[Pkg-pascal-devel] Please confirm non-distributability of Novell SDK material

Sun Apr 20 15:57:55 UTC 2014

Dear FPC core team,

Please find below a discussion about a licence issue found during review
of FPC 2.6.4 packaging. The complete discussion could be followed on [1]
and/or [2].

Can you please advice about this and especially about [3].

Cheers,
Abou Al Montacir,

[1]
http://lists.alioth.debian.org/pipermail/pkg-pascal-devel/Week-of-Mon-20140414/000174.html
[2] https://lists.debian.org/debian-legal/2014/04/msg00017.html
[3] https://lists.debian.org/debian-legal/2014/04/msg00022.html

On Sat, 2014-04-19 at 09:52 +0200, Paul Gevers wrote:
> Hi Debian-legal readers [Please CC the Pascal list on reply]
> 
> I believe that I (well Lintian to be honest) found a file [1] in fpc
> that is not distributable. The license of the SDK follows at the end of
> this e-mail. The sentence that I found most problematic is the following:
> """Novell grants You the non-exclusive, non-transferable right to: a)
> internally use the Early Access Release Materials and Internal Tools in
> support of Your efforts to develop Derivative Software hereunder (but
> You may not include any portion of Early Access Release Materials or
> Internal Tools in Derivative Software); b) use, modify, and compile
> source code Software for the purpose of creating Developer Products, if
> the source code Software is identified as licensed for use in creating
> Developer Products; and, c) reproduce and distribute Derivative Software
> as part of a Developer Product."""
> 
> If I understand it right, a is not applicable to the file in question as
> distribution is not "internally use". B is not applicable as the file in
> question is not "source code Software" and use, modify and compile does
> not mean distribution. C is not applicable as it only allows derivative
> software (which in their definition is binary) to be distributed, not
> the SDK files themselves. Additionally the license is non-transferable,
> which makes it unsuitable for Debian (and the file lacks source, that is
> an other Debian problem).
> 
> Paul
> [1] fpcsrc/rtl/netwlibc/pre/libcpre.gcc.o
> 
> Full license:
> #############
> Novell Developer License Agreement
> 
> 1. PURPOSE. Novell makes available the Novell developer software and
> documentation (the "Software") under the terms of this Novell Developer
> License Agreement.  If You do not agree to these terms, You may not
> access or use the Software.
> 
> 2. DEFINITIONS. The following terms have the meanings assigned to them
> below:
> 
>    "Derivative Software" means the Binary code Software and/or Binary
> code that results from your compilation of modified or unmodified source
> code Software. Derivative Software may not include Early Access Release
> Materials or Internal Tools.
> 
>    "Developer Product" means Your own computer product that incorporates
> Derivative Software and does not substantially duplicate the
> capabilities or compete with the Derivative Software or the Software.
> 
>    "Early Access Release Materials" means Software and/or Documentation
> Novell identifies as "beta", "pre-release," "futures," or as an "early
> access release."
> 
>    "Internal Tools" means compatibility criteria, test suites, test
> tools, end user products, and other programs designed to aid in the
> development of, but not be incorporated in, Derivative Software Products.
> 
> 3. LICENSES. Use of the Software and Documentation is subject to the
> restrictions contained in this Agreement. The Software contains various
> software programs with different license rights. Novell grants You the
> non-exclusive, non-transferable right to: a) internally use the Early
> Access Release Materials and Internal Tools in support of Your efforts
> to develop Derivative Software hereunder (but You may not include any
> portion of Early Access Release Materials or Internal Tools in
> Derivative Software); b) use, modify, and compile source code Software
> for the purpose of creating Developer Products, if the source code
> Software is identified as licensed for use in creating Developer
> Products; and, c) reproduce and distribute Derivative Software as part
> of a Developer Product.
> 
>    Sample Source Code. Sample source code that is made available as part
> of the Software may include a license grant that is broader then the
> license granted above in 3. If so, Your license to use the sample source
> code is as described in the license language included with the sample
> source code.
> 
>    Open Source Software. Your license to use software that is provided
> subject to a separate open source license is described in and subject to
> the license agreement included with the software.
> 
>    Third Party Products. As a service to You, certain third party
> software products may be made available to You from Novell. Your license
> to use such products is as described in and subject to the license
> agreement provided by the third party.
> 
> 4. RESTRICTED SOFTWARE. Notwithstanding anything to the contrary in this
> Agreement, portions of the Software and/or Documentation may be subject
> to restrictions set forth in terms that accompany those portions. You
> agree to abide by such restrictions. If such restrictions are
> unacceptable to You, You may not use the Software.
> 
> 5. RESERVATION OF RIGHTS. Novell reserves all rights not expressly
> granted to You. Without limiting the generality of the foregoing You: a)
> acknowledge that the source code of the binary code Software represents
> and embodies trade secrets of Novell or its licensors (except for source
> code made publicly available by the licensor); b) agree not to
> disassemble, decompile, or otherwise reverse engineer the binary code
> Software to discover the source code and/or trade secrets embodied in
> the source code; c) acknowledge that Novell has not authorized You to
> rent, lease, and/or time share the Software; and, d) while certain test
> tools and test suites may be provided, YOU AGREE THAT ONLY NOVELL CAN
> ISSUE AND PUBLISH TEST BULLETINS OR AUTHORIZE USE OF THE "YES" OR OTHER
> NOVELL LOGOS.
> 
> 6. EARLY ACCESS MATERIALS. Novell does not represent or warrant that it
> will make the Early Access Materials generally available to the public
> or that any target dates will be met. Novell may change or cancel its
> plans at any time. You acknowledge that any Early Access Release product
> is of pre-release quality, has not been fully tested, and may contain
> errors; You assume the entire risk arising out of the use of the Early
> Access Release Software and any information provided with the Early
> Access Release Software.
> 
> 7. SUPPORT. Novell shall have no obligation to provide support to You or
> to users of Developer Product(s).
> 
> 8. TERM AND TERMINATION. This License will become effective on the date
> you acquire the Software and will remain in force until terminated. You
> may terminate this License at any time by destroying the Documentation
> and the Software together with all copies and adaptations. This License
> shall also automatically terminate if you breach any of the terms or
> conditions. You agree to destroy the original and all adaptations or
> copies of the Software and Documentation, or to return them to Novell
> upon termination of this License. Your right to use any Early Access
> Release Software will terminate upon the earlier of (i) first commercial
> shipment by Novell of the Early Access Release product, (ii) other
> termination of this Agreement, or (iii) time-based or other disabling of
> the Early Access Release product. Upon termination of this Agreement,
> end users of the Developer Product may continue to use the Developer
> Product under the terms of their license from You. You will have the
> right to maintain one copy of each version of the source code Software
> and/or the Developer Product but only for the purpose and to the extent
> reasonably necessary for you to provide support and maintenance to end
> users.
> 
> 9. DEVELOPER INDEMNIFICATION. You agree to indemnify, defend and hold
> Novell harmless from all damages, liabilities and expenses incurred by
> Novell as a result of any claim, or judgment against Novell by any third
> party arising out of, or connected in any manner with, distribution or
> use of software created by You through the use of Software licensed to
> You under this Agreement or arising out of breach of this Agreement. If
> Novell receives notice of such a claim, Novell will promptly notify You
> in writing and allow You sole control of the defense of any such claim
> or action and all negotiations for its settlement and compromise,
> provided You give adequate assurances that You will diligently pursue
> resolution of the claim.
> 
> 10.GOVERNING LAW. Except as otherwise restricted by law, this License
> shall be governed by, and interpreted in accordance with, the laws of
> the State of Utah of the United States of America, without regard to
> Utah law governing conflicts of law. This Agreement shall be treated as
> though it were executed in Utah County, Utah.  Any action relating to
> this License agreement shall be brought in a Utah court of competent
> jurisdiction.
> 
> 11.ENTIRE AGREEMENT. This Agreement sets forth the entire understanding
> and License between you and Novell and may be amended only in a writing
> signed by both parties. No vendor, distributor, dealer, retailer, sales
> person or other person is authorized to modify this license or to make
> any warranty, representation or promise which is different than, or in
> addition to, the representations or promises of this license. This
> Agreement is not assignable by you in whole or in part without Novell’s
> prior written approval.
> 
> 12.SEVERABILITY / WAIVER. If a provision is invalid or unenforceable,
> the remaining provisions will remain in effect and the parties will
> amend the Agreement to reflect the original agreement to the maximum
> extent possible. No waiver of any contractual right will be effective
> unless in writing by an authorized representative of the waiving party.
> No waiver of a right arising from any breach or failure to perform will
> be deemed a waiver of any future right.
> 
> 13.DISCLAIMER. EXCEPT AS OTHERWISE RESTRICTED BY LAW, THE SOFTWARE AND
> ANY ASSOCIATED SERVICES ARE PROVIDED "AS IS." NOVELL MAKES NO  WARRANTY,
> REPRESENTATION OR PROMISE. NOVELL DISCLAIMS AND EXCLUDES ANY AND ALL
> IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR
> PURPOSE OR NON-INFRINGEMENT. NOVELL DOES NOT WARRANT THAT THE SOFTWARE
> WILL SATISFY YOUR REQUIREMENTS OR THAT THE SOFTWARE IS WITHOUT DEFECT OR
> ERROR OR THAT ITS OPERATION WILL BE UNINTERRUPTED. Some states do not
> allow some limitations on implied warranties, so the above limitations
> may not fully apply to you. This warranty gives you specific legal
> rights which vary from state to state.
> 
> 14.LIMITATION OF LIABILITY. NEITHER NOVELL NOR ANY OF ITS LICENSORS,
> EMPLOYEES, OR AGENTS SHALL IN ANY CASE BE LIABLE FOR ANY SPECIAL,
> INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS OR REVENUE, LOSS OF
> USE OF SOFTWARE, LOSS OF DATA, COSTS OF RE-CREATING LOST DATA, OR THE
> COST OF ANY SUBSTITUTE EQUIPMENT OR PROGRAM), INDIRECT OR PUNITIVE
> DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. EXCEPT AS
> OTHERWISE RESTRICTED BY LAW, NOVELL'S AGGREGATE LIABILITY ARISING FROM
> OR RELATING TO YOUR USE OF THE SOFTWARE  OR ANY ASSOCIATED SERVICES IS
> LIMITED TO THE GREATER OF $100 OR THE TOTAL OF PAYMENTS MADE FOR SUCH
> SERVICES. Some states do not allow the complete exclusion or limitation
> of incidental or consequential damages, so the above limitation or
> exclusion may not fully apply to you.
> 
> 15.EXPORT. You may not export, re-export, or use the Software in
> violation of any applicable laws or regulations including, without
> limitation, U.S. export regulations or the laws of the country in which
> you reside.  U.S. GOVERNMENT RESTRICTED RIGHTS. Use, duplication, or
> disclosure by the United States Government is subject to restrictions as
> set forth in FAR s 52.227-14 (June 1987) Alternate III(g)(3) (June
> 1987), FAR s 52.227-19 (June 1987), or DFARS s 52.227-7013 (c)(1)(ii)
> (June 1988), as applicable. Contractor/Manufacturer is Novell, Inc.,
> 1800 S.  Novell Place, Provo, Utah 84606. OTHER. Those terms which by
> their nature extend beyond termination of this Agreement shall survive
> and remain in effect until all obligations are satisfied. The
> application of the United Nations Convention of Contracts for the
> International Sale of Goods is expressly excluded.
> 
> Copyright Novell, Inc., 9/22/2004
> 
> September 22, 2004
> 
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