


On Tue, Oct 19, 2004 at 05:59:42PM -0400, John Cowan wrote:
> > Sublicensing means that you are still bound by the original licence, 
> > but you can offer any licence in the specified range to those you 
> > distribute to.
> Quite so, and I should have clarified that point.  If Alice licenses
> a work to Bob under a sublicenseable license, and Bob sublicenses the
> same work or a derivative work to Charlie, then Charlie cannot receive
> from Bob under a license that contradicts Alice's license.  In the
> case of the AFL, as of the MIT license, it is so permissive that it
> is almost impossible to contradict it.

This also implies that, for example, "Licensor hereby agrees to provide
a machine-readable copy of the Source Code of the Original Work ..."
means "if you distribute this, you're the licensor, so *you* agree to
provide ...".  This clause reads as if it says "the original author
agrees ...".  Placing conditions by asserting that the licensor agrees
to something and then arranging for redistribution to turn you into the
licensor may well be legally valid, but it's extremely confusing, and
most people aren't going to understand it.

If the "sublicense" doesn't have to be the AFL, though, I don't quite
understand what the intention is.  That seems to mean that if I redistribute
the work, I have to include source--but I can distribute it under the X11
license, so the person I send it to is no longer forced to include source
(or to grant patent licenses, and so on).

If I can't do that, then I can't distribute it "under any license whatsoever"

> > The wording in the AFL looks like the range of 
> > permitted sublicences consists of only the AFL, but maybe I 
> > misunderstood it.
> No, it permits sublicensing the work and derivative works under any
> license that doesn't contradict the AFL, since it would require particular
> words (as found in the OSL, the AFL's sibling license) to restrict it.
> The license need not even be a free license.  So works under the AFL
> can be treated much like those under the BSD or MIT licenses.
> I have urged Larry to add explicit words "under any license whatsoever" to
> the next version of the AFL, to make the consequences of sublicenseability
> clear.

This doesn't make sense to me.  A license gives a set of permissions,
sometimes with conditions.  Allowing anything that the AFL doesn't,
or restricting it in any way that it doesn't, seems to "contradict the

> > I'm surprised if the author of the AFL thinks it can 
> > be replaced by any licence, as that would seem to be a trivial way to 
> > defeat its overbroad patent termination.
> The AFL, being a contract, cannot and does not attempt to defend Licensor
> against patent lawsuits by third parties who are not licensees.

For what it's worth, I think the general feeling here is that licenses that
need to do things which require a contract to be formed, and not a simple
copyright license grant, are "probably non-free".  It also brings in a
bunch of bags of worms: "consideration", for example, and to my (very
poor) understanding, contract law differs across jurisdictions far more
widely than copyright law.

> 	This License shall terminate automatically and You
> 	may no longer exercise any of the rights granted
> 	to You by this License as of the date You commence
> 	an action, including a cross-claim or counterclaim,
> 	against Licensor or any licensee alleging that the
> 	Original Work infringes a patent.
> So it takes away Bob's right to use Alice's software if Bob claims that
> that very software infringes Bob's or Charlie's patent.

This has been discussed recently at extreme length, and no strong consensus
was reached.

One issue is defensive countersuits: if you sue me claiming patent
infringement, and I countersue with another patent, I lose my license
to the software.  Allowing this is arguably worthwhile, due to the
current legal environment where the only strong patent defense is other

Some people think that this is an acceptable trade-off; some think that
it's not, and that there probably is no way to construct a patent defense
clause without this type of side-effect.

I'd recommend not debating this issue in this thread, though--if you do,
it's almost guaranteed to subvert the thread entirely.

> > I think you are right that it's an unusual practice for free software, 
> > though, but I'm not a lawyer.
> There's an awful lot of MIT-licensed and MPL-licensed software out there.
> Any of it can be sublicensed (with varying restrictions on the sublicense);
> whether it is or not, nobody knows.

I don't know about the MPL, but the MIT license isn't attempting to
"accomplish" anything: it says "do whatever you want".  Releasing
modifications under a more restrictive license doesn't subvert any
of its goals, since it doesn't have any.  On the other hand, the GPL
has some very specific goals: requiring that source always accompany
binaries, for example.

What I don't understand is 1: what are the AFL's goals, particularly
(for the sake of discussion) in "agrees to provide a machine-readable
copy of the Source Code ...", and 2: why are those goals not subverted
by this sublicensing stuff?

Glenn Maynard

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