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Sun's Proposed CDDL License - Feedback Requested
Sunday, December 05 2004 @ 12:36 PM EST

Sun has just submitted a newly created license, the CDDL, to OSI for approval. Or not. They don't say officially if this is the license for an open source Solaris, but, well, duh. Probably it depends on if it is approved or not, for starters. But it's not a definite, and they would like suggestions and input on the license, separate from any particular product. So, let's read it as a proposed license for anything. Is it an improvement over current licenses or not? That is the question. Also, should it be approved by OSI? It's taken from the language of the Mozilla Public License but is an attempt to improve it from Sun's standpoint. So I have drawn up a little chart, so you can compare and provide meaningful input.

It's not compatible with the GPL, according to Sun representative, Claire Giordano:

"'Like the MPL, the CDDL is not expected to be compatible with the GPL, since it contains requirements that are not in the GPL (for example, the 'patent peace' provision in section 6). Thus, it is likely that files released under the CDDL will not be able to be combined with files released under the GPL to create a larger program,' Giordano said."

So what, you say? Other licenses are not either. But the whole idea of Open Source is that it's, well, open. For GNU/Linux and Solaris to benefit each other, for example, they'd need to choose a licence that allows that cross-pollination. So Sun is letting us know that it is erecting a Keep Out sign as far as GNU/Linux is concerned with this license, if it does choose it for Solaris, and that has consequences, as Linus points out:

"'I think the real problem Sun faces is not the license details as much as trying to build up enough of a community around the source base that the license would matter,' Torvalds told eWEEK.com.

"'The problem Sun has in that regard is actually somewhat visible in the license: They are not going to open-source everything, and the reason I say that is "visible in the license" is that the license clearly allows linking with other proprietary code, something Sun needs to be able to do itself,' he said. . . .

"As a result, Torvalds said, it will be tough for Sun to find support in the open-source software community. 'The community that Sun must be hoping to gather round Solaris will likely always play second fiddle to Sun itself. … They'll have a very hard time getting any real community.'"

If this license is attached to Solaris, Sun would be creating its own little community, and the word "little" is probably operative. This is not a sin, to want your own community, although it's probably not going to work out well for them, as a result, in my view, because the world has already voted, and it has voted for GNU/Linux over Unix. But let's presume that this is what Sun is knowingly deciding it might wish to do and that it has small dreams. That is a choice they are free to make, after all, since it is their code. But it does make one ask, what is Sun's problem with the GPL and the LGPL? Or is it Sun that has the problem?

Sun says, in effect, why criticize us? We are only doing what the MPL does. So any analysis seems to require the question, In what circumstances would it be useful or acceptable to use this license instead of the GPL, if any? There might be situations you can imagine where another license would be useful in the eyes of some. Is this a license suitable for such situations? It is trying to be.

The only way to analyze the license, then, meaningfully is to look at it without any particular product attached and to posit as a given that there might be some valid reasons in some circumstances to reject the GPL and try to imagine what they might be and whether this license addresses those circumstances well. Personally, I strongly favor the GPL, but if it were ideal for all circumstances, there would be no LGPL and they wouldn't be working on the next version. For the sake of analysis, then, I am willing to set that aside long enough to analyze and provide feedback, even if the final analysis turns out to be that only the GPL will do, from the standpoint of the community.

They already feel that the license addresses their corporate interests, but what about the community's interests? Who is addressing that? They are trying to address that, I'm sure, in their eyes, but that is what feedback is for, to let them know if they succeeded and if not, how to improve the license. They used the Mozilla Public License as a beginning template, as I said, but there are some differences, some fairly inconsequential, marked in blue, and some substantive, marked in brown. Here is what they have in mind to try to do, from their CDDL Description and Rationale page:

"We chose to use the MPL as a base, since it already had a number of attributes we were looking for in a license:

  • Requirement that the source of modifications be made available; this helps encourage code reuse and a vibrant community.
  • Requirement that the source of modifications be shared under the open source license; this helps encourage that open source remains open source.
  • Ability to distribute executables under a different license; this gives businesses more flexibility in licensing their derived works.
  • A 'files based' definition of modifications and covered software; this makes it easy to combine code with code distributed under different licenses.
  • Explicit patent license; this makes it easier for businesses to use the software without concerns over patent rights.
  • Provision for termination of rights in response to patent claims (i.e. 'patent peace' provision); this helps discourage patent litigation amongst the community, which we felt to be A Good Thing.

"The MPL came closest to meeting our needs. We felt that it had a number of issues, though, which prevented us from simply using that license or one of its variants.

"Once we embarked down the path of creating a new license, we focused on certain high level goals. We wished to create a license that was simpler, less burdensome for contributors, clear and consistent in the use of terms and language, and that was as reusable and general as possible. In addition, we made a number of specific improvements, a few of which are highlighted here.

  • Fixed the 'Effect of New Versions' problem. We added an option to make Covered Software available under a specific version of the license, rather than allowing the use of future license versions. This change was made to make the license more reusable by others: it addresses the concern that the license steward could change the terms of the license in ways that are not compatible with a community's (and the Initial Developer's) values and objectives.
  • Narrowed the 'patent peace' provisions to cover only software released under this license. We felt that this would make the license more acceptable to a diverse community of contributors, whether large or small. However, we believe that 'patent peace' has an important role to play in open source licenses, which is why we have strengthened the remaining such provision.
  • Simplified many of the Required Notices (or in a few cases, removed the requirement) since they seemed overly specific and burdensome.
  • Clarified the definition of Modifications, to make it easier for readers to understand what is covered by the license and what is not."

The defense that they used the MPL as their template doesn't mean either addresses the new threat on the horizon, and that is the patent threat. What constitutes a truly effective patent defense clause? There is one section in Sun's proposed license, clause 6, Termination, that is designed to address patents and that I notice particularly as needing tweaking. You may notice other things. To help us understand their purpose, here is Sun's explanation for why it chose the wording it did, and with respect to the termination clause, it says this:

6.2(a). Changed trigger from initiation of litigation to assertion of a patent infringement claim, for clarity. Also, created an inline definition of Participant Software to account for the fact that the claim might be against either a Contributor Version or against the Original Software and used this definition throughout the section. Clarified a potential ambiguity by adding “directly or indirectly” on line 6 in the first sentence, so that if your rights from this license are terminated due to your assertion of a patent infringement claim, you cannot reacquire those same rights indirectly.

We removed MPL's 8.2(b), which revoked license rights if patent claims are made against any product of a Participant, not just code released under this license. We're trying to build a community of diverse contributors, large and small, including commercial contributors, and felt that this section would be a hindrance to commercial adoption. However, we believe that “patent peace” has an important role to play in open source licenses, which is why we have strengthened the provisions in 6.2(a) and 6.4.

How would this clause work out, from the standpoint of a corporation wishing to use software under this license? What about developers? What if you live in a country that doesn't recognize software patents? And what is the definition of "reasonable"? Without some guarantee that patents will be offered on a royalty-free basis and with terms that are open-source compatible, how can anyone trust a clause like this? And it is a clause that assumes you have a lawyer or can afford one to do the negotiations that are assumed and apparently required. The negotiations are triggered, as I understand it, by a mere assertion of an infringement, not by an actual lawsuit. That may be good or bad, depending on your point of view, but to me it certainly implies a reverence for software patents that not all may share. And exactly what is a "reasonable royalty" for Open Source software? Since Sun is, I gather, asking for input by announcing this submission publicly, let's be positive and assume that they mean exactly that.

For contrast, here is OSL's termination clause:

10) Termination for Patent Action. This License shall terminate automatically and You may no longer exercise any of the rights granted to You by this License as of the date You commence an action, including a cross-claim or counterclaim, against Licensor or any licensee alleging that the Original Work infringes a patent. This termination provision shall not apply for an action alleging patent infringement by combinations of the Original Work with other software or hardware."

"Any of the rights" indicates you lose both copyright and patent licenses. So you stand to lose a great deal more if you bring a patent infringement action. Here the patent assailant must decide whether immediate loss of the software is worth pursuing a patent claim against anyone concerning this software. The termination of the license to the software is the developer's price for the assailant suing him or his customers, a “can’t have your cake and eat it too” clause.

And here, for further contrast, is IBM's Common Public License's patent defense clause, starting with commentary from Larry Rosen's book, "Open Source Licensing":

"The CPL license terminates automatically under two situations as of the date that a Recipient initiates certain kinds of patent litigation.

"Many commercial open source licenses contain this kind of patent defense clause. A company such as IBM, with its vast portfolio of patents, wants to be able to terminate patent licenses when it is sued for patent infringement. That defensive use of patents is an important part of such companies' patent strategies.

"This is the first situation:

. . . . If Recipient institutes patent litigation against a Contributor with respect to a patent applicable to software (including a cross-claim or counterclaim in a lawsuit), then any patent licenses granted by that Contributor to such Recipient under this Agreement shall terminate as of the date such litigation is filed. (CPL section 7).

"This termination provision applies to 'litigation against a Contributor' and 'a patent applicable to software,' regardless of whether it is applicable to software licensed under the CPL.

"This is the second situation:

. . . . If Recipient institutes patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Program itself (excluding combinations of the Program with other software or hardware) infringes such Recipient's patent(s), then such Recipient's rights granted under Section 2(b) shall terminate as of the date such litigation is filed (CPL section 7.)

"This termination provision applies to litigation against 'any entity' and 'a patent applicable to the Program' only.

"The first provision terminates 'any patent licenses granted by that Contributor to such Recipient under this Agreement.' The second provision terminates 'rights granted under Section 2(b).' . . .

Notice also that the termination provisions apply to the patent license only; the copyright license remains. . . . The CPL license provides no patent defense benefits to a licensor without patents."

That's my concern. How many FOSS developers have patents of their own? And while companies are busy coming up with patent defense clauses that reflect their concerns, what about protecting the little guy? Where is the clause that protects him?

Let's imagine the following scenario. Microsoft arranges for a patent pool, a law firm or a company that does nothing but sue over their patent portfolio, to sue Linux for patent infringement. They surely don't care about using any patents in Linux, so what do they have to lose from any of the corporate-sponsored patent defense clauses we have outlined here? What's to negotiate? How much to pay *them* is the only question on the table that has any muscle. Now what?

I think it's time, therefore, that the community come up with strategies that protect their actual interests, as opposed to corporate interests. So let's get started and the way to do that is to imagine scenarios and then think up ways to block. It's easy to find fault, of course, and when I started writing about this license, I wrote some snarky words about Microsoft being Dr. Frankenstein and Sun Igor, and this being Sun's "Yes, Master" license, but that's not a positive way of addressing the real issue, which is: what is a good license for the new reality? If this isn't it, what is? What is a good patent defense clause from the standpoint of the community, not from the standpoint of patent-holding corporations? They may not care about that, so we have to.

So, to get the conversation going, here's the chart, which I hope you find helpful in providing useful feedback, if for no other purpose than to educate corporations as to what the FOSS community feels is important. I also have the chart with a third column showing the explanations Sun provides for each change from its Description and Rationale page.

To do that, imagine the following scenario: a college kid in Finland decides to write his own operating system, and he decides he might like to use the CDDL as its license. How would that play out? You don't think it is worthwhile to protect the next Linus from patent infringement claims? Then you aren't thinking deeply enough about where creativity springs up and how vital it is to protect real innovation outside the corporate framework. They are busy thinking up clauses to protect what already exists, from the standpoint of their corporate interests, but no one, from my standpoint, (except for the OSL patent defense clause and the GPL, which is a license that considers users, not just developers) is looking at protecting the public's interest in future innovation, particularly innovation from individuals who, as we have seen, are fully capable of coming up with innovations that can turn the IT world upside down. That isn't something to throw away just to protect someone's corporate interests, if you are looking at the big picture.

UPDATE: Note that I have on Jan. 28, 2005 updated the CDDL clauses, to incorporate revisions made by Sun to the original draft and so it now reflects the wording in the final CDDL license. Words in purple represent those additions. Deletions are marked by striking the words dropped.

# Mozilla Public License Vs. 1.1 Common Development and Distribution License Vs. 1.0
1 Definitions. Definitions.
1.01 "Commercial Use" means distribution or otherwise making the Covered Code available to a third party. No equivalent definition.
1.1 "Contributor" means each entity that creates or contributes to the creation of Modifications. “Contributor” means each individual or entity that creates or contributes to the creation of Modifications.
1.2 "Contributor Version" means the combination of the Original Code, prior Modifications used by a Contributor, and the Modifications made by that particular Contributor. “Contributor Version” means the combination of the Original Software, prior Modifications used by a Contributor (if any), and the Modifications made by that particular Contributor.
1.3 "Covered Code" means the Original Code or Modifications or the combination of the Original Code and Modifications, in each case including portions thereof. “Covered Software” means (a) the Original Software, or (b) Modifications, or (c) the combination of files containing Original Software with files containing Modifications, in each case including portions thereof.
1.4 "Electronic Distribution Mechanism" means a mechanism generally accepted in the software development community for the electronic transfer of data. Undefined.
1.5/1.4 1.5. "Executable" means Covered Code in any form other than Source Code. “Executable” means the Covered Software in any form other than Source Code.
1.6/1.5 1.6. "Initial Developer" means the individual or entity identified as the Initial Developer in the Source Code notice required by Exhibit A. “Initial Developer” means the individual or entity that first makes Original Software available under this License.
1.7/1.6 1.7. "Larger Work" means a work which combines Covered Code or portions thereof with code not governed by the terms of this License. 1.6. “Larger Work” means a work which combines Covered Software or portions thereof with code not governed by the terms of this License.
1.8/1.7 1.8. "License" means this document. 1.7. “License” means this document.
1.8.1/1.8 1.8.1. "Licensable" means having the right to grant, to the maximum extent possible, whether at the time of the initial grant or subsequently acquired, any and all of the rights conveyed herein. 1.8. “Licensable” means having the right to grant, to the maximum extent possible, whether at the time of the initial grant or subsequently acquired, any and all of the rights conveyed herein.
1.9 "Modifications" means any addition to or deletion from the substance or structure of either the Original Code or any previous Modifications. When Covered Code is released as a series of files, a Modification is:
A. Any addition to or deletion from the contents of a file containing Original Code or previous Modifications.
B. Any new file that contains any part of the Original Code or previous Modifications.
“Modifications” means the Source Code and Executable form of any of the following:
A. Any file that results from an addition to, deletion from or modification of the contents of a file containing Original Software or previous Modifications;
B. Any new file that contains any part of the Original Software or previous Modification; or
C. Any new file that is contributed or otherwise made available under the terms of this License.
1.10 "Original Code" means Source Code of computer software code which is described in the Source Code notice required by Exhibit A as Original Code, and which, at the time of its release under this License is not already Covered Code governed by this License. “Original Software” means the Source Code and Executable form of computer software code that is originally released under the terms of this License.
1.10.1/1.11 1.10.1. "Patent Claims" means any patent claim(s), now owned or hereafter acquired, including without limitation, method, process, and apparatus claims, in any patent Licensable by grantor. 1.11. “Patent Claims” means any patent claim(s), now owned or hereafter acquired, including without limitation, method, process, and apparatus claims, in any patent Licensable by grantor.
1.11/1.12 1.11. "Source Code" means the preferred form of the Covered Code for making modifications to it, including all modules it contains, plus any associated interface definition files, scripts used to control compilation and installation of an Executable, or source code differential comparisons against either the Original Code or another well known, available Covered Code of the Contributor's choice. The Source Code can be in a compressed or archival form, provided the appropriate decompression or de-archiving software is widely available for no charge. 1.12. “Source Code” means (a) the common form of computer software code in which modifications are made and (b) associated documentation included in or with such code.
1.12/1.13 1.12. "You" (or "Your") means an individual or a legal entity exercising rights under, and complying with all of the terms of, this License or a future version of this License issued under Section 6.1. For legal entities, "You" includes any entity which controls, is controlled by, or is under common control with You. For purposes of this definition, "control" means (a) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (b) ownership of more than fifty percent (50%) of the outstanding shares or beneficial ownership of such entity. 1.13. “You” (or “Your”) means an individual or a legal entity exercising rights under, and complying with all of the terms of, this License. For legal entities, “You” includes any entity which controls, is controlled by, or is under common control with You. For purposes of this definition, “control” means (a) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (b) ownership of more than fifty percent (50%) of the outstanding shares or beneficial ownership of such entity.
2 Source Code License Licence Grants
2.1 The Initial Developer Grant.
The Initial Developer hereby grants You a world-wide, royalty-free, non-exclusive license, subject to third party intellectual property claims:

(a) under intellectual property rights (other than patent or trademark) Licensable by Initial Developer to use, reproduce, modify, display, perform, sublicense and distribute the Original Code (or portions thereof) with or without Modifications, and/or as part of a Larger Work; and

(b) under Patents Claims infringed by the making, using or selling of Original Code, to make, have made, use, practice, sell, and offer for sale, and/or otherwise dispose of the Original Code (or portions thereof).

(c) the licenses granted in this Section 2.1(a) and (b) are effective on the date Initial Developer first distributes Original Code under the terms of this License.

(d) Notwithstanding Section 2.1(b) above, no patent license is granted: 1) for code that You delete from the Original Code; 2) separate from the Original Code ; or 3) for infringements caused by: i) the modification of the Original Code or ii) the combination of the Original Code with other software or devices.

The Initial Developer Grant.
Conditioned upon Your compliance with Section 3.1 below and subject to third party intellectual property claims, the Initial Developer hereby grants You a world-wide, royalty-free, non-exclusive license:

(a) under intellectual property rights (other than patent or trademark) Licensable by Initial Developer, to use, reproduce, modify, display, perform, sublicense and distribute the Original Software (or portions thereof), with or without Modifications, and/or as part of a Larger Work; and

(b) under Patent Claims infringed by the making, using or selling of Original Software, to make, have made, use, practice, sell, and offer for sale, and/or otherwise dispose of the Original Software (or portions thereof).

(c) The licenses granted in Sections 2.1(a) and (b) are effective on the date Initial Developer first distributes or otherwise makes the Original Software available to a third party under the terms of this License.

(d) Notwithstanding Section 2.1(b) above, no patent license is granted: (1) for code that You delete from the Original Software, or (2) for infringements caused by: (i) the modification of the Original Software, or (ii) the combination of the Original Software with other software or devices.

2.2 Contributor Grant.

Subject to third party intellectual property claims, each Contributor hereby grants You a world-wide, royalty-free, non-exclusive license

(a) under intellectual property rights (other than patent or trademark) Licensable by Contributor, to use, reproduce, modify, display, perform, sublicense and distribute the Modifications created by such Contributor (or portions thereof) either on an unmodified basis, with other Modifications, as Covered Code and/or as part of a Larger Work; and

(b) under Patent Claims infringed by the making, using, or selling of Modifications made by that Contributor either alone and/or in combination with its Contributor Version (or portions of such combination), to make, use, sell, offer for sale, have made, and/or otherwise dispose of: 1) Modifications made by that Contributor (or portions thereof); and 2) the combination of Modifications made by that Contributor with its Contributor Version (or portions of such combination).

(c) the licenses granted in Sections 2.2(a) and 2.2(b) are effective on the date Contributor first makes Commercial Use of the Covered Code.

(d) Notwithstanding Section 2.2(b) above, no patent license is granted: 1) for any code that Contributor has deleted from the Contributor Version; 2) separate from the Contributor Version; 3) for infringements caused by: i) third party modifications of Contributor Version or ii) the combination of Modifications made by that Contributor with other software (except as part of the Contributor Version) or other devices; or 4) under Patent Claims infringed by Covered Code in the absence of Modifications made by that Contributor.

Contributor Grant.

Conditioned upon Your compliance with Section 3.1 below and subject to third party intellectual property claims, each Contributor hereby grants You a world-wide, royalty-free, non-exclusive license:

(a) under intellectual property rights (other than patent or trademark) Licensable by Contributor to use, reproduce, modify, display, perform, sublicense and distribute the Modifications created by such Contributor (or portions thereof), either on an unmodified basis, with other Modifications, as Covered Software and/or as part of a Larger Work; and

(b) under Patent Claims infringed by the making, using, or selling of Modifications made by that Contributor either alone and/or in combination with its Contributor Version (or portions of such combination), to make, use, sell, offer for sale, have made, and/or otherwise dispose of: (1) Modifications made by that Contributor (or portions thereof); and (2) the combination of Modifications made by that Contributor with its Contributor Version (or portions of such combination).

(c) The licenses granted in Sections 2.2(a) and 2.2(b) are effective on the date Contributor first distributes or otherwise makes the Modifications available to a third party.

(d) Notwithstanding Section 2.2(b) above, no patent license is granted: (1) for any code that Contributor has deleted from the Contributor Version; (2) for infringements caused by: (i) third party modifications of Contributor Version, or (ii) the combination of Modifications made by that Contributor with other software (except as part of the Contributor Version) or other devices; or (3) under Patent Claims infringed by Covered Software in the absence of Modifications made by that Contributor.

3 Distribution Obligations. Distribution Obligations
3.1 Application of License. The Modifications which You create or to which You contribute are governed by the terms of this License, including without limitation Section 2.2. The Source Code version of Covered Code may be distributed only under the terms of this License or a future version of this License released under Section 6.1, and You must include a copy of this License with every copy of the Source Code You distribute. You may not offer or impose any terms on any Source Code version that alters or restricts the applicable version of this License or the recipients' rights hereunder. However, You may include an additional document offering the additional rights described in Section 3.5. No equivalent.
3.2/3.1 3.2. Availability of Source Code. Any Modification which You create or to which You contribute must be made available in Source Code form under the terms of this License either on the same media as an Executable version or via an accepted Electronic Distribution Mechanism to anyone to whom you made an Executable version available; and if made available via Electronic Distribution Mechanism, must remain available for at least twelve (12) months after the date it initially became available, or at least six (6) months after a subsequent version of that particular Modification has been made available to such recipients. You are responsible for ensuring that the Source Code version remains available even if the Electronic Distribution Mechanism is maintained by a third party. 3.1. Availability of Source Code. Any Covered Software that You distribute or otherwise make available in Executable form must also be made available in Source Code form and that Source Code form must be distributed only under the terms of this License. You must include a copy of this License with every copy of the Source Code form of the Covered Software You distribute or otherwise make available. You must inform recipients of any such Covered Software in Executable form as to how they can obtain such Covered Software in Source Code form in a reasonable manner on or through a medium customarily used for software exchange.
3.3/3.2 3.3. Description of Modifications. You must cause all Covered Code to which You contribute to contain a file documenting the changes You made to create that Covered Code and the date of any change. You must include a prominent statement that the Modification is derived, directly or indirectly, from Original Code provided by the Initial Developer and including the name of the Initial Developer in (a) the Source Code, and (b) in any notice in an Executable version or related documentation in which You describe the origin or ownership of the Covered Code. 3.2. Modifications.

The Modifications that You create or to which You contribute are governed by the terms of this License. You represent that You believe Your Modifications are Your original creation(s) and/or You have sufficient rights to grant the rights conveyed by this License.

3.4/3.3 3.4. Intellectual Property Matters (a) Third Party Claims. If Contributor has knowledge that a license under a third party's intellectual property rights is required to exercise the rights granted by such Contributor under Sections 2.1 or 2.2, Contributor must include a text file with the Source Code distribution titled "LEGAL" which describes the claim and the party making the claim in sufficient detail that a recipient will know whom to contact. If Contributor obtains such knowledge after the Modification is made available as described in Section 3.2, Contributor shall promptly modify the LEGAL file in all copies Contributor makes available thereafter and shall take other steps (such as notifying appropriate mailing lists or newsgroups) reasonably calculated to inform those who received the Covered Code that new knowledge has been obtained. (b) Contributor APIs. If Contributor's Modifications include an application programming interface and Contributor has knowledge of patent licenses which are reasonably necessary to implement that API, Contributor must also include this information in the LEGAL file. (c) Representations. Contributor represents that, except as disclosed pursuant to Section 3.4(a) above, Contributor believes that Contributor's Modifications are Contributor's original creation(s) and/or Contributor has sufficient rights to grant the rights conveyed by this License. No equivalent.
3.5/3.3 3.5. Required Notices.

You must duplicate the notice in Exhibit A in each file of the Source Code. If it is not possible to put such notice in a particular Source Code file due to its structure, then You must include such notice in a location (such as a relevant directory) where a user would be likely to look for such a notice. If You created one or more Modification(s) You may add your name as a Contributor to the notice described in Exhibit A. You must also duplicate this License in any documentation for the Source Code where You describe recipients' rights or ownership rights relating to Covered Code. You may choose to offer, and to charge a fee for, warranty, support, indemnity or liability obligations to one or more recipients of Covered Code. However, You may do so only on Your own behalf, and not on behalf of the Initial Developer or any Contributor. You must make it absolutely clear that any such warranty, support, indemnity or liability obligation is offered by You alone, and You hereby agree to indemnify the Initial Developer and every Contributor for any liability incurred by the Initial Developer or such Contributor as a result of warranty, support, indemnity or liability terms You offer.

3.3. Required Notices.

You must include a notice in each of Your Modifications that identifies You as the Contributor of the Modification. You may not remove or alter any copyright, patent or trademark notices contained within the Covered Software, or any notices of licensing or any descriptive text giving attribution to any Contributor or the Initial Developer.

0/3.4 No equivalent. 3.4. Application of Additional Terms.

You may not offer or impose any terms on any Covered Software in Source Code form that alters or restricts the applicable version of this License or the recipients’ rights hereunder. You may choose to offer, and to charge a fee for, warranty, support, indemnity or liability obligations to one or more recipients of Covered Software. However, you may do so only on Your own behalf, and not on behalf of the Initial Developer or any Contributor. You must make it absolutely clear than any such warranty, support, indemnity or liability obligation is offered by You alone, and You hereby agree to indemnify the Initial Developer and every Contributor for any liability incurred by the Initial Developer or such Contributor as a result of warranty, support, indemnity or liability terms You offer.

3.6/3.5 3.6. Distribution of Executable Versions. You may distribute Covered Code in Executable form only if the requirements of Section 3.1-3.5 have been met for that Covered Code, and if You include a notice stating that the Source Code version of the Covered Code is available under the terms of this License, including a description of how and where You have fulfilled the obligations of Section 3.2. The notice must be conspicuously included in any notice in an Executable version, related documentation or collateral in which You describe recipients' rights relating to the Covered Code. You may distribute the Executable version of Covered Code or ownership rights under a license of Your choice, which may contain terms different from this License, provided that You are in compliance with the terms of this License and that the license for the Executable version does not attempt to limit or alter the recipient's rights in the Source Code version from the rights set forth in this License. If You distribute the Executable version under a different license You must make it absolutely clear that any terms which differ from this License are offered by You alone, not by the Initial Developer or any Contributor. You hereby agree to indemnify the Initial Developer and every Contributor for any liability incurred by the Initial Developer or such Contributor as a result of any such terms You offer. 3.5. Distribution of Executable Versions.

You may distribute the Executable form of the Covered Software under the terms of this License or under the terms of a license of Your choice, which may contain terms different from this License, provided that You are in compliance with the terms of this License and that the license for the Executable form does not attempt to limit or alter the recipient’s rights in the Source Code form from the rights set forth in this License. If You distribute the Covered Software in Executable form under a different license, You must make it absolutely clear that any terms which differ from this License are offered by You alone, not by the Initial Developer or Contributor. You hereby agree to indemnify the Initial Developer and every Contributor for any liability incurred by the Initial Developer or such Contributor as a result of any such terms You offer.

3.7/3.6 3.7. Larger Works.

You may create a Larger Work by combining Covered Code with other code not governed by the terms of this License and distribute the Larger Work as a single product. In such a case, You must make sure the requirements of this License are fulfilled for the Covered Code.

3.6. Larger Works.

You may create a Larger Work by combining Covered Software with other code not governed by the terms of this License and distribute the Larger Work as a single product. In such a case, You must make sure the requirements of this License are fulfilled for the Covered Software.

4/0 4. Inability to Comply Due to Statute or Regulation.

If it is impossible for You to comply with any of the terms of this License with respect to some or all of the Covered Code due to statute, judicial order, or regulation then You must: (a) comply with the terms of this License to the maximum extent possible; and (b) describe the limitations and the code they affect. Such description must be included in the LEGAL file described in Section 3.4 and must be included with all distributions of the Source Code. Except to the extent prohibited by statute or regulation, such description must be sufficiently detailed for a recipient of ordinary skill to be able to understand it.

No equivalent.
5/0 5. Application of this License.

This License applies to code to which the Initial Developer has attached the notice in Exhibit A and to related Covered Code.

No equivalent.
6/4 Versions of the License. Versions of the License.
6.1/4.1 6.1. New Versions.

Netscape Communications Corporation ("Netscape") may publish revised and/or new versions of the License from time to time. Each version will be given a distinguishing version number.

4.1. New Versions.

Sun Microsystems, Inc. is the initial license steward and may publish revised and/or new versions of this License from time to time. Each version will be given a distinguishing version number. Except as provided in Section 4.3, no one other than the license steward has the right to modify this License.

6.2/4.2 6.2. Effect of New Versions.

Once Covered Code has been published under a particular version of the License, You may always continue to use it under the terms of that version. You may also choose to use such Covered Code under the terms of any subsequent version of the License published by Netscape. No one other than Netscape has the right to modify the terms applicable to Covered Code created under this License.

4.2. Effect of New Versions.

You may always continue to use, distribute or otherwise make the Covered Software available under the terms of the version of the License under which You originally received the Covered Software. If the Initial Developer includes a notice in the Original Software prohibiting it from being distributed or otherwise made available under any subsequent version of the License, You must distribute and make the Covered Software available under the terms of the version of the License under which You originally received the Covered Software. Otherwise, You may also choose to use, distribute or otherwise make the Covered Software available under the terms of any subsequent version of the License published by the license steward.

6.3/4.3 6.3. Derivative Works.

If You create or use a modified version of this License (which you may only do in order to apply it to code which is not already Covered Code governed by this License), You must (a) rename Your license so that the phrases "Mozilla", "MOZILLAPL", "MOZPL", "Netscape", "MPL", "NPL" or any confusingly similar phrase do not appear in your license (except to note that your license differs from this License) and (b) otherwise make it clear that Your version of the license contains terms which differ from the Mozilla Public License and Netscape Public License. (Filling in the name of the Initial Developer, Original Code or Contributor in the notice described in Exhibit A shall not of themselves be deemed to be modifications of this License.)

4.3.Modified Versions.

When You are an Initial Developer and You want to create a new license for Your Original Software, You may create and use a modified version of this License if You: (a) rename the license and remove any references to the name of the license steward (except to note that the license differs from this License); and (b) otherwise make it clear that the license contains terms which differ from this License.

7/5 7. DISCLAIMER OF WARRANTY. COVERED CODE IS PROVIDED UNDER THIS LICENSE ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE COVERED CODE IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE COVERED CODE IS WITH YOU. SHOULD ANY COVERED CODE PROVE DEFECTIVE IN ANY RESPECT, YOU (NOT THE INITIAL DEVELOPER OR ANY OTHER CONTRIBUTOR) ASSUME THE COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO USE OF ANY COVERED CODE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. 5. DISCLAIMER OF WARRANTY.

COVERED SOFTWARE IS PROVIDED UNDER THIS LICENSE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE COVERED SOFTWARE IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE COVERED SOFTWARE IS WITH YOU. SHOULD ANY COVERED SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, YOU (NOT THE INITIAL DEVELOPER OR ANY OTHER CONTRIBUTOR) ASSUME THE COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO USE OF ANY COVERED SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.

8/6 Termination. Termination.
8.1/6.1 8. TERMINATION. 8.1. This License and the rights granted hereunder will terminate automatically if You fail to comply with terms herein and fail to cure such breach within 30 days of becoming aware of the breach. All sublicenses to the Covered Code which are properly granted shall survive any termination of this License. Provisions which, by their nature, must remain in effect beyond the termination of this License shall survive. 6.1. This License and the rights granted hereunder will terminate automatically if You fail to comply with terms herein and fail to cure such breach within 30 days of becoming aware of the breach. Provisions which, by their nature, must remain in effect beyond the termination of this License shall survive.
8.2/6.2 8.2. If You initiate litigation by asserting a patent infringement claim (excluding declatory judgment actions) against Initial Developer or a Contributor (the Initial Developer or Contributor against whom You file such action is referred to as "Participant") alleging that: (a) such Participant's Contributor Version directly or indirectly infringes any patent, then any and all rights granted by such Participant to You under Sections 2.1 and/or 2.2 of this License shall, upon 60 days notice from Participant terminate prospectively, unless if within 60 days after receipt of notice You either: (i) agree in writing to pay Participant a mutually agreeable reasonable royalty for Your past and future use of Modifications made by such Participant, or (ii) withdraw Your litigation claim with respect to the Contributor Version against such Participant. If within 60 days of notice, a reasonable royalty and payment arrangement are not mutually agreed upon in writing by the parties or the litigation claim is not withdrawn, the rights granted by Participant to You under Sections 2.1 and/or 2.2 automatically terminate at the expiration of the 60 day notice period specified above. (b) any software, hardware, or device, other than such Participant's Contributor Version, directly or indirectly infringes any patent, then any rights granted to You by such Participant under Sections 2.1(b) and 2.2(b) are revoked effective as of the date You first made, used, sold, distributed, or had made, Modifications made by that Participant. 6.2. If You assert a patent infringement claim (excluding declaratory judgment actions) against Initial Developer or a Contributor (the Initial Developer or Contributor against whom You assert such claim is referred to as “Participant”) alleging that the Participant Software (meaning the Contributor Version where the Participant is a Contributor or the Original Software where the Participant is the Initial Developer) directly or indirectly infringes any patent, then any and all rights granted directly or indirectly by such Participant to You under Sections 2.1 and/or 2.2 of this License shall, upon 60 days notice from Participant terminate prospectively and automatically at the expiration of such 60 day notice period, unless if within 60 days after receipt of notice You either: (i) agree in writing to pay Participant a mutually agreeable reasonable royalty for Your past and future use of the Participant Software made by such Participant, or (ii) withdraw Your claim with respect to the Participant Software against such Participant either unilaterally or pursuant to a written software agreement with Participant. If within 60 days of notice, a reasonable royalty and payment arrangement are not mutually agreed upon in writing by the parties or the claim is not withdrawn, the rights granted by Participant to You under Sections 2.1 and/or 2.2 automatically terminate at the expiration of the 60 day notice period specified above.
8.3/6.3 8.3. If You assert a patent infringement claim against Participant alleging that such Participant's Contributor Version directly or indirectly infringes any patent where such claim is resolved (such as by license or settlement) prior to the initiation of patent infringement litigation, then the reasonable value of the licenses granted by such Participant under Sections 2.1 or 2.2 shall be taken into account in determining the amount or value of any payment or license. 6.3 If You assert a patent infringement claim against Participant alleging that the Participant Software directly or indirectly infringes any patent where such claim is resolved (such as by license or settlement) prior to the initiation of patent infringement litigation, then the reasonable value of the licenses granted by such Participant under Sections 2.1 or 2.2 shall be taken into account in determining the amount or value of any payment or license.
8.4/6.4 8.4. In the event of termination under Sections 8.1 or 8.2 above, all end user license agreements (excluding distributors and resellers) which have been validly granted by You or any distributor hereunder prior to termination shall survive termination. 6.4 In the event of termination under Sections 6.1 or 6.2 above, all end user licenses (excluding distributors and resellers) that have been validly granted by You or any distributor hereunder prior to termination (excluding licenses granted to You by any distributor) shall survive termination.
9/7 9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL YOU, THE INITIAL DEVELOPER, ANY OTHER CONTRIBUTOR, OR ANY DISTRIBUTOR OF COVERED CODE, OR ANY SUPPLIER OF ANY OF SUCH PARTIES, BE LIABLE TO ANY PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SUCH PARTY'S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. 7. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL YOU, THE INITIAL DEVELOPER, ANY OTHER CONTRIBUTOR, OR ANY DISTRIBUTOR OF COVERED SOFTWARE, OR ANY SUPPLIER OF ANY OF SUCH PARTIES, BE LIABLE TO ANY PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SUCH PARTY’S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
10/8 10. U.S. GOVERNMENT END USERS. The Covered Code is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire Covered Code with only those rights set forth herein. 8. U.S. GOVERNMENT END USERS. The Covered Software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” (as that term is defined at 48 C.F.R. § 252.227-7014(a)(1)) and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire Covered Software with only those rights set forth herein. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFAR, or other clause or provision that addresses Government rights in computer software under this License.
11/9 11. MISCELLANEOUS.

This License represents the complete agreement concerning subject matter hereof. If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This License shall be governed by California law provisions (except to the extent applicable law, if any, provides otherwise), excluding its conflict-of-law provisions. With respect to disputes in which at least one party is a citizen of, or an entity chartered or registered to do business in the United States of America, any litigation relating to this License shall be subject to the jurisdiction of the Federal Courts of the Northern District of California, with venue lying in Santa Clara County, California, with the losing party responsible for costs, including without limitation, court costs and reasonable attorneys' fees and expenses. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any law or regulation which provides that the language of a contract shall be construed against the drafter shall not apply to this License.

9. MISCELLANEOUS.

This License represents the complete agreement concerning subject matter hereof. If any provision of this License is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This License shall be governed by the law of the jurisdiction specified in a notice contained within the Original Software (except to the extent applicable law, if any, provides otherwise), excluding such jurisdiction’s conflict-of-law provisions. With respect to disputes in which at least one party is a citizen of, or an entity chartered or registered to do business in the United States of America, any litigation relating to this License shall be subject to the jurisdiction of the state and Federal Courts located in the jurisdiction and venue specified in a notice contained within the Original Software, with the losing party responsible for costs, including, without limitation, court costs and reasonable attorneys’ fees and expenses. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any law or regulation which provides that the language of a contract shall be construed against the drafter shall not apply to this License. You agree that You alone are responsible for compliance with the United States export administration regulations (and the export control laws and regulation of any other countries) when You use, distribute or otherwise make available any Covered Software.

12/10 12. RESPONSIBILITY FOR CLAIMS.

As between Initial Developer and the Contributors, each party is responsible for claims and damages arising, directly or indirectly, out of its utilization of rights under this License and You agree to work with Initial Developer and Contributors to distribute such responsibility on an equitable basis. Nothing herein is intended or shall be deemed to constitute any admission of liability.

10. RESPONSIBILITY FOR CLAIMS.

As between Initial Developer and the Contributors, each party is responsible for claims and damages arising, directly or indirectly, out of its utilization of rights under this License and You agree to work with Initial Developer and Contributors to distribute such responsibility on an equitable basis. Nothing herein is intended or shall be deemed to constitute any admission of liability.

13/0 13. MULTIPLE-LICENSED CODE.

Initial Developer may designate portions of the Covered Code as "Multiple-Licensed". "Multiple-Licensed" means that the Initial Developer permits you to utilize portions of the Covered Code under Your choice of the NPL or the alternative licenses, if any, specified by the Initial Developer in the file described in Exhibit A.

No equivalent.
Exhibit A EXHIBIT A -Mozilla Public License.

``The contents of this file are subject to the Mozilla Public License Version 1.1 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at http://www.mozilla.org/MPL/

Software distributed under the License is distributed on an "AS IS" basis, WITHOUT WARRANTY OF ANY KIND, either express or implied. See the License for the specific language governing rights and limitations under the License.

The Original Code is ______________________________________.

The Initial Developer of the Original Code is ________________________. Portions created by ______________________ are Copyright (C) ______ _______________________. All Rights Reserved.

Contributor(s): ______________________________________.

Alternatively, the contents of this file may be used under the terms of the _____ license (the "[___] License"), in which case the provisions of [______] License are applicable instead of those above. If you wish to allow use of your version of this file only under the terms of the [____] License and not to allow others to use your version of this file under the MPL, indicate your decision by deleting the provisions above and replace them with the notice and other provisions required by the [___] License. If you do not delete the provisions above, a recipient may use your version of this file under either the MPL or the [___] License."

[NOTE: The text of this Exhibit A may differ slightly from the text of the notices in the Source Code files of the Original Code. You should use the text of this Exhibit A rather than the text found in the Original Code Source Code for Your Modifications.]

No equivalent.


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