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Re: [epl-discuss] EPLv2 Current Draft


This is excellent and thoughtful feedback. Thank you so much for taking the time to do it.

I believe that you will be joining us on the call later today, so we can discuss these points there.


On 2017-06-07 8:59 AM, Andrew Katz wrote:

My apologies for not taking part in this to date. I’ve had a look at the current drafts, and they are shaping up well. I have a couple of comments:

1. Definitions:

"Contributor" means any person or entity that Distributes the Program

This makes perfect sense to me, and essentially means that a recipient’s obligations are limited until the point they make a distribution. However, I’m concerned that this interacts with section 3.3 to created an unintended consequence, which I mention below.

  “Distribute” means the act of distribution or making available for download

Are we happy that this includes making this available through torrents? In EU law, we have two related concepts (the distinction between them being far from clear) being ‘making available to the public’ and ‘communication to the public’. My understanding is that ‘making available to the public’ is part of the WIPO copyright treaties, and therefore should also be enshrined in US law, but others here will understand this significantly more than I do. ‘Making available for download’ to me has a connotation of obtaining the file as whole, from a single place.

“Secondary License” means either the GNU General Public License, Version 2.0, or any later versions of that license

This also makes sense. However, to avoid any argument that some entity may have tried to fork the GPL, wouldn’t it make sense to limit this to append the words ‘published by the Free Software Foundation’ (which is the exact wording used in GPLv2 itself)?

Section 3.1

3.1(a) uses the term ‘licensees’ - the only time it’s used in the draft. V1 of the EPL uses the term ‘licensees’ in relation to section 3b(iii), which makes sense in that context, because that subsection talks about the ability to issue code under your own licence. However, the new equivalent (clause 3.1(b)iii) uses the term ‘recipients’ instead. Either we should use ‘recipients’ in both locations (3.1(a) and 3.1(b)(iii) - which is probably best for consistency, or we should swap the terms ‘licensees’ and ‘recipients’ in those two subsections.

Section 3.3.

I propose the following tweaks

3.3 Contributors may not remove or alter any copyright, patent, trademark, attribution notices, disclaimers of warranty, or limitations of liability (‘notices’) contained within the Program from any copy of the Program which they Distribute, provided that Contributors may add their own appropriate notices.

(Amendments in bold, which hopefully you can read). My concerns here are (1) that what a Contributor does prior to distribution is not of concern (this ties in with my comment about the definition of Contributor, which is fine, and echoes the definition in EPLv1); and (2) adding a notice should not be regarded as an alteration of the notice, hence the clarification that it’s ok to add stuff (’appropriate’, which I’m not completely happy with, is trying to exclude spamming or using an addition to have the effect of modifying an existing notice).

Section 7

I propose a slight amendment to the sentence:

No one other than the Agreement Steward has the right to modify of this Agreement

Such that it reads:

No one other than the Agreement Steward has the right to modify the text of this Agreement

The logic being that since this is expressed as a bilateral agreement, the contracting parties always have the right to modify the agreement (by subsequent contract, for example), but this is more an IPR issue around the text of the licence. My personal view is that the Apache approach is better (the licence itself is modifiable, but you can’t use the term ‘Apache’ on any modified licence), but I don’t have a particularly strong view about that.

And, finally also on section 7, since this is a bilateral agreement which talks about rights granted to classes of third party, ('licensees', and ‘recipients’ for example, as discussed above), were it to be interpreted under English law, the Contracts (Rights of Third Parties) Act 1999, which automatically extends third party beneficiary rights to any third party or class of third parties in contracts unless expressly excluded, would act to make this contract enforceable by licensees and recipients. I’m assuming that’s not the intention, and therefore at the very end of section 7 it would be helpful to add the wording:

Nothing in this Agreement is intended to be enforceable by any entity not a party to it, and third party beneficiary rights are excluded.

(We would normally include a specific reference to the legislation in the excluding clause, but I appreciate that you don’t want to make the agreement referable to any one jurisdiction, and have agreed to internationalize it by removing references to New York law - from what I understand this wording would not be problematic in New York, however).

I apologise if these issues have already been raised and resolved in previous calls. I did look at the mailing list and couldn’t find any reference to them, and in any event I’m hoping they are helpful rather than contentious!

I look forward to joining the call later.

Many thanks


Andrew Katz
Moorcrofts LLP

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