I recently found an open-source class library that declares that it "has the permission to prohibit a certain individual from using it" and I can't stop wondering if I published an open-source project/software under AGPL license then can I make the same declaration? or is it just an invalid statement?
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5Please give a link to the actual library; the exact details may well be relevant here.– Philip KendallDec 28, 2020 at 11:58
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1Well it might a little inconvenient here because the library's description is completely written in Simplified Chinese and I cannot fully understand, but I can make a simple intro here that it is a library that decompiled a closed-source commercial software, digging its network protocols, rewrap it and provide several APIs (which are originally hidden and obfuscated by the commercial software), then published it under AGPL license, besides, only abstraction part is open-source, the protocol implementation part is closed– tgdDec 28, 2020 at 12:25
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That description makes the problems worse to be honest; AGPL code which can be used only with a closed source implementation is (close to) useless as nobody can ever distribute it, unless it has a linking exception.– Philip KendallDec 28, 2020 at 15:36
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2I confess that it is confusing, it's something like "analyzed" the closed-source commercial network protocol, then made a "third-party" implementation and APIs by themselves, open-source the API part under AGPL v3, leave the protocol implementation part staying hidden, and I also confusing about does the license still valid in such scenario (that the core code is actually "stole" from a closed-source commercial software)– tgdDec 28, 2020 at 17:43
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I'm reminded of the "This software is licensed under the GNU license, except it can't be used for evil" JSON license.– nick012000Dec 30, 2020 at 14:54
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5 Answers
AGPL is an OSI approved license. An open source license cannot permit who can use it, as per section 5 of the open source definition:
The license must not discriminate against any person or group of persons.
I am not a lawyer, but the terms of the AGPL and the statement mentioned in the question that "The author [sic] has the permission to prohibit a certain individual from using it" seem to contradict each other. Which one takes precedence and which one is invalid is beyond me, unfortunately.
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Why do you believe the AGPL discriminates against any person or group of persons? Dec 29, 2020 at 14:18
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@user253751 AGPL doesn't: it's the clause mentioned in the OP that does.– RuslanDec 29, 2020 at 15:19
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But then you say: "the terms of the AGPL and [the statement that the license must not discriminate against any person or group of persons] contradict each other" Dec 29, 2020 at 15:36
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@user253751 Mureinik means "the terms of the AGPL and [the statement that tgd mentions in the question] contradict each other" – a different referent for "this statement". (I've suggested an edit making this clarification.) Dec 29, 2020 at 17:46
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1@user253751 I was indeed referring to the statement "has the permission to prohibit a certain individual from using it" OP mentioned, and think that it contradicts the AGPL. I've edited my answer to make it clearer. Thanks for pointing out the unclear wording.– MureinikDec 29, 2020 at 18:26
It seems to me there are two ways to interpret what you propose. Either
a) you make the software is available to all under AGPLv3, except John Smith, who may not take a copy under any terms, or
b) you make the software is available to all under AGPLv3, with the additional proviso that John Smith is never allowed to use it.
In the case of (a), anyone who isn't John Smith may take a copy under simple AGPLv3, and then give a copy to John Smith. In the case of (b), anyone who isn't John Smith may take a copy, ignore the additional restriction under AGPLv3 s7, and pass an unencumbered copy on to John Smith. Thus neither interpretation has any practical force, and they can both be ignored.
Possible interpretation (c), that the software is available under some kind of licence which is AGPLv3 with an added durable proscription on use by John Smith, can be ignored, since such a licence can't legally exist (line 2, "everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed").
answered Dec 28, 2020 at 16:39
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5I strongly doubt your last point/paragraph. Changing and redistributing the AGPL would open you up to a copyright claim/lawsuit regarding the license text, i.e. you are taking this copyrighted work (the license text) and redistributing it illegally. I don't think there is much of a chance this would invalidate the completely separate matter of the copyright of the work you wish to license under some hybrid license text. The question is exclusively which of the contradicting claims would prevail, and since the addendum is much more prominent than the original, I suspect it might be the former.– NobodyDec 28, 2020 at 20:41
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At least you can't just rule it out preemptively without consulting relevant case law.– NobodyDec 28, 2020 at 20:44
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@Nobody: If section 7 still exists, then the additional proscription would need to be very explicitly worded to override it. That is not what OP has described in the comments of the question.– KevinDec 28, 2020 at 22:25
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14@Nobody: In particular, I'm pretty sure there's no law against distributing (your own non-derivative) software under a custom license that reads e.g. "This license includes by reference all terms of the GNU AGPL, version 3, a verbatim copy of which is provided below, except for the following modifications: […]" Of course, depending on exactly how those modifications are phrased, the resulting "frankenlicense" might or might not accomplish what its author wants, and it could even be nonsensical and thus void. But it wouldn't have to be. Of course, it almost certainly wouldn't be OSI approved. Dec 28, 2020 at 22:33
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1My point was about the 'therefore' in your last sentence of the comment. I disagree about that therefore. We can not make that assumption.– NobodyDec 29, 2020 at 16:46
If I am the sole copyright holder, I can distribute under any license I wish. Now "AGPL with one exception" is not AGPL obviously. I don't know about AGPL, but the GPL license is protected by copyright, and comes with a license that allows you to copy it unchanged, but does NOT AT ALL allow you to make any changes. Assuming AGPL is the same, you have no permission to use the text of the AGPL with modifications, like your one person exception. You are allowed to pay a lawyer to write a new license for you from scratch that would have the exact same meaning as "AGPL with exception".
(To make this clear: A license is a written document, and like any written document has its own copyright, and can come with its own license. The GPL license is NOT GPL licensed for very good reasons, because the creators of the GPL license want to avoid people creating chaos by making slightly modified "GPL" licenses).
Open Source licenses follow the pattern: "You may make copies and modified copies, which you would not be allowed to do without a license due to copyright law, as long as you follow the terms of the license". If you start with AGPL licensed code, modify it, and distribute it with your "AGPL except John Smith" license, you are most likely in violation of the AGPL license and your distribution is copyright infringment. However, if I received that code from you, I do NOT have a license that allows me to give a copy to John Smith, and John Smith isn't allowed to receive it from me.
If I or John Smith are sufficiently annoyed with the situation, we can find and contact a copyright holder of the original AGPL licensed code, and that copyright holder can sue you for copyright infringement. You then have the choice to go back to the original AGPL license (and I can distribute to John Smith), or to stick with your license, pay damages for copyright infringement, and I do still not have a license to distribute to John Smith.
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1Although this question is correct in general, it is important to note that the GPL's terms are permissively licensed (minus the name, preamble, and instructional appendix) by the FSF: opensource.stackexchange.com/q/253– apsillers ♦Dec 29, 2020 at 20:26
(I am not a lawyer and therefore this is not "legal advice")
If you really received the program under the terms of the AGPL v3, then look at section 7, third-to-last paragraph:
All other non-permissive additional terms are considered "further restrictions" within the meaning of section 10. If the Program as you received it, or any part of it, contains a notice stating that it is governed by this License along with a term that is a further restriction, you may remove that term.
Although I am not a lawyer, I suspect that if the copyright holder says you don't have permission to copy their software, then you don't have permission to copy their software; however, since they are giving every other member of the public permission to copy their software and delete the restriction, your friend could download the software, remove the restriction which prevents you from being allowed to have it, and then distribute that copy to you.
The owner of the complete source code is not limited to the list of official versions of any license. It is possible to write the license in the way "All terms of the known GPL license apply for everyone except John Smith". Changes are not permitted in the licenses but should be possible to reference them in any context.
However such licenses are not GPL, AGPL, Apache, whatever and would be illegal to name them so. They are just different licenses. They probably cannot be called Open Source either while all other users apart John Smith may not bother too much.
Hence that library you address cannot be under AGPL. It is under own specific license. If they anyway claim it IS, FSF probably would not be happy at all after knowing this. But if they write "mostly similar", this means exactly that much - mostly similar.
