this provision is supposed to apply only to the original upstream licensor

this provision is supposed to apply only to the original upstream licensor

Posted Feb 26, 2013 15:42 UTC (Tue) by rfontana (subscriber, #52677)
In reply to: this provision is supposed to apply only to the original upstream licensor by Wol
Parent article: FOSDEM: Richard Fontana on copyleft-next

You can NEVER NEVER NEVER apply a copyright licence clause to the original licensor.

It actually depends on what you mean by 'apply', and what sort of copyright license you're talking about.

The whole point of being the licens*or* is that you are granting rights to others. They can have no claim whatsoever against you.

Leave aside (as you are doing) the possibility of the clause in question applying to a downstream licensor (I haven't decided if this is a problem or not), and focus on the original licensor:

The clause is a copyright license grant from the original licensor. Here is it's wording in copyleft-next 0.2.0, the latest numbered version:

If, more than one year after My first distribution of My Work under this License, I offer to license a Covered Work in a manner that fails to satisfy the Open Source Definition published by the Open Source Initiative as of 1 January 2013, then I additionally license My Work to You under the Apache License [2.0] (excluding any preexisting material contained in My Work over which I do not hold copyright).

This is just saying that, if certain circumstances occur, in addition to granting you a license under copyleft-next, I also grant you a license under the Apache License.

I would not say this gives the downstream licensee a 'claim' against the original licensor, as worded, so much as a defense against a claim by the original licensor for copyright infringement. So, for example, if I'm the original licensor, and I engage in copyleft-next/proprietary dual licensing, and a year goes by and I don't stop this practice, by operation of the license I give you the opportunity to receive the software under an additional license, the Apache License 2.0. If you decide to create a proprietary derivative work out of my code -- much as I myself did -- and I sue you for copyright infringement arising out of your failure to follow the copyleft requirements of the license, my defense is that that very license gave me an escape route to use the Apache License, which is non-copyleft and permits creation of proprietary derivative works.

The problem with this clause is it is telling B what they are and are not allowed to do with their OWN CODE. THAT IS "THEFT" (and CANNOT be enforced by copyright law).

No, it's not theft. As noted, it's a copyright license grant, giving rise to a defense against copyright infringement. The copyright holder obviously cannot enforce this against itself, but that's not the point. It's designed as a self-imposed obstacle for the copyright holder. Much as any developer who uses the BSD or MIT or Apache license cannot complain if a downstream licensee creates a proprietary derivative work.

I honestly cannot see ANY developer choosing to use a licence like that. They'll use GPL.

Developers who wish to reserve the option of a viable business model based on monopolization of the right to create proprietary derivative works of a copyleft codebase are better off using the GPL or AGPL (or some legacy copyleft free or pseudo-free license). Developers interested in a license that discourages such conduct should look into copyleft-next, since it is the first license to attempt to do something about this issue.

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