[Fedora-legal-list] Spread Open-Source License

[Richard Fontana]

On Sun, Mar 16, 2014 at 10:17:11AM -0400, Pamela Chestek wrote:
> Looks badgeware-ish to me, well beyond 4-clause BSD:
> 
> 4-clause BSD: 
> All advertising materials mentioning features or use of this software must
> display the following acknowledgement: This product includes software developed
> by the <organization>.
> 
> This license:
> All advertising materials (including web pages) mentioning features or use of
> this software, or software that uses this software, must display the following
> acknowledgment: "This product uses software developed by Spread Concepts LLC
> for use in the Spread toolkit. For more information about Spread see http://
> www.spread.org"
> 
> When "advertising," that is, calling out or promoting, "features or use" of a
> particular software that has the 4-clause BSD, there is some justification for
> also asking for attribution.  But this goes well beyond that principle both in
> the required statement ("for more information") and in situations where it
> applies, that is, on a webpage when you haven't even mentioned Spread anywhere
> in the body of the webpage because your software has simply used Spread but
> doesn't even mention, much less promote, it.
> 
> It isn't a requirement that a trademark be used, which is why I called it
> "badgeware-ish," but to the extent the 4-clause BSD is the upper limit on
> provisions like this that can be imposed and still considered free, this goes
> beyond it.

The addition of the "for more information" statement doesn't seem to
make it materially more restrictive, but the addition of "or software
that uses this software" is a key difference for me. It reminds me of
the quasi-copyleft requirement in the Sleepycat License
("Redistributions in any form must be accompanied by information on
how to obtain complete source code for the DB software and any
accompanying software that uses the DB software") (which is seen as
not only free but GPL-compatible). I interpret the "this software" in
the BSD advertising clause as meaning the advertising clause is
triggered only if the advertising materials specifically refer to the
software licensed under the license with the advertising clause by
name. That interpretation is not possible with the Spread.org
advertising clause.

While I'm inclined to think that true badgeware provisions that have
been treated as free ought to be reconsidered, I am not sure about
this condition. 

However, there is another problem with this license:

  YOU EXPRESSLY AGREE TO FOREVER INDEMNIFY, DEFEND AND HOLD HARMLESS
  THE COPYRIGHT HOLDERS AND CONTRIBUTORS OF SPREAD AGAINST ALL CLAIMS,
  DEMANDS, SUITS OR OTHER ACTIONS ARISING DIRECTLY OR INDIRECTLY FROM
  YOUR ACCEPTANCE AND USE OF SPREAD.

This is much broader than the upstream indemnification clauses I'm
aware of in accepted-FLOSS licenses. In the past I believe Fedora has
effectively rejected as nonfree licenses with similarly-broad
indemnification clauses.

When interpreting the atypical advertising and indemnification clauses
we should bear in mind that Spread Concepts LLC offers "additional
licensing options" aimed at commercial licensees.
http://www.spread.org/license/license.html (an external fact which, in
other situations in the past, I've argued calls for stricter
scrutiny).

This license may have first appeared in 2001 (the date given in the
license). This was *after* considerable attention had been placed on
the problems of the BSD advertising clause (famously leading to its
revocation by the UC Berkeley tech transfer office in 1998). Thus this
is different from, say, the OpenSSL license, where you have a kind of
fossilized BSD-style advertising clause. The Spread developers
deliberately put one of the more controversial kinds of free software
licensing conditions in a *new* license around the high point of
consciousness about the problems of the original advertising clause,
and they made it *more* restrictive. And they did so (we may infer)
for strategic reasons as a component of a proprietary licensing
business model.

All of the foregoing makes me think this license should be rejected as
nonfree. Terry: I would encourage you to contact Spread Concepts and
try to get them to relicense to the three-clause BSD license.

 - Richard












> 
> Pam Chestek
> 
> 
> On Sun, Mar 16, 2014 at 2:16 AM, Terry Moschou <tmoschou at gmail.com> wrote:
> 
>     Hello
> 
>     Are you able to approve the Spread Open-Source License
>     http://www.spread.org/license/license.html
> 
>     and subsequently update the Good (or Bad) Licenses Table at
>     https://fedoraproject.org/wiki/Licensing:Main#Software_License_List
> 
>     Cheers
>     Terry
> 
> 
>    
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