Chapter 4. Qt, Artistic, and Creative Commons Licenses

This chapter addresses two licenses closely associated with particular programs: the Q Public License (the Qt Toolkit) and the Artistic License (Perl). Each of these licenses has unique features, reflecting the specific terms that their creators wished to impose on users or modifiers of their work. Unlike the GPL or BSD licenses, these licenses are not frequently applied to programs other than those for which they were originally developed, and they tend to be adapted only for the code originally licensed under them and derivative works. Nonetheless, because these licenses are still in frequent use and because they provide some interesting contrasts to the licenses already discussed, they are described at some length in this chapter.

Also discussed is the Creative Commons license—the fruit of an effort to expand the open source model of development beyond software to literature and the arts. While its creators state that it is not applicable to software, it is a well-written license and has begun what will be an interesting experiment at the very least.

The Q Public License

The Q Public License (QPL) was designed by the Norwegian firm Trolltech to govern the distribution of its software, the Qt Toolkit. The Qt Toolkit is a crossplatform toolkit for the development of graphical user interface (GUI) applications. It is used in KDE, a graphical user interface frequently used as a desktop environment for UNIX and UNIX-like operating systems, including many varieties of Linux. As KDE became more popular for use in Linux operating systems, concerns developed in the open source and free software community about the limitations imposed by the QPL. In reaction to this pressure, Trolltech agreed to cross-license the Qt Toolkit under the GPL as well as the QPL, after which the developers of KDE immediately shifted their license to GPL. Distribution of the Qt Toolkit and KDE has since been predominantly under the GPL.

The QPL provides a novel approach to a number of open source licensing issues. Among other things, the QPL permits distributions of modifications to covered software in the form of patches under less restrictive terms than modifications compiled with the original code, and provides certain rights applicable only to the initial developer of the licensed code.

The QPL is presented in numbered sections following the first (unlabeled) section that is the introduction. This introduction includes the copyright notice for the license itself, permits distribution and copying of the license explicitly, and provides that the license applies to all software containing the appropriate copyright notice.

Copyright © 1999 Trolltech AS, Norway.

Everyone is permitted to copy and distribute this license document.

The intent of this license is to establish freedom to share and change the software regulated by this license under the open source model.

This license applies to any software containing a notice placed by the copyright holder saying that it may be distributed under the terms of the Q Public License version 1.0. Such software is herein referred to as the Software. This license covers modification and distribution of the Software, use of third-party application programs based on the Software, and development of free software which uses the Software.

This is standard form for an open source license. The section’s last sentence makes clear that the license is intended to apply to all programs “based on the Software” and “which uses the Software.” As was the case with the GPL, any software that is based on or uses the Software must itself comply with the terms of the QPL or otherwise violate the terms of the original grant of rights under the QPL.

Sections 1 through 6 of the QPL appear under the section heading "Grant of Rights.” Section 1 reiterates and further articulates the generational limitations applicable to QPL-licensed software

1. You are granted the non-exclusive rights set forth in this license provided you agree to and comply with any and all conditions in this license. Whole or partial distribution of the Software, or software items that link with the Software, in any form signifies acceptance of this license.

Any work that incorporates, relies on, or links to the Software must be governed by its terms.[1] Distinctions concerning the effect of linking and libraries[2] are described later in Sections 5 and 6.

Section 2 articulates the right to distribute unmodified versions of the software.

2. You may copy and distribute the Software in unmodified form provided that the entire package, including—but not restricted to—copyright, trademark notices and disclaimers, as released by the initial developer of the Software, is distributed.

The only apparent limitation on the exercise of this right is that the copyright and trademark notices and the disclaimers applicable to the Software (described at the end of the license) are distributed with the Software. However, Section 4 also requires compliance with certain provisions as a prerequisite to distribution of the unmodified Software, beyond those in Section 1. Any person distributing the Software should comply with both sections.

Section 3 permits the distribution of modifications to the Software, in the form of patches.

3. You may make modifications to the Software and distribute your modifications, in a form that is separate from the Software, such as patches.

The QPL provides substantially different restrictions on distributions of modifications as patches than it does on distributions of modifications in executable code. The distribution of modifications as patches has significant benefits to the original developer, some benefits and drawbacks to users of the modified software, and some substantial drawbacks for contributors. Distributing modifications as patches clearly delineates, in a way that no set of notices ever could, what part of the software is the work of the initial developer and what part of it is a result of the work of contributors. This has the effect of protecting the reputation of the initial developers and of making clear the primacy of the developer’s work.

From a user’s point of view, there is the benefit, presuming that the initial work is good, that the end user will always have access to the functionality embedded in the original work. The user does not have to compile the patches, after all. On the other hand, to the extent that such a user wants to access functions or improvements made by contributors, she is put to the task of recompiling the source code to include the patches, which is not an insurmountable obstacle.

Tip

Another product that allows free distribution but prohibits changes is the qmail mail server. For details on its distribution rules, see http://cr.yp.to/qmail/dist.html. As a result, developers extending qmail also use patching methods, although there aren’t any explicit rules on the nature of those patches.

From the point of view of the contributors, the distribution of modifications in the form of patches presents a serious drawback. Because of the additional effort required by the end user, users are less likely to use the contributor’s version of the software than the initial developer’s. Why then would a contributor choose to distribute software as a patch? The reason is because the QPL requires contributors to surrender much fewer rights to their work when that work is distributed only as a patch. The last sentence of Section 3 with the section’s two subparts follow.

The following restrictions apply to modifications:

a. Modifications must not alter or remove any copyright notices in the Software.

b. When modifications to the Software are released under this license, a non-exclusive royalty-free right is granted to the initial developer of the Software to distribute your modification in future versions of the Software provided such versions remain available under these terms in addition to any other license(s) of the initial developer.

These restrictions are quite limited. The first, Section 3(a), requires only that the patch not contain modifications that would have the effect of altering or removing copyright notices. Section 3(b) requires that the contributor permit the initial developer (Trolltech in the case of the Qt Toolkit) to gain a royalty-free license to the patch. The initial developer’s exercise of rights under this license is contingent on the developer itself releasing the code containing the modification in future versions of the Software under the QPL. Other than these restrictions, a contributor releasing a patch need not surrender any other rights. He can license the patch under any license, including a proprietary license, that does not prohibit compliance with Section 3(a) and (b).[3] Moreover, the QPL does not require that the creator of such a patch make available the source code for that patch.

Section 4 governs the distributions of executable code both with and without modifications, which is in deliberate contrast to the distribution of executable code and patches provided by Section 3. The distribution of unmodified versions of the code is already permitted by Section 2; nonetheless, the restrictions imposed by Section 4—including the requirements that source code be made available and that a copy of the license be provided with the code—should be considered to be in addition to, not in place of, the restrictions imposed by Section 2.

With regards to modified versions of the Software, Section 4 provides an alternate licensing scheme to the provision of modifications in the form of patches, as described in Section 3. Section 4 permits the distribution of modifications into machine executable code (including the code in the original Software) thereby avoiding the burdens placed on end users by distributing modifications as patches. However, by distributing modified executable code, the contributor is obligated to make the source code readily available and to license the modifications under the QPL.

4. You may distribute machine-executable forms of the Software or machine-executable forms of modified versions of the Software, provided that you meet these restrictions:

a. You must include this license document in the distribution.

b. You must ensure that all recipients of the machine-executable forms are also able to receive the complete machine-readable source code to the distributed Software, including all modifications, without any charge beyond the costs of data transfer, and place prominent notices in the distribution explaining this.

c. You must ensure that all modifications included in the machine-executable forms are available under the terms of this license.

This license also permits multiple licensing; i.e., the contributor can make his modifications available under another license, such as the GPL or a proprietary license, so long as they are also available under the QPL. As already noted, all of these restrictions, including the inclusion of the license document, apply equally to distributions of the unmodified Software as well.

Section 5 permits the user to combine the Software with other products, including libraries.

5. You may use the original or modified versions of the Software to compile, link and run application programs legally developed by you or by others.

This section does not address the distribution of such Software with other application programs, but only addresses actions by end users using the Software. Distribution of a QPL-licensed program linked with a library (under a non-QPL license) is not permitted except as described in Section 6.

Section 6 describes the restrictions applicable to distributions of the Software as linked to other software. While they do not require that such “other software” be licensed under the QPL, these restrictions require both that the source code for the other software be made available and that the “other software” be subject to a license that permits distribution and modification of that software without a fee.

6. You may develop application programs, reusable components and other software items that link with the original or modified versions of the Software. These items, when distributed, are subject to the following requirements:

a. You must ensure that all recipients of machine-executable forms of these items are also able to receive and use the complete machine-readable source code to the items without any charge beyond the costs of data transfer.

b. You must explicitly license all recipients of your items to use and re-distribute original and modified versions of the items in both machine-executable and source code forms. The recipients must be able to do so without any charges whatsoever, and they must be able to re-distribute to anyone they choose.

c. If the items are not available to the general public, and the initial developer of the Software requests a copy of the items, then you must supply one.

There is no provision for distribution of the Software as part of a larger work, as there is, for example, with the LGPL. Subsections 6(a) and (b) thus essentially require that “other software” itself be licensed under an open source license, although not necessarily the QPL. In addition, consistent with its emphasis on the rights of the initial developer, subsection 6(c) of the QPL provides that the initial developer can request a copy of the “other software” in the event the distribution is non-public or the initial developer is otherwise unable to obtain a copy.

The next section of the QPL is the " Limitation of Liability” section.

In no event shall the initial developers or copyright holders be liable for any damages whatsoever, including—but not restricted to—lost revenue or profits or other direct, indirect, special, incidental or consequential damages, even if they have been advised of the possibility of such damages, except to the extent invariable law, if any, provides otherwise.

Pairing with the “Limitation of Liability” is the "No Warranty” section.

The Software and this license document are provided AS IS with NO WARRANTY OF ANY KIND, INCLUDING THE WARRANTY OF DESIGN, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

As with the open source licenses examined previously, these provisions seek to limit the liability of the initial developer, contributors, and distributors to the maximum possible extent.

The final section, "Choice of Law,” actually contains a choice of law provision and a choice of forum provision.

This license is governed by the Laws of Norway. Disputes shall be settled by Oslo City Court.

Non-Norwegians considering adopting the QPL to license their own software would be well-advised to revise at least this part of the license.

The QPL has some interesting features. The distinction between requirements placed on modifications distributed in patches and the requirements placed on modifications distributed incorporated into executable code is meaningful and may prove useful at least in some contexts. However, with the cross-licensing of the Qt Toolkit under the GPL, and the GPL’s adoption by the KDE developers, the QPL may become less important as a license.

Artistic License (Perl)

The Artistic (or Perl Artistic) License is named because of its stated intention to allow the initial developer to maintain “artistic” control over the licensed software and derivative works created from it. The Perl License is substantially identical to the Artistic License, but it includes an additional paragraph, which provides another option for commercial distribution.

Developed by Larry Wall in the late 1980s, Perl is a ubiquitous programming language, based on C (among other languages) and is found frequently in UNIX and UNIX-based systems. It is omnipresent on the World Wide Web, with thousands, if not millions, of web sites running combinations of Perl scripts over Apache web servers. Part of Perl’s strength as a language is its ability to tie together different programs and languages that were not initially intended to work together.

Because of Perl’s ubiquity and because Perl is licensed under both the Artistic License and the GPL, programmers and users are as likely to come across the Perl License as any other open source or free software license except the GPL, BSD, or LGPL. The core, the standard Perl libraries, the optional modules, and the documentation that make up Perl were initiated by Larry Wall but have involved the contributions of thousands of people, making Perl one of the most successful open source projects to date.

Unfortunately, the Artistic License is notoriously vague and confusing. This description and commentary will, hopefully, dispel at least some of that confusion.

Like the MPL and the QPL already discussed, the Artistic License was designed for use in connection with a particular program—Perl—and not as a generally applicable license, like the BSD or MIT Licenses, or the GPL, although it certainly could be used apart from Perl. (The Artistic License is frequently used for Perl modules, including many of those on the Comprehensive Perl Archive Network at http://cpan.org.)

The first section of the Artistic License is its preamble.

The Artistic License

August 15, 1997

Preamble

The intent of this document is to state the conditions under which a Package may be copied, such that the Copyright Holder maintains some semblance of artistic control over the development of the package, while giving the users of the package the right to use and distribute the Package in a more-or-less customary fashion, plus the right to make reasonable modifications.

The Artistic License was designed in substantial part to allow Larry Wall and his group to maintain control over the Perl project, while encouraging both participation in the project and innovation outside the project.

Like the MPL, the Artistic License begins with a list of definitions.

Definitions

  • “Package” refers to the collection of files distributed by the Copyright Holder, and derivatives of that collection of files created through textual modification.

“Package” is used in place of “Software” or “Covered Code” or “Program,” but it means the same thing: the code originally issued under the applicable license and its modifications and derivative works.

  • "Standard Version” refers to such a Package if it has not been modified, or has been modified in accordance with the wishes of the Copyright Holder as specified below.

This refers to the unmodified, original version of the code and to the versions modified following certain restrictions identified by the Copyright Holder. Like the initial developer in the MPL and QPL, the Copyright Holder retains certain additional rights above those of other contributors or users of the code.

  • "Copyright Holder” is whoever is named in the copyright or copyrights for the package.

As already noted, the Copyright Holder retains certain additional privileges with regards to the Package.

  • "You” is you, if you’re thinking about copying or distributing this Package.

“You” is everybody other than the Copyright Holder.

  • “Reasonable copying fee” is whatever you can justify on the basis of media cost, duplication charges, time of people involved, and so on. (You will not be required to justify it to the Copyright Holder, but only to the computing community at large as a market that must bear the fee.)

This term adds nothing to the license. As the definition itself notes, the licensee is permitted to charge only “market price”—i.e., whatever the market will bear. As noted in Chapter 1, however, the fact that any distributee can freely distribute source and executable code tends to keep such fees low, at least for software in which the market has some interest.

  • "Freely Available” means that no fee is charged for the item itself, though there may be fees involved in handling the item. It also means that recipients of the item may redistribute it under the same conditions they received it.

As used in the license, this definition embodies the generational limitation of the Artistic License. Code that is “freely available” can be distributed under the same terms that the unmodified code was received—i.e., under the terms of the Artistic License.

Section 1 of the license provides for distribution of the source code of the Standard Version of the Package, as long as the license is distributed with it.

1. You may make and give away verbatim copies of the source form of the Standard Version of this Package without restriction, provided that you duplicate all of the original copyright notices and associated disclaimers.

Section 2 in substance permits the user to “update” a given version of the Package so as to incorporate code that is part of the Standard Version.

2. You may apply bug fixes, portability fixes and other modifications derived from the Public Domain or from the Copyright Holder. A Package modified in such a way shall still be considered the Standard Version.

The question of modifications from the “Public Domain” is somewhat unclear. As written, it means that any bug fixes, portability fixes, or other modifications to the Package—as to which copyright and other intellectual property rights either have been expressly disavowed or have lapsed through the passage of time—may be incorporated and the code will still be considered the Standard Version. This introduces a substantial element of uncertainty into what “Standard Version” means. Any one of many different programs (depending on what fixes or modifications have been applied) can equally be described as the Standard Version.

Section 2 does protect the Standard Version against the encroachment of copyright claims of persons other than the Copyright Holder; the Copyright Holder at least can feel confident that the Standard Version (assuming that all users and contributors adhere to the terms of the license) does not contain any code that the Copyright Holder does not have the power to modify, relicense, or distribute.

Section 3 addresses modifications that are not part of the Standard Version. Such modifications must be clearly marked, and, in addition, the modifier must take additional steps if the modifications are distributed outside the modifier’s own use or that of his organization.

3. You may otherwise modify your copy of this Package in any way, provided that you insert a prominent notice in each changed file stating how and when you changed that file, and provided that you do at least ONE of the following:

Clear notification of the fact that this version has changed is a precondition for any modification of the licensed work. In addition, the modifier must conform to one of the following options:

a. place your modifications in the Public Domain or otherwise make them Freely Available, such as by posting said modifications to Usenet or an equivalent medium, or placing the modifications on a major archive site such as ftp.uu.net, or by allowing the Copyright Holder to include your modifications in the Standard Version of the Package.

This is somewhat confusing. The first “sub-option,” placing the modifications in the public domain, should not be difficult. The modifier would simply be required to make the modifications publicly available and to place a notice on them that no copyright or other forms of intellectual property rights will be enforced with regards to that work.[4]

The second “sub-option” presents substantially more difficulties. “[O]therwise making [the modifications] Freely Available” would seem to require complying with the definition of “Freely Available” given earlier, requiring that the item itself be given without charge and that the persons receiving it have the right both to use the modifications and to redistribute them on terms no more restrictive than those under which they themselves received the work. Complying with these requirements would not be particularly difficult: a contributor could license the modifications under, for example, the BSD or MIT Licenses described earlier, and put them in a publicly available place for download without charge, other than for the costs of transmission or copying. In such an event, the original work, the Standard Version, would still be licensed under the Artistic License, even though the modifications would be under another license that fell within the definition of “Freely Available.”

While this course of action would be in compliance with the requirement of this “sub-option,” it is not clear that this is in fact what is required by the terms of the license. This is because the illustrative examples given after the expression of this requirement actually undermine it. “[P]osting said modifications to Usenet or an equivalent medium, or placing the modifications on a major archive site such as ftp.uu.net" by themselves will not permit any person to copy, distribute, or modify those modifications, except as permitted by the doctrine of fair use, as described in Chapter 1. Simply placing a work in a public place does not waive any protections of copyright that might otherwise be attached. As already noted, a work need not even carry a copyright notice to be protected by copyright. Without an explicit disclaimer of copyright protection (such as a public domain dedication) or a licensing agreement, prudent users will assume that such work is still protected by copyright and substantially unavailable for use. Accordingly, this part of the license could create a potentially awkward situation where a modifier, who does in fact want these modifications to be publicly available as the Artistic License seems to require, publicly posts those modifications but does not provide a license that would allow for their free use.[5]

The third “sub-option” permits a modifier to comply with the license by entering into a separate arrangement with the Copyright Holder. The purpose of this is to permit the Copyright Holder to include the modifications in the Standard Version. While having the same immediate effect as placing the modifications in the public domain, by using this “sub-option,” the modifier may be able to retain additional rights, such as the right to license exclusively the modifications for use in another application. Obviously, this depends on the arrangement with the Copyright Holder.

The second of the options prevents public distribution of the modifications but may be appropriate for many situations in which the modifier wants to have the benefit of the modified code for his own (or his own organization’s) use but does not want to surrender intellectual property rights that are associated with the modifications.

b. use the modified Package only within your corporation or organization.

The third option allows for technical modifications that will likely limit the compatibility of the modified code with the Standard Version.

c. rename any non-standard executables so the names do not conflict with standard executables, which must also be provided, and provide a separate manual page for each non-standard executable that clearly documents how it differs from the Standard Version.

This variation reflects the Artistic License’s association with Perl, with its use of programming language-specific terms, such as “standard and non-standard executables” and “manual pages.” Using this variation permits a “fork” in the development of the underlying software, with the modified version developing separate and apart from the Standard Version. In essence, modifiers are free to “take their ball and go home” but at the cost of splitting off from what is likely to be the most popular version of the underlying code, the Standard Version.

The fourth and final option is one inherent in any license: negotiating separately with the original licensor.

d. make other distribution arrangements with the Copyright Holder.

Section 4 governs the distribution of both the Standard Version and any modified versions of the Package in executable form or object code. The rights to distribution it grants are in addition to the rights granted by Section 1 to distribute the source code of the Package.

4. You may distribute the programs of this Package in object code or executable form, provided that you do at least ONE of the following:

These requirements apply any time any part of the Package is distributed in executable form, whether modified or not.

a. distribute a Standard Version of the executables and library files, together with instructions (in the manual page or equivalent) on where to get the Standard Version.

The license appears to allow each of the forms of distribution to be used no matter whether the Standard Version itself is being distributed—a Standard Version with user modifications (for example, with modifications the user has issued into the public domain)—or a modified version under Section 3(c). Accordingly, a distributor could lawfully distribute a modified version and remain in technical compliance with the license by providing only the executables and libraries of the Standard Version together with instructions on where to get the (source code presumably of the) Standard Version. This is so, even though it seems clear that distribution of a modified, nonstandard version of the code should be made under Section 4(c). This is another of the ambiguities of the license.

b. accompany the distribution with the machine-readable source of the Package with your modifications.

This option seems intended for distributions of the Standard Version where the code has been modified under the first “sub-option” described in Section 3(a)—i.e., where the modifier has placed his modifications in the public domain. This would be the most sensible way for such a distribution to be done, although, as already noted, the distributor may exercise any of the options in distributing the executable form of the Package.

accompany any non-standard executables with their corresponding Standard Version executables, giving the non-standard executables non-standard names, and clearly documenting the differences in manual pages (or equivalent), together with instructions on where to get the Standard Version.

The third option clearly mirrors Section 3(c) governing the creation of modified, nonstandard versions of the program. While not required, modifications of the Package created under Section 3(c) should be distributed under the terms of Section 4(c) to best support the purposes of the license.

Finally, as was the case with the licensing of modifications, a distributor can always negotiate a separate, permissible manner of distribution with the Copyright Holder.

d. make other distribution arrangements with the Copyright Holder.

Section 5 governs the charges that may be imposed by a distributor in connection with the distribution of the Package, whether in the Standard Version or a modified version.

5. You may charge a reasonable copying fee for any distribution of this Package. You may charge any fee you choose for support of this Package. You may not charge a fee for this Package itself. However, you may distribute this Package in aggregate with other (possibly commercial) programs as part of a larger (possibly commercial) software distribution provided that you do not advertise this Package as a product of your own.

As already noted, "reasonable copying fee” has no enforceable meaning, as the way it is defined makes reference only to the price that the market will bear. Because the license permits anyone to distribute the source code and the executable form of the Package, competition will likely impose its own limits on any fees charged by distributors, as is typically the case for open source and free software licensed programs. As is the case with the GPL and all of the other licenses already examined, this license does not prohibit agreements to support the use of the Package, which presumably would include warranties or other comparable guarantees of functionality. Finally, this section also permits distribution of the Package as part of a distribution unit with commercial (or non-commercial) software, so long as the distributor does not claim to be the author of the Package and, implicitly, so long as the other requirements of Section 4 are complied with. This last permission is subject to an important limitation in several variations of the Artistic license, including the Perl Artistic License. This limitation is described in more detail later.

Section 6 also reflects the Artistic License’s connection to Perl, a programming language, and makes explicit that programs in Perl do not fall within the scope of the license but belong to whoever generated them.

6. The scripts and library files supplied as input to or produced as output from the programs of this Package do not automatically fall under the copyright of this Package, but belong to whomever generated them, and may be sold commercially, and may be aggregated with this Package.

Section 6 further permits the distribution of libraries or scripts with the code that is so generated. Obviously, such libraries or scripts may be necessary for the code to function. This is described in the optional Section 8.

Section 7 excludes from the scope of the license C or Perl subroutines linked by the user with the Package.

7. C or perl subroutines supplied by you and linked into this Package shall not be considered part of this Package.

Section 8 of the Artistic License contains the non-endorsement clauses typical in open source and free software licenses and prevents the use of the Copyright Holder’s name in connection with the sale or distribution of modified versions of the Package or code developed from the Package under Section 6.

8. The name of the Copyright Holder may not be used to endorse or promote products derived from this software without specific prior written permission.

There is another optional Section 8 that also appears in variations of the Artistic License, most importantly, the Perl Artistic License.

8. Aggregation of this Package with a commercial distribution is always permitted provided that the use of this Package is embedded; that is, when no overt attempt is made to make this Package’s interfaces visible to the end user of the commercial distribution. Such use shall not be construed as a distribution of this Package.

Although not stated explicitly, this section is meant to address the same situation as governed by Section 6: where what is at issue is not the Package itself (i.e., the Perl scripts and libraries) being modified and distributed, but code that relies on the Package in order to properly function (i.e., software written in Perl). This Section 8 accordingly limits the generally free distribution of the source and executable codes under Section 1 and 4 respectively when that distribution is part of a commercial aggregate with the Package. In those situations, the Package may be utilized as part of the commercial program, but its interfaces (and, correspondingly, the ability to write new scripts in Perl) must be blocked from the end user. This section is presumably included to prevent commercial distributions of programs written in Perl from competing with the parallel open source distributions of Perl that are intended to encourage innovation and contributions to Perl itself. While commercial distributors are free to employ Perl’s functionality in their commercial programs, such commercial programs are shut out from Perl’s own development cycle.

Finally, Section 9 of the Artistic License contains the standard disclaimers of warranty found in most open source and free software licenses.

9. THIS PACKAGE IS PROVIDED “AS IS” AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.

The Artistic License is designed for centralized projects, much like the QPL and the MPL. Because of this and the license’s emphasis on the rights of the Copyright Holder, it is probably not suited for freeform software development projects. In addition, it has ambiguities in key terms governing modification and distribution of the licensed code. Nonetheless, it is worth taking the time to understand because of Perl’s ubiquity. Moreover, as discussed, it is not difficult for contributors to Perl (or other projects licensed under the Artistic License), despite the license’s ambiguities, to comply with both the letter and the spirit of the license.

Creative Commons Licenses

The Creative Commons series of licenses are the product of the Creative Commons Corporation, a not-for-profit organization founded in 2001 and currently based at Stanford University Law School. In December, 2002, inspired by the GPL, the Creative Commons Corporation issued a series of licenses designed to encourage creators of works to make their work available for public use. While not written for use in connection with software, the Creative Commons Licenses provide a solid basis for licensing the “open source” use of other expressions, including texts, music, web sites, and film. One of their licenses is described here to reflect that the ideas behind open source and free software licensing are applicable to more than just software. Additionally, the Creative Commons Licenses are solidly constructed and well-written: as such, they provide a good model for those who are considering drafting their own open source licenses.

In addition to the licenses, the Creative Commons Corporation provides two other services worth noting, at least briefly. First, Creative Commons offers a “Public Domain Dedication,” a sort of ultra-permissive license that denotes the creator’s surrender of all rights under copyright.[6] As noted in connection with the Artistic License, the dedication of a work to the public domain is a simple and straightforward way to permit unrestricted use of a work. Second, Creative Commons offers the "Founder’s Copyright,” a contractual undertaking between the creator and Creative Commons that mimics the effect of the original copyright laws: copyright is granted for 14 years and is renewable for one additional 14-year period.

All the Creative Commons Licenses permit the free copying and distribution of the licensed work. Some variations also permit the distribution of derivative works, some on terms that require the creator of the derivative work to license that work under the same license, in the same manner as the GPL. The full variety of Creative Commons Licenses are available at http://creativecommons.org. The one described here is the “Attribution-ShareAlike” license that permits free distribution of the original work and creation and distribution of derivative works subject to the limitation that such works themselves be subject to the terms of the Creative Commons License. The license also requires that distributions of both original and derivative works contain attributions crediting the original author of the work. This license does not distinguish between commercial and non-commercial uses of a work: one of the more common limitations in Creative Commons Licenses is a bar on commercial use of works and derivative works. By contrast to the other licenses described in this book, this Creative Commons License governs the use of a written text, not a software program.

Tip

Creative Commons released a new set of licenses on May 25, 2004. A description of the revised license follows the discussion of the original license.

Paired with each Creative Commons License is the so-called "Commons Deed,” a document which expresses in short form the privileges granted and restrictions imposed by the license. The Commons Deed for the Attribution-ShareAlike License, Version 1.0, is shown in Figure 4-1.

The Commons Deed for the Attribution-ShareAlike License, Version 1.0
Figure 4-1. The Commons Deed for the Attribution-ShareAlike License, Version 1.0

The license begins with a disclaimer of warranties by Creative Commons itself as the provider of the license.

CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS DRAFT LICENSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN “AS-IS” BASIS. CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM ITS USE.

This warranty disclaims any liability for use of the license and disclaims any implication that an attorney-client relationship has been created by the license.

The license proper begins with an introduction that states that by exercising any rights under the license, the user accepts the terms of the license, a provision modeled on the substantially similar provision in the GPL.

License

THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENSE (“CCPL” OR “LICENSE”). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE IS PROHIBITED.

BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

As discussed in Chapter 6, the absence of a signed agreement between the licensor and licensee may not bar the creation of an enforceable contract. Moreover, as noted in connection with the discussion of the GPL license, a user has no real interest in asserting that a license is unenforceable. After all, without the privileges granted by the license, the user has no right to use the work except in the very limited manner permitted by fair use.

Like the QPL, the MPL, and the Artistic License, the Creative Commons License begins with a list of definitions.

1. Definitions

a. "Collective Work" means a work, such as a periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form, along with a number of other contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this License.

The license explicitly permits distributions of the licensed work both on its own and as part of a collective work. This provision has a similar effect to the “mere aggregation” language of the GPL, although it is somewhat more explicit.[7]

b. "Derivative Work" means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted, except that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License.

Unlike a Collective Work, a Derivative Work must be distributed only under the same terms that apply to the original work.

c. "Licensor" means the individual or entity that offers the Work under the terms of this License.

d. "Original Author" means the individual or entity who created the Work.

As noted in Chapter 1, while the author or creator of a work is the person in whom copyright initially vests (except in the case of work for hire), the person enjoying rights under copyright frequently will not be the same person who originally created the work because of contractual assignment or otherwise. This license distinguishes between the original author and the holder of the copyright, and it gives rights to the Original Author.

e. "Work" means the copyrightable work of authorship offered under the terms of this License.

This term is self-explanatory.

f. "You" means an individual or entity exercising rights under this License who has not previously violated the terms of this License with respect to the Work, or who has received express permission from the Licensor to exercise rights under this License despite a previous violation.

As provided by Section 7, the license terminates upon breach of any provision by the licensee.

The next section reiterates what is already the case: that the license does not prohibit or limit any rights that could be exercised under the doctrine of fair use or first sale doctrines.[8]

2. Fair Use Rights. Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.

Section 3 of the license provides the critical operating language of the license.

3. License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below:

a. to reproduce the Work, to incorporate the Work into one or more Collective Works, and to reproduce the Work as incorporated in the Collective Works;

This permits free distribution of the original work, whether as part of a Collective Work or otherwise.

b. to create and reproduce Derivative Works;

The creation and distribution of derivative works is subject to the important limitation, as described in Section 4(b), that such derivative works must be distributed under the same license that governs the distribution of the original work, which is this Creative Commons License.

c. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission the Work including as incorporated in Collective Works;

The rights to perform a given work are generally governed separate and apart from the rights to copy and distribute a work. For example, the purchase of a hardcopy of the text of a play does not convey the right to publicly perform that play. This subsection includes the grant of such performance rights in the scope of the license.

d. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission Derivative Works;

This provision conveys performance rights for derivative works.

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats. All rights not expressly granted by Licensor are hereby reserved.

This grants rights to use or distribute the work in all media, including those not yet invented.

The next section identifies the restrictions applicable to exercise rights under the license.

4. Restrictions. The license granted in Section 3 above is expressly made subject to and limited by the following restrictions:

a. You may distribute, publicly display, publicly perform, or publicly digitally perform the Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform.

Like the other licenses already described, this provision requires that the terms of the license be provided along with the licensed work. As an alternative, however, this license also provides that the distributor may include a “Uniform Resource Identifier,” a URL that points to the text of the license.

You may not offer or impose any terms on the Work that alter or restrict the terms of this License or the recipients’ exercise of the rights granted hereunder. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties.

Like the GPL, the Creative Commons License bars the inclusion of any condition that “alters or restricts” the terms of the license. Accordingly, work licensed under the Creative Commons cannot include work licensed under other licenses that impose any restrictions, such as the GPL or the MPL License already discussed.

You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement.

This prohibits any distributor from distributing the work in a manner intended to prevent copying—such distributions frustrate the purpose of the license. This could prevent, for example, distribution of the work or derivative in some electronic book formats that contain copy protection, or in CD or DVD formats that are designed to frustrate digital copying.

The above applies to the Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Work itself to be made subject to the terms of this License.

This reiterates the exclusion from the effect of the license on other works contained in a Collective Work.

If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any reference to such Licensor or the Original Author, as requested. If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any reference to such Licensor or the Original Author, as requested.

This right permits a Licensor to disassociate either herself and/or the Original Author from association with a Collective Work or a Derivative Work, if so desired. Note that the right belongs to the Licensor, not the Original Author. A subsequent restriction requires attribution to be given to the Licensor of the Original Work, unless the Licensor notifies the Licensee of a contrary desire.

Section 4(b) imposes the same restrictions on the distribution or performance of Derivative Works that Section 4(a) imposes on the Original Work. Moreover, by imposing these obligations on all potential creators of Derivative Works, the license requires that Derivative Works be distributed only under the terms of this license, with all the grants of rights and restrictions that this entails. This generational limitation is substantially similar to the copyleft imposed by the GPL.

b. You may distribute, publicly display, publicly perform, or publicly digitally perform a Derivative Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of each Derivative Work You distribute, publicly display, publicly perform, or publicly digitally perform. You may not offer or impose any terms on the Derivative Works that alter or restrict the terms of this License or the recipients’ exercise of the rights granted hereunder, and You must keep intact all notices that refer to this License and to the disclaimer of warranties. You may not distribute, publicly display, publicly perform, or publicly digitally perform the Derivative Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement. The above applies to the Derivative Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Derivative Work itself to be made subject to the terms of this License.

The “right of disassociation” described in Section 4(b) already includes the right to disassociate from Derivative Works as well as Original Works.

Section 4(c) contains a requirement of attribution that distinguishes this license from other Creative Commons Licenses. In both the original and Derivative Works, the Original Author of the work (not necessarily the Licensor) must be given credit appropriate to the format of the distribution, unless, under Section 4(b), the Licensor requests otherwise.

c. If you distribute, publicly display, publicly perform, or publicly digitally perform the Work or any Derivative Works or Collective Works, You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., “French translation of the Work by Original Author,” or “Screenplay based on original Work by Original Author”). Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit.

Section 5 contains the representations and warranties provisions applicable to the license. Unlike every other license examined so far, the Creative Commons License contains a warranty of non-infringement, albeit one limited by the representation that the original Licensor has undertaken only “reasonable inquiry” to ensure that the Work does not contain infringing material or anything that could be considered defamatory or damaging to the privacy rights of any person.

5. Representations, Warranties and Disclaimer

a. By offering the Work for public release under this License, Licensor represents and warrants that, to the best of Licensor’s knowledge after reasonable inquiry:

i. Licensor has secured all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder without You having any obligation to pay any royalties, compulsory license fees, residuals or any other payments;

ii. The Work does not infringe the copyright, trademark, publicity rights, common law rights or any other right of any third party or constitute defamation, invasion of privacy or other tortious injury to any third party.

The obligation imposed by this provision is substantial. No potential Licensor should use this version of the Creative Commons license without seriously considering the obligations imposed by this section. If the work to be licensed is entirely the creation of the Licensor, and the Licensor can fairly satisfy himself that he did not infringe on other copyrights and that the work is not defamatory or otherwise injurious to third parties, then this provision may provide no difficulty. In the case of an aesthetic work (a play, short story, or poem), that would be a sufficient inquiry and the Licensor could proceed to use the Creative Commons License with confidence. In the case of software or a similar work, however, because of the vague and potentially broad application of software patent rights, no Licensor—without exhaustive review and consultation with an experienced attorney—could possibly feel confident that a particular piece of code does not infringe on any valid patent. Accordingly, the inclusion of such representations in licenses applicable to software is not recommended. While the Licensor need only to undertake “reasonable inquiry” to ensure that the work is non-infringing, the licensor is still making an affirmative representation upon which others may reasonably rely. Version 2.0 of the Creative Commons License does not contain these representations and is almost certainly a better license to use under such circumstances.

Moreover, this representation presents substantial hazards for the licensing of any work under this license if that work includes anything created by another person, including work putatively in the public domain. In the event such work turns out to infringe on the copyright of any third party, the Licensor would be liable not only to that third party whose rights have been infringed (as is the case with every open source and free software license, regardless of the language of that license) but to all the licensees. This could result in the Licensor becoming responsible for a potentially enormous amount of damages—for example, if a licensee relied on the rights granted under the license in entering into a business opportunity, which it can no longer pursue after discovery of the violation.

In sum, in making contractual representations, one must exercise significant caution. Given the potential exposure to liability, Licensors should approach this section with care.

Section 5(b) contains a standard disclaimer of warranties, excepting only the warranty of non-infringement just discussed.

b. EXCEPT AS EXPRESSLY STATED IN THIS LICENSE OR OTHERWISE AGREED IN WRITING OR REQUIRED BY APPLICABLE LAW, THE WORK IS LICENSED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING THE CONTENTS OR ACCURACY OF THE WORK.

Section 6 contains the disclaimer of liability, again, subject to the exception for the warranty of non-infringement.

6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, AND EXCEPT FOR DAMAGES ARISING FROM LIABILITY TO A THIRD PARTY RESULTING FROM BREACH OF THE WARRANTIES IN SECTION 5, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Section 7 governs termination of the license, which essentially occurs upon any breach by the licensee. As is the case with the GPL, the breach by one licensee does not result in the termination of the license to those persons to whom the licensee has distributed the Original Work, a Derivative Work, or a Collective Work, so long as those licensees themselves remain in compliance with the license.

7. Termination

a. This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License. Individuals or entities who have received Derivative Works or Collective Works from You under this License, however, will not have their licenses terminated provided such individuals or entities remain in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License.

Section 7(b) explicates what is implicit in every license, which is that the licensor can license the work to others under different terms than those contained in the license.

b. Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

This ability to “cross-license” or “relicense” the work does not affect any license previously granted, and this provision should be of little comfort to potential licensors with cold feet.

Section 8, appropriately labeled Miscellaneous, contains a number of provisions that are redundant of provisions already discussed or irrelevant in all but a very small number of possible scenarios involving the license.

8. Miscellaneous

a. Each time You distribute or publicly digitally perform the Work or a Collective Work, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License.

b. Each time You distribute or publicly digitally perform a Derivative Work, Licensor offers to the recipient a license to the original Work on the same terms and conditions as the license granted to You under this License.

This is entirely redundant to Section 3. Any “You” under the license is someone with access both to the Work (or a Derivative or Collective Work) and the license itself—i.e., everyone who would fall into the descriptions Section 8(a) and (b).

Section 8(c) is a savings clause typical in commercial contracts.

c. If any provision of this License is invalid or unenforceable under applicable law, it shall not affect the validity or enforceability of the remainder of the terms of this License, and without further action by the parties to this agreement, such provision shall be reformed to the minimum extent necessary to make such provision valid and enforceable.

Section 8(d), in phrasing again typical of commercial contracts, prevents oral modifications to the license and requires any waivers or amendments to be written.

e. No term or provision of this License shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent.

Finally, Section 8(e) provides a " merger clause” indicating that the license is the entire agreement between the parties, superseding any prior agreement, whether oral or written.

e. This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You.

Following the last of the license’s sections is another set of disclaimers and limitations by Creative Commons itself, restating and expanding the restrictions announced at the beginning of the license.

Creative Commons is not a party to this License, and makes no warranty whatsoever in connection with the Work. Creative Commons will not be liable to You or any party on any legal theory for any damages whatsoever, including without limitation any general, special, incidental or consequential damages arising in connection to this license. Notwithstanding the foregoing two (2) sentences, if Creative Commons has expressly identified itself as the Licensor hereunder, it shall have all rights and obligations of Licensor.

Except for the limited purpose of indicating to the public that the Work is licensed under the CCPL, neither party will use the trademark “Creative Commons” or any related trademark or logo of Creative Commons without the prior written consent of Creative Commons. Any permitted use will be in compliance with Creative Commons’ then-current trademark usage guidelines, as may be published on its website or otherwise made available upon request from time to time.

Creative Commons may be contacted at http://creativecommons.org/.

Creative Commons issued a new series of licenses on May 25, 2004. The Attribution-ShareAlike Version 2.0 is described here and shown in Figure 4-2. Because most of the license remains unchanged, the subsequent commentary only addresses the new features of the license. For purposes of completeness, however, the license is provided in its entirety. The first change to the license is one that arises under the choose-your-own-license menu on the Creative Commons web site. Because the overwhelming preference among its users for licenses is to require attribution, attribution of the work to its original author is now a standard feature of the license.

The Commons Deed for the Attribution-ShareAlike License, Version 2.0
Figure 4-2. The Commons Deed for the Attribution-ShareAlike License, Version 2.0

CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS LICENSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN “AS-IS” BASIS. CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM ITS USE.

License

THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENSE (“CCPL” OR “LICENSE”). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE OR COPYRIGHT LAW IS PROHIBITED.

BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

1. Definitions

a. "Collective Work" means a work, such as a periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form, along with a number of other contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this License.

b. "Derivative Work" means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted, except that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License. For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image (“synching”) will be considered a Derivative Work for the purpose of this License.

In order to use music in combination with a moving image under United States copyright law, the user must generally arrange to acquire “synchronization rights” from the author of the musical work and to pay synchronization royalties for such use. The last sentence of this definition, not present in Version 1.0 of the license, makes clear that such a use of the licensed work is included in the rights granted by the license.

c. "Licensor" means the individual or entity that offers the Work under the terms of this License.

d. "Original Author" means the individual or entity who created the Work.

e. "Work" means the copyrightable work of authorship offered under the terms of this License.

f. "You" means an individual or entity exercising rights under this License who has not previously violated the terms of this License with respect to the Work, or who has received express permission from the Licensor to exercise rights under this License despite a previous violation.

g. "License Elements" means the following high-level license attributes as selected by Licensor and indicated in the title of this License: Attribution, ShareAlike.

2. Fair Use Rights. Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.

3. License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below:

a. to reproduce the Work, to incorporate the Work into one or more Collective Works, and to reproduce the Work as incorporated in the Collective Works;

b. to create and reproduce Derivative Works;

c. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission the Work including as incorporated in Collective Works;

d. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission Derivative Works.

The following subsection, 3(e), was added to Version 2.0 to address specific applications of copyright to musical compositions.

e. For the avoidance of doubt, where the work is a musical composition:

i. Performance Royalties Under Blanket Licenses . Licensor waives the exclusive right to collect, whether individually or via a performance rights society (e.g. ASCAP, BMI, SESAC), royalties for the public performance or public digital performance (e.g. web-cast) of the Work.

Most publishers of musical works are members of one of the three major performing rights societies, ASCAP, BMI, and SESAC. These organizations collect royalties from the performance of musical works in situations in which it would be administratively difficult for an individual publisher to collect, such as from radio stations and jukeboxes. These organizations then distribute those funds according to complex formulas among their members. This subsection makes clear that the licensor does not intend to enforce such rights against its licensees or to authorize one of the performing rights societies to do so on its behalf.

ii. Mechanical Rights and Statutory Royalties . Licensor waives the exclusive right to collect, whether individually or via a music rights society or designated agent (e.g. Harry Fox Agency), royalties for any phonorecord You create from the Work (“cover version”) and distribute, subject to the compulsory license created by 17 USC Section 115 of the US Copyright Act (or the equivalent in other jurisdictions).

United States copyright law also provides authors of musical composition the right to collect royalties from artists who perform those works and distribute copies on fixed media, such as phonograph records or compact discs. As is the case with synchronization rights and performance rights, Version 2.0 of the license makes clear that the Licensor intends to grant those rights without payment of royalties to its licensees.

f. Webcasting Rights and Statutory Royalties . For the avoidance of doubt, where the Work is a sound recording, Licensor waives the exclusive right to collect, whether individually or via a performance-rights society (e.g. SoundExchange), royalties for the public digital performance (e.g. webcast) of the Work, subject to the compulsory license created by 17 USC Section 114 of the US Copyright Act (or the equivalent in other jurisdictions).

This extends the waiver of the right to collect royalties for performance rights for Web broadcasts of the Work.

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats. All rights not expressly granted by Licensor are hereby reserved.

4. Restrictions. The license granted in Section 3 above is expressly made subject to and limited by the following restrictions:

a. You may distribute, publicly display, publicly perform, or publicly digitally perform the Work only under the terms of this License, and You must include a copy of, or the Uniform Resource Identifier for, this License with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly digitally perform. You may not offer or impose any terms on the Work that alter or restrict the terms of this License or the recipients’ exercise of the rights granted hereunder. You may not sublicense the Work. You must keep intact all notices that refer to this License and to the disclaimer of warranties. You may not distribute, publicly display, publicly perform, or publicly digitally perform the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement. The above applies to the Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Work itself to be made subject to the terms of this License. If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any reference to such Licensor or the Original Author, as requested. If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any reference to such Licensor or the Original Author, as requested.

b. You may distribute, publicly display, publicly perform, or publicly digitally perform a Derivative Work only under the terms of this License, a later version of this License with the same License Elements as this License, or a Creative Commons iCommons license that contains the same License Elements as this License (e.g. Attribution-ShareAlike 2.0 Japan). You must include a copy of, or the Uniform Resource Identifier for, this License or other license specified in the previous sentence with every copy or phonorecord of each Derivative Work You distribute, publicly display, publicly perform, or publicly digitally perform. You may not offer or impose any terms on the Derivative Works that alter or restrict the terms of this License or the recipients’ exercise of the rights granted hereunder, and You must keep intact all notices that refer to this License and to the disclaimer of warranties. You may not distribute, publicly display, publicly perform, or publicly digitally perform the Derivative Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement. The above applies to the Derivative Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Derivative Work itself to be made subject to the terms of this License.

Section 4(b) of Version 2.0 explicitly permits the transnational licensing of works, so long as each of the License Elements in the “new” license are contained in the original license. This permits, however, essentially only the "relicensing” of the Work under other, substantially identical, Creative Commons Licenses. Section 4(b) also permits such “relicensing” under later versions of the same Creative Commons license, a feature not present in Version 1.0.

c. If you distribute, publicly display, publicly perform, or publicly digitally perform the Work or any Derivative Works or Collective Works, You must keep intact all copyright notices for the Work and give the Original Author credit reasonable to the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; to the extent reasonably practicable, the Uniform Resource Identifier, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work; and in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., “French translation of the Work by Original Author,” or “Screenplay based on original Work by Original Author”). Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit.

Section 4(c) of Version 2.0 adds a new requirement in providing attribution to the Author by requiring that the Licensee include a URI or hyperlink directing a future user to the Original Work. This requirement is subject to some limitations. First, the link must be provided by the Author. Licensees have no obligation to track down the correct URI if none is provided. Second, such linking must be “reasonably practicable,” that is, the hyperlink should function and should direct the user to that Original Work. Third, that hyperlinked reference must contain the copyright and licensing information associated with the Original Work.

In what is likely the most substantial departure from Version 1.0, Version 2.0 of the license provides for no warranty of non-infringment as part of the license. Version 2.0 also specifically disclaims warranties of merchantability, fitness for a particular purpose, accuracy, and the absence of defects. The license otherwise contains similar disclaimers as to representations and warranties and limitations on liability.

5. Representations, Warranties and Disclaimer

UNLESS OTHERWISE AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE WORK AS-IS AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE MATERIALS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU.

6. Limitation on Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU ON ANY LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. Termination

a. This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License. Individuals or entities who have received Derivative Works or Collective Works from You under this License, however, will not have their licenses terminated provided such individuals or entities remain in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License.

b. Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

8. Miscellaneous

a. Each time You distribute or publicly digitally perform the Work or a Collective Work, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License.

b. Each time You distribute or publicly digitally perform a Derivative Work, Licensor offers to the recipient a license to the original Work on the same terms and conditions as the license granted to You under this License.

c. If any provision of this License is invalid or unenforceable under applicable law, it shall not affect the validity or enforceability of the remainder of the terms of this License, and without further action by the parties to this agreement, such provision shall be reformed to the minimum extent necessary to make such provision valid and enforceable.

d. No term or provision of this License shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent.

e. This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You.

Sections 7 and 8 of Version 2.0 of the license are identical to those same provisions in Version 1.0.

The Creative Commons project is just getting started. It remains an open question whether the ideas behind the open source and free software licensing movement will have the same impact on aesthetic works that they had on software. Nonetheless, the Creative Commons Licenses provide a good foundation for the attempt.

Tip

There are also a few licenses meant for documentation, notably the GNU Free Documentation License (GFDL), available at http://www.gnu.org/copyleft/fdl.html, and the Open Publication License (OPL), available at http://www.opencontent.org/openpub/. These are more tightly focused on technical documentation and publishing, but offer free and open source analogs to this aspect of the software development world.



[1] A QPL-licensed piece of software can still operate on the same system as software licensed under another license. For exampe, the KDE program may run on a GPL-licensed system: as already noted, the simple operation of a program is outside the scope of the GPL. Similarly, the operation of the GPL software, assuming it does not link with the QPL licensed software, does not violate the QPL.

[2] The importance of libraries and linking are described in detail in connection with the LGPL in Chapter 3.

[3] For example, because of the GPL’s bar on any deviations from its terms, the contributor could not license a patch under the GPL and distribute it for use with a QPL-licensed piece of software.

[4] The public domain is discussed in more detail later. A sample Public Domain Dedication can be found at http://creativecommons.org/licenses/publicdomain/. There is some uncertainty about the effectiveness of such public domain dedication, however.

[5] The fact that this happens all the time in open source development does not eliminate the possibility of a misunderstanding that could lead to a legal dispute. A contributor may actually not know that he is “licensing” work that he submits to an open source or free software project, or he may think better of it after having done so, and take some action to claw his submission back. This situation seems to rarely, if ever, arise. Nonetheless, those considering taking leadership positions in such projects should take reasonable efforts to make sure that contributors are aware of the licensing terms applicable to the project.

[6] There is some question as to whether the Creative Commons Public Domain Dedication is legally effective as a contract because there is no exchange of consideration. The importance of mutual consideration is discussed in more detail in Chapter 6. Although the Public Domain Dedication may not be of binding legal effect as a license, there may be other legal methods by which it could be enforced, including the theory of reliance. Before making a Public Domain Dedication, a creator of a work may want to consider using instead a relatively unrestrictive license such as the BSD or MIT licenses described in Chapter 2. In any event, before relying on a work falling within the scope of such a dedication, a user should contact a knowledgeable lawyer to address its enforceability in the particular circumstances presented.

[7] Section 2(c) of the GPL reads, in part, “mere aggregation of another work not based on the Program with the Program (or with a work based on the Program) on a volume of a storage or distribution medium does not bring the other work under the scope of this License.”

[8] The first sale doctrine guarantees certain rights to purchasers of physical expressions of copyrighted work, including the right to loan that copy to others, to resell it, and to make personal use of it.

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