian law are correct; I wouldn't presume
otherwise.)

[I will forward this email to other Australian IT lawyers working in this
field to solicit their input/contribution, so that you do not have to take
my word for it. In the meantime, if you want to know more about the
Australian disclaimer issue in the Australian open source context, have a
look at http://www.law.qut.edu.au/files/open_source_book.pdf at pages 76-80
(this is an article by another Australian IT lawyer, Peter James - Peter is
at one of my firm's competitors and wrote his paper quite independently).] 

 > NOTICE
 > This email and any attachments are confidential.

No, it's not.  You gave up any right to confidentiality when you sent
it to a public mailing list.  You can't both publish something and
successfully claim that it is confidential at the same time.

 > This notice should not be removed.

I removed it.  Deal.

[Please see my comments at the beginning of this email, confirming that
confidentiality is not asserted in this content.]

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

In summary, I look forward to any other constructive comments on the OZPLB
application and hope that we can address any other concerns you might have. 

Happy holidays (as you Yanks would have it)
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

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please ignore it - our firm's email system automatically adds a footer on
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