Rights: Author Zhan Yi, Shanghai, China practicing lawyer, part-time professor at East China University of Political Science,
Micro letter: ZhanyiAttorney-mail: [email protected]
Disclaimer: propagation this article, first presented in the text above the right information.
August 2019, China Open Source Cloud Union (COSCL) launched the British version of Mulan liberal license - version 1 (v1 Mulan PSL) [1], which is known as China's first official open-source software license agreement. Since most of the current open-source software licenses from major European and American communities, and language text of these licenses, legally effective mostly in English, and therefore, this organization launched by the Chinese open source license of the Chinese, led the industry is not small s concern. Most of these focus on project development and other technical point of view, and the focus of this article is that the level of compliance with the law how to look magnolia licenses are for development, software project reference.
1, open-source software | Open Source License
Open source software is commercial software with respect to, in terms of public software [2]. Commercial software is generally not open source, commercial software is required to obtain copyright permission and pay royalties [3]. Public domain software, namely due to the expiry of copyright protection, developers and other reasons not to give up copyright protection of software copyright law. Since they do not protect the public software license rights problem does not exist. Open source software is protected by copyright law, but the developer in accordance with the requirements of the open source [4], and open source code - This is generally regarded as the core business software company secrets and open source code to enjoy copyright. Open the different conditions, the formation of different open-source licenses. For example AGPL, GPL, LGPL, MPL, MIT, Apache 2.0 BSD 3 and the like well known in the industry license.
Open-source license is essentially a legal document , software developers and users a standardized format agreement between [5], are the " Copyright Law " (ie copyright law), to provide license validity a legal guarantee. Software developers use copyright law gives the copyright to set content license. For example, Xiao Ming wrote a small game program in Java, if Bob is not open source, other people can not get posted on the Internet it? The answer is no. Xiao Ming because of its copyrighted computer program developed, without their permission, publish it are violations on the network, which is commonly known pirated software , it should bear legal responsibility.
Xiao Ming think now open source, on the use of Mulan PSL v1 conditions as open source, we can be in the range permitted by the license, freely distributed, or develop derived, do not worry about a violation of copyright law. Therefore, the open source license that serves this purpose, the equivalent of the user Xiao Ming and game program signed a standard form contract, the provisions of copyright is a small Ming, but Bob will give his rights under copyright law, pre-agreed license in other people to exercise, including the freedom to copy, distribute and derivative development, and the user does not need to pay royalties to Bob [6].
2. Why is it called "liberal license"
Different open-source licenses, that the user sets the different conditions of use. This is like a spectral bar, orange → yellow → red → green → blue purple → → indigo, to broadly represent a serious extent different conditions of use.
For example, GPL 3.0 license in the orange end [7], stringent conditions are for the user. Use software license GPL 3.0, if you modify this software, modify part of the code must be open, not closed source can not be selected other open source licenses; GPL code after the company if you will modify the commercial software integration as a software, your company's entire business with open source software must follow this code, open source condition is still GPL 3.0.
And Apache 2.0 license condition is more relaxed, indigo end in [8]. You use other people to write in Apache 2.0 open source license, the only condition is to keep the relevant statement. For example, you modify the re-release of this open source, you need to indicate modified at the time of publication, and retain the original information, including author, trademarks, patents and other rights notices as well as the full text of Apache 2.0 license. As you use this software in the open source project, your entire software is open source or closed source commercial continues, up to you, you modify the open source, is not followed by the open source with Apache 2.0, it is also determined by you. Magnolia License - Version 1 of the license conditions set by the user (see below) Similarly, therefore, also a type of loose license.
As for the name of the license, why is it called "Mulan"? In the law technically can not be explored, ha ha.
3, how to understand "Mulan" clause
Magnolia license from 0 to Article 5, a total of six terms, it is not only relaxed, but also relatively simple .
First outset license Note: Your copy of "software", to use, modify and distribute under license magnolia loose, bound first edition (the "License") the following terms and conditions.
Software copyright [9] the provisions of China's copyright laws in specific rights, and not to use, distribute , and license in the copy, modify, and reproduction rights, the right to modify the same whether the meaning is not without doubt. Therefore, although the above terms Magnolia license taken with the popular Apache 2.0 license and other similar industry, but taking into account the nature of open source license is a license agreement rights, the developer, the project company dispute, but also in accordance with copyright law judge to judge. Therefore, recommended that the issuer of the relevant language in the documentation license (if any) where you can make an explanation to facilitate the use. This recommendation also applies to the first 0-defined terms.
Article 1, Section 2 is the core provision, as with the passage of open-source licenses, the provisions of the open source software you can use for free, your usage behavior has been made under license copyright, patent licensing [10]. Article 2 also includes a common patent retaliation clause.
Under Article 3 is no trademark license. An analogy that if Huawei decides "obscurity" to take Mulan license, your company made a modification and release the modified program is not available "Huawei", 
and "Hong Meng" and so on Huawei's name, trademark and logo Doing so may constitute infringement.
Article 4 mean, you people in the free distribution of open source, have to respect others, copyrights, trademarks, patents, and disclaimers included with the program, you have to keep intact; you have to respect it, "Mulan", in attach a copy of the license of the distribution.
Section 5 deals with no warranty, which is also a legal issue. According to this article, you use open source software under the license terms of product quality will not be a problem, or infringement of intellectual property rights, they do not guarantee, are required disclaimer that you can not find a "contributor" trouble.
This does not guarantee clause, whether or not all of the content including the above disclaimer, the publisher license is required for further explanation . But I believe that, in accordance with China's laws and judicial practice, this provision does not necessarily completely effective, and can not under any circumstances allow "contributor" exemption . For example, if open source software products, the situation is "Tort Liability Act," Article 41 has occurred, should bear tort liability. As another example, if the "contributor" to know all or part of the code infringement of intellectual property rights should also be liable for damages.
4, two perfect proposal
The first point, though, is "loose" license, but the technology model business scenarios and software applications, and the situation has been very different in the 1990s when the rise of open-source software. Recommend "Mulan" has a license to set the terms of cloud computing, SaaS features.
Secondly, because "Mulan" license valid language is Chinese, but also the English text. Therefore, we recommended to set the terms of effective language , a clear relationship between the English text and Chinese text on the law. Considering the Apache, BSD, GPL, MIT and is now the prevailing EPL and other open source licenses, you can also set in the "Mulan" in the compatible provisions , and in "Mulan" in the documentation (if any), the on the "Mulan" license permits syndrome and above, in the language and the implementation of the provisions of compatible, developers, project company give guidance.
5. Summary
As China's first official open-source software license agreement, "Mulan" can play what role in the domestic open source cause, really exciting. I think there are two aspects of the environment requires constant construction:
- First, the software industry needs to build a good development environment , which requires not only cultivate the spirit of sharing technology, but also need a strong capital market operation and support [11].
- Another is the legal environment . Today the country case studies on open source licenses are not many, many of the key points of the law is not clear, for example, export controls, intellectual property risks, data security and other issues. Therefore, not only in the daily open-source projects, professional lawyers involved in the legal risk prevention, but also we need the open source community legislative, executive and judicial cooperation and to build mature open source framework applicable law.
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Comment:
[1] http://license.coscl.org.cn/MulanPSL/,2019年August 9 visit.
[2] a classification I carried out, in line with the mainstream type of software today. But there are many software classification, for example, the classification of the SPA: commercial software, free software, trial software, public software; FSF classification: proprietary software, Copylefted software, free software, trial software, public software.
[3] Of course, this is roughly comparable easy to understand, with the rise of cloud computing, SAAS, AI technology, business models, many commercial software licenses, nor collect royalties, but not open source, copy, distribute, upgrade development and other copyright rights are reserved. At the same time, the exercise of copyright law to software copyright owners have the right to restrictions, as in the case of fair use, in this case, users do not need to obtain permission of the rights, do not need to pay him royalties.
[4] whether a license and open source spirit, consistent with the idea that count as true open source software, the industry is generally subject to customary OSI certified.
[5] used, generally comprises running study, copy, distribute, and then development.
[6] Of course, "open source software" concept is that the source code sharing, improve collaboration, see "seven basic quality of open source," a text, the open source community July 20, 2019.
[7] in the license the red end of the spectrum on the strip, I think it is GNU AGPL license.
[8] license purple side, I think to count the BSD license and MIT License.
[9] 2013 edition of "Computer Software Protection Regulations" provisions of the Software copyright holders enjoy the right to express the right of authorship, the right to amend, reproduction rights, distribution rights, rental rights, Information Network Transmission Right, translation rights.
[10] a software, sometimes Why can simultaneously obtain copyright law, patent law to protect it? I can refer to in the "cyberspace security laws and regulations interpret" a book (colleges and universities cyberspace security professional "Thirteen Five" planning materials, November 2018 edition) pp. 149 - 150 wrote, "In addition to computer software copyright protection, You can not get patent protection of intellectual property, trade secrets and other types of?. "
[11] For example, "Huawei revealed China's first open-source foundation will be officially operating near future," a text, open China August 11, 2019.