BOINC: lib/cal.h license issue agree with the DFSG?

[Sean Kellogg]

On Friday 01 January 2010 2:57:18 pm Francesco Poli wrote:
> > /* ============================================================
> > 
> > Copyright (c) 2007 Advanced Micro Devices, Inc.  All rights reserved.
> > 
> > Redistribution and use of this material is permitted under the following
> > conditions:
> 
> I cannot find any permission to modify or distribute modified versions
> of the file.
> This seems to fail DFSG#3.

What?! The grant is /right/ there... "Redistribution and use of this material is permitted" provided the following criteria are met, and then it lists the criteria. I suppose it could be its own little bullet point, but that sure seems explicit to me. That you failed to see that as a grant really calls into question the neutrality of the rest of your license evaluation.

> [...]
> > In no event shall anyone redistributing or accessing or using this
> > material
> > commence or participate in any arbitration or legal action relating to
> > this
> > material against Advanced Micro Devices, Inc. or any copyright holders
> > or
> > contributors. The foregoing shall survive any expiration or termination
> > of
> > this license or any agreement or access or use related to this material.
> 
> This takes away a right I would have in the absence of any license.
> That is to say, in order to get the permission to redistribute or use,
> I must surrender my right to commence or participate in any legal
> action related to this work.
> I see this as a fee required for getting the permission to
> redistribute: the presence of such a fee makes the work fail DFSG#1.

The GPL takes away all sorts of rights... this can't possible be what DFSG #1 is intended on prohibiting.

> [...]
> > THE
> > FOREGOING ARE ESSENTIAL TERMS OF THIS LICENSE AND, IF ANY OF THESE TERMS
> > ARE
> > CONSTRUED AS UNENFORCEABLE, FAIL IN ESSENTIAL PURPOSE, OR BECOME VOID OR
> > DETRIMENTAL TO ADVANCED MICRO DEVICES, INC. OR ANY COPYRIGHT HOLDERS OR
> > CONTRIBUTORS FOR ANY REASON, THEN ALL RIGHTS TO REDISTRIBUTE, ACCESS OR
> > USE
> > THIS MATERIAL SHALL TERMINATE IMMEDIATELY.
> 
> This is also worrisome, from my point of view.
> Typical limitation of liability clauses found in Free Software licenses
> say something to effect of "no liability, unless required by law or
> agreed to in writing".
> This clause, instead, seems to say that, if any limitation of liability
> is unenforceable, then, boom!, the whole grant of permission is void.
> This could discriminate against people living in jurisdictions where
> local law forbids too extreme limitations of liability.
> If this is the case, then it fails DFSG#5.

This continues to be a laughable argument. The GPL discriminates against countries who jail anyone who uses software licensed under the GPL. Is that discrimination?

> [...]
> > THIS MATERIAL MAY NOT BE USED, RELEASED, TRANSFERRED,
> > IMPORTED,
> > EXPORTED AND/OR RE-EXPORTED IN ANY MANNER PROHIBITED UNDER ANY
> > APPLICABLE LAWS,
> > INCLUDING U.S. EXPORT CONTROL LAWS REGARDING SPECIFICALLY DESIGNATED
> > PERSONS,
> > COUNTRIES AND NATIONALS OF COUNTRIES SUBJECT TO NATIONAL SECURITY
> > CONTROLS.
> 
> Enforcing export control laws (or other laws), through a copyright
> license is not a good thing to do, IMHO.
> I think that, if I violate some export control law, I should be
> prosecuted for breaching that law, without *also* having to face
> copyright violation suits.

Not saying I disagree, but your position on how export laws should be enforced really isn't at issue here. The problem AMD is addressing here is third party liability if someone where to violate US export laws. Is this clause really any different than "you aren't allowed to do anything illegal with this software?" And, if so, does the DFSG really prohibit a developer from proscribing the use in that manner and thus exposing the developer to a whole RANGE of contributory liability?

> [...]
> > This license forms the entire agreement regarding the subject matter
> > hereof and
> > supersedes all proposals and prior discussions and writings between the
> > parties
> > with respect thereto.
> 
> It really seems that no other grant of permission may be considered
> valid...

How do you reach that conclusion?!

> > This license does not affect any ownership,
> > rights, title,
> > or interest in, or relating to, this material.
> 
> I think that this means that, if I hold some right (e.g.: copyright)
> on a part of the work, then I am not constrained by the license, for
> that part of the work.
> This seems to be superfluous to say.

The license is just being very clear that the license in now way diminishes the ownership rights of AMD in the underlying code. Hardly superfluous if you are AMD.

> [...]
> > All disputes
> > arising out
> > of this license shall be subject to the jurisdiction of the federal and
> > state
> > courts in Austin, Texas, and all defenses are hereby waived concerning
> > personal
> > jurisdiction and venue of these courts.
> 
> This is a choice of venue clause.
> Choice of venue clauses are controversial and have been discussed to
> death in the past on debian-legal: my personal opinion is that they
> fail to meet the DFSG.

A fight that has been lost many times... choice of venue is fine.

-Sean

-- 
Sean Kellogg
e: skellogg at probonogeek.org
w: http://blog.probonogeek.org