Subject: Comment on the MiscKit license

From: [email-masked] (Don Yacktman)
Date: Tue, 19 Oct 1993 14:44:15 -0600

I am forwarding a message to the list, to open a few issues up
for discussion.  (The reason it wasn't posted to the list right
away, and was sent to me first, will be apparent from reading
the message.)

My opinions on this:  I think for the most part I agree with
Joe's comments here.  The only one I worry about is the mass
media thing, and here's why... On a media which is sufficiently
large enough to hole the kit uncompressed, I'd prefer the kit
be distributed uncompressed (like a CD-ROM, especially) so that
the user can poke about the kit without having to decompress it,
typically by copying the whole thing off of the media.  It's a
convenience issue, mostly.  I also don't want someone to charge
huge amounts of money for the MiscKit.  The kit is free, and I
don't want someone to come along and, for example, sell the kit
on floppy for $100, and then claim that the kit was free, of
course, but the media cost was $100.  That's just plain obnoxious,
and I know that if we didn't restrict this in some way, it will
happen, and the gullible folk will be taken in...

Finally, as to the administrator's permission before distribution
via mass media, there's three things involved:  (1) the distributor
ought to me told/informed of the latest version; they can
distribute whichever version they like, but ought to at least
be given the option of using the latest version; this option
can only be presented if they get the latest release info from
the administrator, since only the administrator knows exactly
when new releases will be made, and also a new release can be
rushed through to make deadlines for the distributor, if need
be.  (2) It allows the administrator to keep track of who is
distributing the MiscKit, so that if someone asks "where can
I get this on CD-ROM?" the administrator can answer...and, in
this case, if there are two or three competing CD-ROM vendors,
if one didn't tell the administrator of their product, it would
give their competitors and advantage, since their name would
not come up as a possible distribution point... and (3) it's
just a common courtesy to let the MiscKit folks know about
redistribution of their work.  Perhaps I should re-word it
that permission is granted as long as they notify the MiscKit
administrator of the re-distribution...

Anyway, my comments above will make more sense in light of
the message below, from Joe Grace.  Any comments from other
folks out there?

Later,
-don

Begin forwarded message:

>From [email-masked] Tue Oct 19 13:25 MDT 1993
Date: Tue, 19 Oct 93 11:51:37 PDT
>From: [email-masked]
To: [email-masked] (Don Yacktman)
Subject: Re: New MiscKit
Status: R

Ok Don,

>If I don't get any more feedback on the charter and license
>before Friday, they will become version 1.0, so speak now
>or forever hold your peace!

you forced me to do it...  look at the MiscKit license! :-)

I have a variety of comments.  If I am too late in the process, or somehow  
going against the grain of the MiscKit purpose, just let me know.  I am sending  
this e-mail only to avoid opening a can of worms unnecessarily.

As you know, I did not become a member of the MiscKit mailing list until a few  
weeks ago.  I may have missed some definitive discussions about these topics.   
Nevertheless, here's my 2 cents.

My comments fall into four categories:  typos and diction, possible  
simplification, less restriction, and more restriction.

1.  Typos and diction:

	I noticed two typos, "conatining" should be "containing", and "peice"  
should be "piece".  On diction, the term "Indian Giver" is very derogatory (and  
unfair, I believe) to the American Indian community.  Perhaps, its usage could  
be avoided (and see #2, just below).

2.  Possible Simplification:

	Re: 5bcd
	I think the license could be simplified somewhat by adopting the dual  
copyright approach to submissions.  As I understand it, when someone submits  
<something> to the public domain, two identical "version"s of that <something>  
now exist, one with the original copyright holder's copyright and one in the  
public domain.  Typically, the original is moribund and the PD version takes  
over.  However, in theory (and in some practical cases, e.g., JOVE or Josh's  
Own Version of Emacs), the original author retains a copyrighted version of the  
material to do with whatever s/he would like.  This dualism avoids any  
confusion of excluding one party or the other from having "the" official  
copyright.
	In the case of MiscKit, a copyright would be donated by the author to  
MiscKit.  Both the author and MiscKit would then have copyrighted versions of  
identical material for their own purposes.  In this way, the backpedaling  
("Indian Giver") problem is avoided.  For example, when I submit an article to  
NeXT Review, they get certain copyright (i.e., exclusive publication rights for  
some number of months, and the copyright to reprint), but I retain all my  
original copyrights (excepting any violation of their temporary exclusive  
publishing privilege).
	I believe the license could be simplified by adopting this dual  
copyright model.  For instance, the support issue by author could be dropped  
(it has no bearing on MiscKit's copyright).  Also, the whole issue of  
backpedaling could be dropped, except perhaps to mention that the author loses  
any right over the MiscKit copyright, even if s/he had a change of heart and  
wanted to reclaim it.  In this case, the author would still retain the original  
copyright to do with whatever s/he wished, but would have lost ownership and  
control over the MiscKit copyright'ed version.

3.  Less Restriction:

I may have missed important stuff on this topic, but these are my tastes, for  
what it's worth...

	Re: 3a
	Is the administrator's permission requirement really desirable?  The  
problems I see:
	It's a hassle (no matter how seemingly minor) for all involved and adds  
a "big brother" feel to the license.
	If the reason really is "to make sure that the latest version of the  
MiscKit is being distributed", then perhaps *that* should be term 3a instead.   
(Also, see just below.)

	Re: 3a: "latest version being distributed"
	Is this 'restriction' really desirable?  I can imagine (especially with  
GNU stuff) *choosing* to distribute an older version for compatibility,  
robustness, confidence, patch-stability reasons.  Older versions are not  
necessarily worse than later versions.

	Re: 3bc
	Again, are these restrictions on media format necessary and desirable?   
Distributors and users probably deserve the credit of the doubt to choose  
themselves.  Also, if someone violates these restrictions, is this really a  
battle MiscKit administrators and owners would care to fight to the finish?   
Removing these restrictions could simplify the license, increase karma (what's  
this guy talking about anyway :-), and avoid sour grapes, so to speak.
	Also, the license could then avoid arbitrarily defining what  
constitutes "mass media" today, when technology is changing very rapidly.   
Arbitrary definitions have short, unpleasant lives in these cases.  (Otherwise,  
we could go bureaucratic and define a "Consumer Storage Index (CSI)" and relate  
the "mass storage" to the yearly increase in the CSI! :-)  Frankly, I think  
such arbitrary stuff is best left to Congress (I hope no Congress-people are on  
this list :-).

	Re: 2
	I would prefer partial kit distribution be allowed.  This restriction  
is purportedly due to section 6, "collection copyright", but, the way I read  
the license, would really be due to sections 5bcd (though I don't see the  
explicit connection).  (I.e., having a collection copyright (section 6) does  
not restrict you from creating yet other collections, even partial ones.)   
Smaller objects should still be distributed with the MiscKit license and under  
the MiscKit terms, though.

4.  More Restriction:

	Re: 2
	Perhaps this 'marking' could simply be a requirement to include the  
MiscKit License Agreement with any and all distributions.  This is the approach  
GNU takes.  This approach would ensure the 'marking' were comprehensive and not  
just superficial.

	Re: 9
	Perhaps any changes to the license should be restricted in some way to  
maintain the community "free"dom to use.  Otherwise, the MiscKit license could  
go proprietary without warning!  (I know, it couldn't happen... but truth is  
often stranger than fiction, heh? 1/2 :-)  For example, if MiscKit came under  
exorbitantly expensive legal fire from some *EVIL* entity (e.g., Microsoft(tm)  
:-), the rights to the MiscKit could be lost without recourse.  The *EVIL*  
entity would now *own* the MiscKit and could change the license.  Why tempt  
fate? (:-)
	Also, this safety restriction could avoid contributors having second  
thoughts about contributing to a library which has an uncertain future.  GNU  
takes this approach, and I think it's a wise one (even though the GNU license  
is too restrictive for my tastes).
<<< Depressing mode on :-( >>>
	(Hmm, I guess this issue is related to the dual copyright approach  
which I recommend above.  Otherwise, the authors would also get sued by *EVIL*  
entity and would lose rights that way (since MiscKit never really owned any  
individual copyrights anyhow.)  As long as Congress does not eradicate the  
"legal" (counterproductive, illegitimate) morass of software patents, hostile  
lawsuits must not be taken for granted.  (Actually, I'm not sure anything could  
avoid disaster in the face of a lawsuit, but (I think) it's worth the words to  
avoid the possibility if at all possible.)
<<< Depressing mode off :-) >>>

Harumph (:-).  "Nuf said by me for the moment.

Don, if you would like to post this to the list or otherwise open to public  
discussion, feel free!  I kept it private since it may open a can of worms you  
would like to avoid, and I may have missed messages where these issues were  
covered already.  In any case, I hope my comments are helpful!

Cheers,

= Joe =

---

From: [email-masked]
Date: Tue, 19 Oct 93 15:45:02 PDT

Disclaimer: I am no lawyer.  (Also, please add that to my previous message  
which Don forwarded! :-)

After looking into copyright technicalities further, I have discovered that my  
"dual" copyright notion is (apparently) wrong.  If I understand it properly,  
the GNU License is just a license from the original author.  Presumably (?),  
this licensing approach would be appropriate for MiscKit as well.  In this  
case, the original author retains "the" copyright (in contradiction to what I,  
at one point, implied in my message to Don), and FSF/MiscKitGroup merely  
licenses from the author.  FSF/MiscKitGroup then sub-license the software to  
their users (under the terms of their own licenses).

(An obvious alternative to the licensing approach would be for the author to  
"transfer" all rights to FSF/MiscKitGroup, but then the author would lose  
his/her own rights to his/her own work!  Obviously, that might put a damper on  
submissions! 1/2 :-)

Sorry for any confusion.

= Joe =

p.s., as I said, I am no lawyer.  Take with (yet another :-) grain of salt.