Bruce Perens Unveils Post-Open Zero-Cost License 0.01
THIS is a potentially historic day. We're starting to see people who practically tackle many of the rogue elements of the OSI, which became a Microsoft front/lobbyist/advocate (after Microsoft had paid it). The main person who suggested tackling the issue is a co-founder of the OSI (we heard the other one, ESR, had cancer, but we heard this from people who want him to die along with Richard Stallman, who also has cancer and is shown above along with his friend, who remained his friend in spite of the "Open Source" rebrand).
Just to be clear, assuming many people do not know or simply forgot, both co-founders of the OSI do not condone what happened to the OSI. One resigned in protest and another got banned after having the 'audacity' to speak out (about what he had created).
As we've just noted in the sister site and the previous post, Bruce Perens (the less controversial OSI co-founder) is announcing a new licence to tackle problems with Open Source and openwashing - an issue he has publicly complained about for years (he said we'd need to reduce the number of licences to about 3), and even more so in recent months. He's also not happy about the direction Debian has taken (this matters because Perens is the second Debian Project Leader, successor of the late Ian Murdock, the "Ian" in "DebIan").
Here is the licence text Perens wishes to share, as of hours ago: █
POST OPEN ZERO-COST LICENSE 0.01, March 2024.
1. PRELUDE
1.1 HOW TO USE THIS TEXT ON YOUR OWN WORK.
If you wish to apply these terms to your own work, you must first enter into the POST-OPEN OPERATING AGREEMENT, which gives permission to use this copyrighted text.
1.2 COPYRIGHT OF THIS TEXT
Copyright (C) 2024 POST-OPEN ADMINISTRATION. All rights reserved. The section on ARBITRATION originates with the American Arbitration Association and we do not claim copyright upon it.
1.3 ADVISORY SECTIONS
Text contained within square brackets ("[" and "]") is advisory in nature and not part of these terms. These terms shall not be invalidated or otherwise impaired if advisory sections are incorrect or become out-of-date. [This is an example of an advisory section.]
1.4 THE CONTACT.txt FILE
The identity of the LICENSOR and the means of contacting them should appear in the file "CONTACT.txt" where the SOURCE CODE is stored. This file may also contain caveats regarding the work, declarations of PUBLIC INTERFACES, statements regarding the source and status of some portions of the work (for example, that the developer disclaims copyright to that portion), and other information that may effect your rights.
1.5 DRAFT NATURE OF THIS DOCUMENT
This is a DRAFT version of the POST-OPEN ZERO-COST LICENSE 0.01 . [If you don't like these terms, contact the LICENSOR for a different license.]
WARNING: These terms are not the product of an attorney, and that's a particularly bad practice - the way a judge would enforce (or decline to enforce) these terms is unpredictable, and they may let down the developer who attempts to enforce them in court. Apply these terms to your work at your own risk. [We intend to release a version that is the product of a competent attorney.]
2. DEFINITIONS
References to defined terms are rendered in all-capital lettering, for example: "TERMINATION". When a defined term appears in lower-case, it refers to the general usage of that word rather than the defined form, for example "WORK" refers specifically to the work placed under these terms by the LICENSOR, and a "work" may be the WORK or another one. Some words in these terms appear as all-capital simply as part of of common parlance, for example "A" and "HTTP".
2.1 The POST-OPEN ADMINISTRATION is the entity which, through the POST-OPEN OPERATING AGREEMENT with all of the LICENSORS of works in the POST-OPEN COLLECTION, may represent any of those LICENSORS in any controversy or claim arising out of or related to these terms and its other agreements and processes. The POST-OPEN ADMINISTRATION may bring suit or enforce other law on behalf of the LICENSOR.
2.2 The POST-OPEN ZERO-COST CONTRACT is these same terms, with the addition of clear and recorded consent by the licensee. [To enter into it, see https://postopen.org/zero-contract/ ]
2.3 The POST-OPEN PAID CONTRACT is a separate agreement which grants additional rights not provided by these terms. [To enter into it, see https://postopen.org/paid-contract/ ]
2.4 The POST-OPEN INFRINGEMENT PROCESS is the process by which an infringing entity cures an infringement and comes back into compliance without litigation. Uncooperative infringers are, of course, subject to litigation, blocking of imports, simple and punitive damages, and other prosecution. [To participate in the POST-OPEN INFRINGEMENT PROCESS, see https::/postopen.org/infringement/ ]
2.5 YOU are the legal entity exercising RESTRICTED RIGHTS under these terms and any other legal entities that YOU have more than 5% ownership of or equivalent control without ownership. YOUR is the possessive or adjective form of YOU.
2.6 A MACHINE LEARNING MODEL is a computational program or device that makes use of data to inflence its future logical operations, with or without inclusion of that data textually or in any recognizable form. Other names for MACHINE LEARNING MODEL are artificial intelligence (abbreviated AI), and large language model.
2.7 To TRAIN is to input data to a MACHINE LEARNING MODEL or for the purpose of producing or improving a MACHINE LEARNING MODEL. TRAINED is the past tense of TRAIN.
2.8 AGGREGATION is the storage of multiple works on a storage medium for the purpose of permitting access to the indivual works for the purpose of transferring them to another medium, for example computer memory or another storage medium; or the provision of those works via a method of access, for example a web site, for the purpose of transferring the indivdual works to another medium.
2.9 The WORK is the computer program, data, or other information to which these terms are applied by the LICENSOR, any derivative of the WORK under copyright or moral rights law, any transformation of the WORK (for example, compilation, text processing, non-literal copying), and any work combining or incorporating the WORK other than AGGREGTION, whether or not such combining or incorporation is considered derivative under copyright law or moral rights law. For example: a compiled program; a modified program; a program, system or device containing the WORK; a program produced by connecting another program and the WORK together except through a PUBLIC INTERFACE; a program that executes the WORK as a separate program to do some of its processing; a version of the WORK translated to a different computer language; a version of the texts of the WORK translated to another human language; or a MACHINE LEARNING MODEL TRAINED with the SOURCE CODE or any transformation of the WORK are all considered to be the WORK.
2.10 COMPILATION is the creation of an executable form of the WORK from SOURCE CODE. COMPILATION generally involves multiple tools, for example a compiler, an assembler, and a linker. COMPILATON may include the use of conditional compilation facilities provided by the developers of the WORK, and configuration of the options of the aforementioned tools.
2.11 A PUBLIC INTERFACE is an interface that is part of a fundamental purpose of the work to provide services to other works without those works becoming MODIFICATIONS, or causing the combination of works. For example, the HTTP interface of a web browser, or the system call interface of an operating system kernel. The fundamental nature of the interface within the work is important, a developer may not unilaterally add a PUBLIC INTERFACE to an existing program or remove such an interface without the agreement of the other LICENSORS. The simple existence of an API does not automatically make that API a PUBLIC INTERFACE. PUBLIC INTERFACES means one or more of a PUBLIC INTERFACE. [Where it could be unclear, the declaration of a public interface, or that a particular interface is not a public interface, may be stated in the CONTACT.txt file.]
2.12 MODIFICATION is:
a) Any alteration or transformation of the WORK other than COMPILATION.
b) The combination or inclusion of the WORK or any portion of it with another work other than through a PUBLIC INTERFACE or AGGREGATION, such that the two works are combined into a single program or application, regardless of the means of such combination or inclusion or or not such combination or inclusion is considered the creation of a derivative work under copyright and moral rights law. For example, dynamic linking, or the provision of a program through any interface that is integrated into a second program, such that the functionality of the first program is added to the combination of both programs. AGGREGATION is not MODIFCATION.
2.13 RESTRICTED RIGHTS are the exercise of any rights regarding the WORK that are protected by copyright, patent, or moral rights law, and additionally any acts which are specifically restricted by these terms. RESTRICTED RIGHTS include (but are not limited to) ephemeral or other copying, reading or examining the WORK other than to read these terms and the CONTACT.txt file, use, redistribution, modification, performance of the WORK, TRAINING of a MACHINE LEARNING MODEL with SOURCE CODE or any transformation of the WORK, and exercise of any of the aforestated rights or acts upon a MACHINE LEARNING MODEL TRAINED thusly.
2.14 PROTECTING JURISDICTIONS are those that provide legal protection of RESTRICTED RIGHTS regarding the work, except that they are not required to protect patents. Along with all of the usual copyright and/or moral rights protections, they must protect the copyright or moral rights of works used to used to TRAIN a MACHINE LEARNING MODEL. At this writing, (March, 2024) the POST-OPEN ADMINISTRATION asserts that the nation of Japan is not a PROTECTING JURISDICTION due to the lack of protection of works used to TRAIN a MACHINE LEARNING MODEL.
2.15 The LICENSOR is the legal entity which owns the WORK, and which applies these terms to it. LICENSORS means one or more LICENSOR. Most works in the POST-OPEN COLLECTION will be the product of many real persons, and businesses, and organizations, who may license it directly or through another legal entity.
2.17 SOURCE CODE is the human-readable, unobfuscated and preferred form of a work for modification. In the case of a compiled or interpreted computer language, this would be the language used as input to the compiler or interpreter.
2.18 PUBLIC RELEASE is the publication of the SOURCE CODE of the WORK or a MODIFICATION in a public site on the internet, licensed under these terms, where it is expected to be permanently and reliably available worldwide for download without any permission or legal agreement in addition to these terms. One example, at this writing, would be a public repository on "github.com". [The most common practical form of PUBLIC RELEASE at this writing is contribution of a modification to a project via the "pull" mechanism of public "git" repository.]
2.19 The POST-OPEN COLLECTION is all works that have been placed under these terms by LICENSORS who have entered into the POST-OPEN OPERATING AGREEMENT, and for which PUBLIC RELEASE has been performed.
2.20 TERMINATION immediately discontinues YOUR GRANT OF RIGHTS to all works in the POST-OPEN COLLECTION, including (but not limited to) the WORK, but all other terms contine to apply and YOUR consent to these terms survives TERMINATION. TERMINATION is never ended automatically, or simply by the cure of the condition causing TERMINATION. YOU must take a specific action to cure TERMINATION, such as entering into one of the contracts that allows the condition that previously caused TERMINATION (the POST-OPEN ZERO-COST CONTRACT or the POST-OPEN PAID CONTRACT), or by participating in the POST-OPEN INFRINGEMENT PROCESS. TERMINATES is the act or past-tense of TERMINATION.
3. CONDITIONS
3.1 ZERO-COST CONDITIONS
TERMINATION occurs when any of the conditions in the following list apply to YOU and YOU have not already entered into the POST-OPEN ZERO-COST CONTRACT. If YOU wish to continue to exercise RESTRICTED RIGHTS after one of these conditions applies, YOU may enter into the POST-OPEN ZERO-COST CONTRACT. [Which is a version of these same terms with the addition of clear and recorded consent by the licensee.]
a) You exercise RESTRICTED RIGHTS outside of a PROTECTING JURISDICTION.
3.2 PAID CONDITIONS
TERMINATION occurs when any of the conditions in the following list apply to YOU. If YOU wish to continue to exercise RESTRICTED RIGHTS, YOU may enter into the POST-OPEN PAID CONTRACT. [Which is a separate agreement that gives permission to perform the stated actions, in exchange for annual payment and an annual disclosure requirement.]
a) The end-user revenue through all legal entities in which YOU have ownership exceeding 5% or equivalent control without ownership exceeds USD$5 Million anually. End-user revenue is all money or other value collected from customers, including the financial value equivalent of any non-monetary remuneration such as barter or the grant of rights or privileges.
b) You provide, for remuneration, any work in the POST-OPEN COLLECTION to others, other than PERSONAL USE, or perform that provision at the order of another legal entity that receives remuneration for it. This includes (but is not limited to) provision of the work as a service; or inclusion of the work in a product that is sold, for example software that is sold or sale of a device containing the WORK.
c) You make MODIFICATIONS to any WORK in the POST-OPEN COLLECTION without performing one of these actions (you may perform both):
I) You enter into the POST-OPEN OPERATING AGREEMENT and make a PUBLIC RELEASE of the MODIFICATION.
II) You enter into the POST-OPEN PAID CONTRACT.
3.3 TERMINATION CONDITIONS
TERMINATION occurs if any of the conditions in the following list apply to you.
a) You perform any action prohibited by these terms, breach this contract, or infringe RESTRICTED RIGHTS of any work in the POST-OPEN COLLECTION.
b) You bring suit or other enforcement for patent infringement regarding any work in the POST-OPEN COLLECTION or cause, fund or join such a suit or enforcement.
c) YOU further restrict the rights granted in these terms, YOU add any terms to these terms, or YOU make separate terms which change the effect of these terms. For example, you enter into a contract with users which includes a punitive action if they redistribute security information regarding a work in the POST-OPEN COLLECTION or MODIFICATIONS of such a work intended to cure or mitigate a security issue.
d) You cause the any work in the POST-OPEN COLLECTION to potentially become subject to export control laws (for example the US ITAR and EAR) by exercising RESTRICTED RIGHTS for military, defense, or weaponization purposes; by requesting or participating in support or services regarding any work in the POST-OPEN COLLECTION for military, defense, or weaponization purposes, or by making a MODIFICATION of any work in the POST-OPEN COLLECTION for military, defense, or weaponization purposes.
e) YOU deliberately do not report security-related information regarding the any work in the POST-OPEN COLLECTION to the LICENSOR and the POST-OPEN ADMINISTRATION as soon as possible, or YOU create an agreement with terms restricting any other party from making such a report, except in the case that you are legally restricted from making such a disclosure by a direct order of your government (rather than a private agreement such as an NDA), and then only as long as such a restriction applies. [Please see https://postopen.org/security/ to make a report to the POST-OPEN ADMINISTRATION and the LICENSOR.]
For example, if YOU are a company or other entity that provides security services, and you disclose security information about the WORK to your customers and affiliates without also disclosing it to the POST-OPEN ADMINISTRATION and the LICENSOR before then or at the same time, you violate these terms and TERMINATION occurs.
f) You train a MACHINE LEARNING MODEL with the SOURCE CODE or any transformation of a work within the POST-OPEN COLLECTION, or exercise any rights protected by copyight, patent, or moral rights law regarding a MACHINE LEARNING MODEL TRAINED with the text of a work within the POST-OPEN COLLECTION. These would include (but are not limited to) use, copying, or redistribution of such a model; exercise of the same rights on the behalf of others; or having those rights exercised on YOUR behalf.
g) YOU are unresponsive for more than 60 days to enforcement-related communications of the POST-OPEN ADMINISTRATION regarding these terms or one of these agreements if you have entered into it: the POST-OPEN ZERO-COST CONTRACT, the POST-OPEN PAID CONTRACT, or the POST-OPEN OPERATING AGREEMENT.
4. TERMS
These terms include this entire document, including (but not limited to) the DEFINITIONS and PRELUDE, except for the ADVISORY SECTIONS.
4.1 REQUIREMENT TO LICENSE
You must license the WORK if YOU exercise RESTRICTED RIGHTS, even the right to read or examine the WORK, or if another legal entity exercises RESTRICTED RIGHTS on YOUR behalf, for example a software-as-a-service business which provides servers that execute the WORK for YOU. You may license the WORK via these terms, or by executing the POST-OPEN ZERO-COST CONTRACT or the POST-OPEN PAID CONTRACT.
At your option, you may enter into the POST-OPEN ZERO-COST CONTRACT at any time. This provides you a executed contract with these same terms, and consent by YOU and the POST-OPEN ADMINISTRATION, which may be more convenient to your business or legal process.
4.2 RIGHTS RESTRICTION
No exercise of RESTRICTED RIGHTS, including (but not restricted to) ephemeral copying, is permitted except under these terms or by entering into the POST-OPEN ZERO-COST CONTRACT, the POST-OPEN PAID CONTRACT, or the POST-OPEN OPERATING AGREEMENT, as applicable.
4.3 NO WARRANTY, REQUIREMENT FOR INDEMNIFICATION
To the extent permissible by law, no warranties are applicable to the WORK, even warranties of usability or fitness for use. You agree to indemnify the LICENSOR and the POST-OPEN ADMINISTRATION regarding any hazard or liability caused by YOUR use of the WORK, including (but not limited to) damages to you and others, penalties or fines levied by government, and prosecution of patent infringement resulting from YOUR exercise of RESTRICTED RIGHTS. If such liability is of concern to YOU, you are advised to purchase insurance to protect YOU from it. [The POST-OPEN ADMINISTRATION does not offer such insurance at this time.]
4.4 ASSERTION OF PRESENCE OF DEFECTS, NO RESPONSIBILITY TO REPORT OR CURE
There are defects in the WORK, both known and unknown, including (but not limited to) ones with a potential effect upon security or privacy of the user, and ones that could conceivably cause damage to life or property. It is not technically or economically possible to produce a work free of defects within the state of the art at this time. The LICENSOR and the POST-OPEN ADMINISTRATION may operate a defect reporting system, but decline responsibility to report, repair, or cure defects under these terms, to the extent permissible by law. Such serivces may be available through a paid support contract.
4.5 ASSERTION OF THE POSSIBILITY OF PATENT CLAIMS
The WORK may be considered to come under one or more existing patent claims, regardless of the validity or enforcibility of such claims. A complete patent search and the development of an understanding of what patents are actually valid or enforcible is not technically or economically possible. The liability for such claims is entirely yours, and the LICENSOR and the POST-OPEN ADMINISTRATION deny any such liability, including to YOU. If such liability is of concern to YOU, YOU are advised to purchase insurance to protect you from it.
4.6 MODIFICATION
MODIFICATION of the WORK with PUBLIC RELEASE requires entry into the POST-OPEN OPERATING AGREEMENT. If YOU wish to make MODIFICATIONS without PUBLIC RELEASE, YOU must enter into the POST-OPEN PAID CONTRACT. You may enter into both and make modifications under each as appropriate. If YOU perform MODIFICATION without entering into the POST-OPEN OPERATING AGREEMENT or the POST-OPEN PAID CONTRACT, TERMINATION occurs.
Producers of significant MODIFICATIONS and new works are advised that if YOU make PUBLIC RELEASE and enter into the POST-OPEN OPERATING AGREEMENT, the POST-OPEN ADMINISTRATION may pay you with part of the revenue collected under the POST-OPEN PAID CONTRACT. Thus, there is a financial incentive for all parties to publish their modifications and increase the size and functionality of the POST-OPEN COLLECTION.
Modifications that are made available via PUBLIC RELEASE are more likely to be maintained as part of the overall project, while private modifications must be brought up to sync with every public release if you wish to use the features and bug fixes in that release, and this will be a continuing expense.
4.7 CONSENT AND AGREEMENT
This is a contract between YOU, the LICENSOR, and the POST-OPEN ADMINISTRATION. Exercise of any RESTRICTED RIGHTS indicates YOUR consent to these terms. YOU may explicitly indicate your consent by entering into the POST-OPEN ZERO-COST CONTRACT, but your consent is indicated whether or not you do so.
If YOU are a government, nation, or soverign power, you agree to comply with the law and these terms as they would apply to real persons in your jurisdiction. You specifically consent to allow and commit to respond to any lawsuit by the LICENSOR or the POST-OPEN ADMINISTRATION.
If YOU are more than one legal entity, each individual entity which exercises RESTRICTED RIGHTS must enter into these terms, the POST-OPEN ZERO-COST LICENSE, or the POST-OPEN PAID LICENSE.
YOU agree to comply with these terms regardless of the status of the WORK under copyright, moral rights, or patent law. Where the law grants YOU a right and these terms prohibit it, these terms shall prevail to the extent permitted by law. YOU agree not to exercise RESTRICTED RIGHTS outside of these terms. You agree not to TRAIN a MACHINE LEARNING MODEL with the information of any work in the POST-OPEN COLLECTION. You agree not to perform ephemeral copying with the purpose of TRAINING such a model.
4.8 NO RIGHT TO RELICENSE
This agreement directly is between the LICENSOR, the POST-OPEN ADMINISTRATION, and YOU. When you convey a copy of the WORK to another party, or run the work as a service on behalf of another party, you must give them a copy of these terms and inform them that the WORK is covered by these terms. These terms then apply directly between them, the LICENSOR, and the POST-OPEN ADMINISTRATION.
4.9 PUBLIC INTERFACES
YOU agree to connect the WORK to software which is not under these terms only through its PUBLIC INTERFACES. YOU agree that an API present in the WORK which is not declared a PUBLIC INTERFACE is not permissible for use for connecting to programs that are not under these terms.
4.11 NO CIRCUMVENTION
YOU agree not to employ legal or technical strategies with the main purpose of circumventing the effect of these terms. For example, creating a legal entity for the purpose of entering into these terms while insulating another legal entity from these terms; or creating a technical means of linking a program in the POST-OPEN COLLECTION to a second program which is not under these terms, without that second program being considered part of the WORK.
4.12 GRANT OF RIGHTS
In consideration of your consent to the entirety of these terms: as long as TERMINATION has not occured, you are granted the right to exercise RESTRICTED RIGHTS other than MODIFICATION, including (but not restricted to) use and redistribution of the WORK and exercise of patent claims of the LICENSOR and the POST-OPEN ADMINISTRATION necessary to exercise RESTRICTED RIGHTS other than MODIFICATION under these terms.
4.13 CONDITIONS FOR TERMINATION
At the moment that the PAID CONDITIONS, ZERO-COST CONDITIONS, or TERMINATION CONDITIONS apply to YOU, TERMINATION occurs. You may then, as applicable, enter into the POST OPEN ZERO-COST CONTRACT, the POST-OPEN PAID CONTRACT, or YOU may contact the POST-OPEN ADMINISTRATION regarding curing an infringement under the POST-OPEN INFRINGEMENT PROCESS. Please pre-emptively enter into the aforementioned agreements before such a situation arises.
4.14 SEVERABILITY
If a court should strike any of these terms or find them unenforcible, the minimum possible text is struck and the remainder of these terms survive.
4.15 ACCEPTANCE OF THE POST-OPEN ADMINISTRATION AS A PARTY TO ANY DISPUTE
YOU accept that the POST-OPEN ADMINISTRATION has the right to represent the LICENSOR in any controversy or claim arising out of or relating to these terms.
4.16 ARBITRATION
Any controversy or claim arising out of or relating to these terms, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association if the parties are all within the United States, or the International Centre for Dispute Resolution in the case that a party to the dispute is external to the United States, in accordance with the Commercial Arbitration Rules and/or other appropriate rules of those organizations. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. YOU and all parties to these terms consent to the use of computer videoconferencing or telephone conferencing, rather than personal appearance, for the operation of arbitration and any court session.
4.17 REVISION OF THESE TERMS
During the present DRAFT terms period, changes to these terms published as a revised DRAFT by the POST-OPEN ADMINISTRATION are effective immediately and superscede the terms previously issued.
After the first publication of a FINAL version of these terms, the following terms apply:
The POST-OPEN ADMINISTRATION may publish revised versions of these terms. Revised terms will remain substantially similar to these ones, and may include changes only to:
a) Correct errors and ambiguities. b) Avoid loopholes that have come into use. c) Respond to findings of courts which server some of the terms or interpret some of the terms unfavorably. d) Respond to new law or law newly enforced upon any party to these terms. e) Respond to changes in technology (for example, this text responds to the rise of MACHINE LEARNING MODELS and TRAINING of such, terms which were not included in classical Open Source licenses). f) Respond to changes in monetary value: for example, a change in the real value of the stated amount of end-user revenue requiring that YOU join into the POST-OPEN PAID CONTRACT, or a change in the nation or other entity for which that value is defined: (for example, a change from USD to a presently-theoretical stable global currency).
When changes to these terms are published as FINAL revised terms by the POST-OPEN ADMINISTRATION (rather than a DRAFT), YOU may, at your discretion, immediately apply the new terms, or you may continue to apply these terms to works already in your use for no more than one year from the publication of the revised terms. If you begin to use another work in the collection, the new terms apply to it immediately. [This allows the licensee time for legal evaluation of the new terms and to make decisions regarding their use of the POST-OPEN COLLECTION.]