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::::: The Hacktivismo Enhanced-Source Software License Agreement :::::
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Everyone is permitted to copy and distribute verbatim copies of this license
document. You may use content from this license document as source
material for your own license agreement, but you may not use the name
"Hacktivismo Enhanced-Source Software License Agreement," ("HESSLA") or any
confusingly similar name, trademark or service-mark, in connection with any
license agreement that is not either (1) a verbatim copy of this License
Agreement, or (2) a license agreement that contains only additional terms
expressly permitted by The HESSLA.
** INTRODUCTORY STATEMENT **
Software that Hacktivismo[fn1] releases under this License Agreement is
intended to promote our political objectives. And, likewise, the purpose of
this License Agreement itself is political: Namely, to compliment the
software's intended political function. Hacktivismo itself exists to develop
and deploy computer software technologies that promote fundamental human
rights of end-users. Hacktivismo also seeks to enlist the active
participation and involvement of people around the world, to help us improve
these software tools, and to take other actions (including actions that
involve using and distributing our software, and the advancement of
similarly-minded software projects of others) that promote human rights and
freedom worldwide.
[fn1] http://hacktivismo.com/
Because of our non-commercial objective of promoting end-users' freedoms,
Hacktivismo has some special, and admittedly ambitious, licensing needs. This
License Agreement enhances the benefits of published source code by backing up
our human rights projects with appropriate remedies enforceable in court.
** The Freedoms We Promote: **
When we speak of the freedom of end-users, we are talking about basic freedoms
recognized in the Hacktivismo Declaration,[fn2] the International Covenant on
Civil and Political Rights,[fn3] the Universal Declaration of Human Rights,
[fn4] and other documents that recognize and promote freedom and human
dignity. Principal among these freedoms are:
[fn2] http://hacktivismo.com/about/declarations/
[fn3] http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
[fn4] http://www.un.org/Overview/rights.html
** Freedom of Expression: **
The freedom of opinion and expression "include[s]freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers,"[fn5] and
the freedom to choose one's own medium of expression. The arbitrary use of
technological censorship measures to block or prevent access to broad
categories of speech and expression including the work of critics,
intellectuals, artists, journalists, and religious figures is seldom, if ever,
justified by any legitimate governmental objective. And, to the extent that
technology enables censorship decisions to be removed from public scrutiny and
review, technology-based censorship mechanisms are especially suspect and
dangerous to civil society. When repressive governments and other
institutions of power seek to deprive people of this basic freedom, people
have the right to secure, employ and deploy the tools necessary to reclaim the
freedoms to which they are justifiably entitled.
[fn5] Article 19, Universal Declaration of Human Rights.
** Freedom of Collective Action and Association: **
People have and should have the "freedom of peaceful assembly and
association."[fn6] This freedom includes the right of people to work together
to secure constructive change in their personal, economic, and political
circumstances. When repressive governments or other institutions of power
seek to deprive people (including users of the Internet) of their freedoms of
voluntary assembly, association, and common enterprise, people have the right
to secure, employ and deploy technologies that reclaim the freedoms to which
they are justifiably entitled.
[fn6] Article 20(1), Universal Declaration of Human Rights.
** Freedoms of Thought, Conscience, Sexuality, and Religion: **
People have and should have the freedom of "thought, conscience, and
religion."[fn7] This right "includes freedom to change religion or belief,
and freedom, either alone or in community with others, in public or private,
to manifest any religion or belief in teaching, practice, worship and
observance, regardless of doctrine."[fn8] Every person, regardless of sex or
sexual preference, and with reciprocal respect for the corresponding rights of
all others, has and should have the right to determine and choose, freely and
without coercion, whether, how and with whom he or she shall fully enjoy the
most private and personal aspects of human life, including individual
sexuality, reproduction, and fertility. Moreover, "[t]he explicit recognition
and reaffirmation of the right of all women to control all aspects of their
health, in particular their own fertility, is basic to their
empowerment."[fn9] When repressive governments and other institutions of
power seek to deprive people of these basic freedoms, they have the right to
secure, employ and deploy the tools necessary to reclaim the freedoms to which
they are justifiably entitled.
[fn7] Article 18, Universal Declaration of Human Rights.
[fn8] Id.
[fn9] Paragraph 17, Beijing Declaration of the Fourth United Nations
Conference on Women (Sept. 15, 1995).
** Freedom of Privacy: **
Every person has the right to be free from "subject[ion] to arbitrary
interference with his [or her] privacy, family, home or correspondence"[fn10]
-- digitally, or by any other means or methodology. This freedom of privacy
includes the right to be free from governmental or private surveillance that
might interfere with or deter the rightful exercise of any other freedoms of
any person. In the context of software tools that enable people to reclaim
their freedoms, all end-users have and should have the right to secure and use
tools that are free from the surreptitious insertion into their software of
"backdoors," "spy-ware," escrow mechanisms, or other code or techniques that
might promote surveillance, or subvert security (including cryptographic
security), confidentiality, anonymity, authenticity and/or trust.
[fn10] Article 12, Universal Declaration of Human Rights.
** Reasons For Enhancing "Free" and "Open-Source" Licensing: **
Developing a new software license is never a trivial task and this License
Agreement has presented special challenges for Hacktivismo. Because of our
human rights objectives, this License Agreement includes some specific terms
and conditions that, as a technical matter, depart from the previously-
recognized and established definitions of "free"[fn11] software and "open
source"[fn12] software.
[fn11] http://www.gnu.org/philosophy/free-sw.html
[fn12] http://www.opensource.org/docs/definition_plain.php
We have therefore coined the term "enhanced source" to describe this License
Agreement because we have sought to combine most of the freedom-promoting
benefits of "free" or "open-source" software (including mandatory disclosure
of any changes or modifications Licensees make to the source code, whenever
they release modified versions of HESSLA-licensed Programs or other Derivative
Works), with additional enhanced license and contractual terms that are
intended to promote the freedom of end-users. The Hacktivismo Enhanced-Source
Software License Agreement promotes our objectives in an enhanced manner by
including contractual terms that empower both Hacktivismo and qualified
end-users with greater flexibility and leverage to maintain and recover human
rights, through the mechanism of the contract itself including terms that are
designed to enhance both our enforcement posture and that of qualified
end-users in court.
To be sure, Hacktivismo enthusiastically endorses and supports the goals and
objectives of the Free Software movement and those of the open source
community. In particular, we owe a special debt of gratitude to the Free
Software Foundation, to the Open Source Initiative, and to many exceedingly
talented people who have contributed to Free Software and open source
projects and endeavors over the years.
Ultimately, however, after reviewing the field of possibilities among
previously-existing "open source" and "free" licenses, Hacktivismo has
concluded that none of them fully meets our requirements. Writing our own
License Agreement enables us to pursue our human rights objectives more
effectively. This licensing endeavor represents a first step toward achieving
our objectives, and no doubt informed feedback, scholarship, and learned
commentary will enable us to pursue our objectives even more effectively in
the future.
** Benefits That Carry Over From Free Software: **
Before we explain how an "enhanced source" License Agreement specifically
differs from a "free" or "open source" license, we believe it is helpful to
explain in greater detail what the principal advantages, and freedom-enhancing
aspects, of "free" software are.
When we speak of "free software," we refer to important personal freedoms, and
not price. In addition to terms that are intended to promote the freedoms of
Expression, Thought, Collective Action and Privacy (along with other human
rights) of all end-users, the Hacktivismo Enhanced-Source Software License
Agreement is also designed and intended to promote the following freedoms:
* You have the freedom to distribute copies of the software (and charge
for this service if You wish);
* You have the freedom of access to the source code, to inspect and
verify (and even to improve, if You can) the integrity and functionality
of the software;
* So long as You do not subvert or infringe the freedoms of end-users by
doing so, You have the freedom to change the software or to use parts of
it in new Programs;
* You have the freedom to know You can do these things.
The licenses for most computer software programs are designed to take away
Your freedom to share software or change source code. This kind of software
is designated as proprietary or "closed." The Hacktivismo Enhanced-Source
Software License Agreement -- like other license agreements that have served
as inspiration for our work -- is intended to promote both Your freedom to
share our software with others, and Your freedom to change and improve the
software. Your right under this License Agreement to look at the source not
only enables You to contribute Your own efforts to Hacktivismo's human rights
projects, but also serves as an additional level of assurance to You as an
end-user that unwelcome, hidden surprises have not been inserted into the
software, that could compromise Your rights and freedoms when You use the
software.
** HESSLA Helps Safeguard Additional End-User Freedoms: **
In order to understand why this License Agreement must be described as
"enhanced source," and cannot strictly speaking be considered either a "free"
or "open source" license agreement, it is helpful to consider the possibility
that a programmer might insert malicious code, such as a computer virus, a
keystroke logger, or "spyware" into a program that has previously been
released under a "free software" license agreement.[fn13] The act of
inserting malicious code into software, if done by a private individual or
company (though many governments will contend they are not required to play by
the same rules as the rest of us), may well violate criminal laws and result
in civil tort liability. It is, of course, also possible to deter such
malicious behavior by including, in a software license agreement, a specific
contractual term that prohibits such behavior, meaning that any licensee who
violates the prohibition against malicious code can be sued by the licensor
(or by third-party beneficiaries who the licensor has explicitly identified as
alternate or additional enforcers of the agreement) for money damages and a
court order forbidding any continued violation.
[fn13]In this regard, a the following hypothetical illustration should be
particularly helpful. If an organization of computer security enthusiasts
were to release, under the GNU General Public License ("GPL"), a program
called "Grey Eminence 3000" ("GE3K"), a remote-administration tool for
Microsoft Windows, that helps illustrate how insecure this particular
commercial product happens to be it should hardly be surprising that the
United States Secret Service and Federal Bureau of Investigation, after
making some loud and misleading apocalyptic noises about "computer
hackers" to Congress and in the media (primarily in a largely successful
effort to increase their technology budgets), would also study the
software to see what it does, how it does it, and whether any of those
capabilities happen to be features that law enforcement might find
helpful. Of course, if the U.S. federal law enforcement community were to
announce, several months later, that it had commissioned the development
of "classified" quasi-viral computer-intrusion and surveillance software
called "Magic Candle" the capabilities of which law enforcement does not
plan to disclose to the public, and the source code for which will remain
a closely-guarded secret, then inquiring minds might become curious as to
whether "Magic Candle" contains any of the GPLed code that was written for
"GE3K" (or any other free or open-source software, for that matter).
Needless to say, under the right factual circumstances, if any GPLed code
from GE3K found its way into "Magic Candle," then the U.S. government or
its software development contractor might well be obligated to reveal to
the public all the source code for "Magic Candle." Nevertheless, so long
as the "Magic Candle" source is never publicly released for comparison
purposes, then everyone with legitimate questions about GPL compliance
faces a chicken-and-egg problem. So long as the source of "Magic Candle"
remains secret, detection of a GPL violation becomes dramatically more
difficult (particularly so if, additionally, nobody outside law
enforcement has access to the compiled executables), which means the
worldwide community of Internet users and software developers has only the
United States government's solemn assurance that no GE3K code was used
cold comfort at best.
** Previous Licenses Provide More Limited Protection Against Government and
Other Surveillance: **
No software license agreement that qualifies as "free" or "open source" may
contain any restriction as a term of the license agreement that in any way
qualifies any Licensee's prerogative (no matter who they are or what their
motives may be) to make changes to code. In other words, an "open source"
license agreement, to qualify for the "open source" label, may not even
contain a term that prohibits the insertion of destructive viruses or "trojan
horses" into derivative code. Likewise, no "free" or "open source" license
agreement can in any way contain (as a license term) any restriction on the
use of software not even a prohibition against unlawful surveillance or
other malicious uses of the software.
The "open source" and "Free Software" communities rely principally on
voluntary compliance[fn14] with the disclosure provisions of license
agreements (although many "free" and "open source" license agreements, such
as BSD-style licenses, do not require changed code to be disclosed, and in
fact enable modified versions of programs to be "taken proprietary") and on
social mechanisms of enforcement, as means to detect, prevent, deter, and
remedy abuses.
[fn14]As the example in Note 13 illustrates, it is sometimes difficult to
determine whether the source disclosure requirement of the GPL has been
violated, such as when a modified version of a program has been
distributed without source, precisely because detection of a disclosure
violation depends in part on the disclosure of the source of derivative
works in order to compare whether a putative derivative really does
contain code derived from a GPLed parent work.
The Hacktivismo Enhanced-Source Software License Agreement does not in any
way sacrifice or surrender the enforcement techniques and safeguards
available under license agreements such as the GNU General Public License.
Rather, the HESSLA enhances the options available to Hacktivismo and to
qualified end-users, by providing additional enforcement options. Moreover,
for the purpose of promoting the freedoms of both programers and end-users,
through the enforced mandatory disclosure of code modified by third-parties,
this License Agreement has advantages over many of the licenses (such as
BSD-style licenses) that fully qualify as "free" or "open-source" license
agreements.
What makes this License Agreement an "enhanced source" License Agreement,
instead of a "free software" license agreement, is that the Hacktivismo
Enhanced-Source Software License Agreement contains specific, very limited
restrictions on modification and use of software by Licensees, as part of a
calculated trade-off of rights and responsibilities that is intended to
promote the freedom of end-users.
** The Enhanced-Source Bargain Reinforces End-User Freedoms: **
To protect Your rights, we need to make restrictions that forbid anyone to
deny You specific rights or to ask You to surrender these rights. To
protect Your human rights as an end-user of this program or any work based on
it, we need to make restrictions that forbid You and all other Licensees of
this software (including, without limitation, any government Licensees) from
using this code to subvert the human rights of any end-user.
We protect Your rights and the rights of all end-users with two steps:
(1) copyright the software, and (2) offer You this License Agreement which
gives You qualified legal permission to copy, distribute and/or modify the
software.
The restrictions shared by all Licensees translate into certain
responsibilities for You and for everyone else (including governmental
entities everywhere) if You distribute copies of the software, if You use it,
or if You modify it.
In this regard, the methodology we employ is not materially different from the
methodology Free Software Foundation employs in the GNU General Public License
(the "GPL"). The methodology is to exchange the Author's permission to copy,
change, and/or distribute a copyrighted work, for every Licensee's acceptance
of terms and conditions that promote the licensor's objectives. In both this
License Agreement and the GPL, the terms and conditions that each Licensee
must accept are intended to discriminate against certain very narrow, limited
kinds of human endeavor, that are inconsistent with the licensor's political
objectives. In other words, the GPL requires each Licensee to promise not to
engage in the activity of 'propertizing,' or 'taking proprietary,'
modifications to GPLed code; modified code must also be released under the
GPL, and cannot be released in the form of "closed" executables, or otherwise
be made "proprietary." Likewise, the Hacktivismo Enhanced Source Software
License Agreement discriminates against undesirable activity such as
surveillance, introduction of certain kinds of malicious code, and human
rights violations, as well as discriminating against "propertizing" behavior
such as might violate the GPL. Subject to these narrow restrictions,
Licensees under either license agreement enjoy very broad latitude to change,
use, explore, modify, and distribute the software much broader than they
would enjoy with typical "proprietary" software packages.
As with "copyleft" licenses such as the GPL, under the Hacktivismo Enhanced
Source Software License Agreement, programmers (including, most importantly,
programmers working for governments) do not have unfettered or completely
unlimited "freedom" for purposes of what they can do with HESSLA-licensed
code. Just as with the GPL, they do not have the "freedom" to convert
HESSLA-licensed code into "closed" or "proprietary" code. People who create
derivative works based on an HESSLA-licensed program and distribute those
works have a corresponding obligation to "give back," and not merely to
"take," HESSLA-licensed code.
If You distribute copies of such an HESSLA-licensed program, whether gratis or
for a fee, You must give the recipients all the rights and responsibilities
that You have. You must ensure that they, too, are told of the terms of this
License Agreement, including the freedoms they have, and the kinds of uses and
modifications that are forbidden. You must communicate a copy of this License
Agreement to them as part of any copy, modification, or re-use of source or
object code, so they know their rights and responsibilities.
Thus, the main difference between this License Agreement and the GPL is not the
methodology we employ,[fn15] but the scope and breadth of the political
objectives we seek to promote. Simply put, the political objectives we promote
are somewhat broader than the explicit political goals that the Free Software
Foundation seeks to promote through the GPL. Our goals include a somewhat
broader range of human rights than the specific copyright-related rights with
which the GPL is principally concerned. But, while we are concerned with the
entire field of human rights rather than a subset, we want to make it
perfectly clear that we also embrace, share, and seek to promote, the goals we
share with the Free Software movement.
[fn15] There is a modest difference, but it is not large, and mostly
philosophical. Some experts on the GPL draw a distinction between a
"contract" and a pure "license," by taking the position that a pure
"license" does not impose "contractual" conditions on a Licensee only
conditions that would otherwise (but for the license) be subsumed within
with exclusive rights that the licensor has under copyright law. Thus,
the licensor has the right to exclude anyone else from such activities as
making copies, making derivative works, publicly performing a work, and
other exclusive rights specified by statute. But, concerning the act of
"using" a computer software program, in instances in which a copy is not
made (or, in the trivial sense that a copy is made only temporarily from a
storage medium to memory, to enable software to be "used"), the Free
Software Foundation takes the position that United States law, at least,
does not confer an exclusive right on the copyright holder (or, as others
would argue, the United States statute qualifies the holder's exclusive
right to copy), because the U.S. Copyright Act specifically exempts from
the exclusive right to make copies, a copy made from (for example) a
computer hard drive to volatile memory, in connection with the process of
executing computer software. So far as we can determine, the Free
Software Foundation does not argue that it is impossible "contractually"
to impose conditions on use, as part of the bargain one strikes, when
conditionally allowing Licensees to make copies of a program. Rather, for
philosophical reasons, the Free Software Foundation voluntarily chooses
not to include what it views as "contractual" conditions in the GPL. In
this sense, Hactivismo takes the position that the HESSLA is clearly a
"contract" and contains "contractual" terms, such that it should not be
considered a "pure license," under the nomenclature employed by the Free
Software Foundation. However, in our view, precisely because both the
HESSLA and the GPL are clearly conditional grants of permission to do
things from which the Licensee would otherwise be excluded (i.e., the
Licensee must undertake certain obligations in exchange for permission to
copy, modify, or distribute, a work), the key point is that the
methodology is quite similar.
Compared with the GPL, aspects of the HESSLA give both end-users and
programmers (including, most importantly, governmental end-users and
programmers) marginally less leeway to make malicious use of the program, or
to insert malicious code into a program, than they would have under a
traditional "copyleft" software license. These aspects of the HESSLA (such
as the requirement that the program cannot be used to violate human rights, or
forbidding the insertion of "spy-ware" or surveillance mechanisms into
derivative works) are included because our ultimate objective is to preserve
and promote the human rights of end-users, including their privacy and their
right of free expression.
In other words, unlike many programmers, we are not just in the business of
developing and distributing open-standards technologies. We're also trying to
empower end-users (including end-users in totalitarian regimes) with software
tools that promote fundamental freedoms while also seeking as best we can to
protect these end-users from being arrested, beaten, or worse. Our objective
of promoting end-user freedoms, including the freedoms of people in
politically repressive countries, is precisely the factor that has led
Hacktivismo to develop this License Agreement instead of using another.
** The HESSLA Also Includes Features To Enhance Government Accountability: **
To this end, we have sought and intend to ensure, to the fullest extent that
law (including, without limitation, the law of contract and of copyright
licensing) enables us to do so,[fn16] that no government or other institution
may do anything with this computer software or the underlying source code
without becoming a Licensee bound by the terms of this License Agreement,
subject to the same restrictions on modification and use as anyone else.
[fn16] "Everyone has the right to an effective remedy by the competent
national tribunals for acts violating . . . fundamental rights . . ."
Article 8, United Nations Declaration of Human Rights.
Accordingly, this License Agreement includes several terms that are aimed
explicitly at governmental entities, in order to maximize enforceability
against such entities. Respect for the Rule of Law means that no governmental
entity is above the law, and that no governmental entity should be permitted
to use its status as a mechanism for circumventing the requirements of this
License Agreement.
Any use, copying or modification of this software by any governmental official
or governmental entity anywhere in the world is a voluntary act, which act the
governmental official or entity is free to forego if it does not wish to be
bound by this License Agreement. This License Agreement seeks to establish as
clearly as possible two important checks on the improper use of government
power. First, the voluntary election to use, copy, or modify, this software
by any government or governmental official constitutes a waiver of all
immunities that might otherwise be asserted, against enforcement of this
License Agreement by the Author, or assertion by end-users or others of any
human rights laws that may have been violated by a government employing the
Software. Second, any such government or governmental official not only
subjects itself to enforcement action in its own courts, but also explicitly
and voluntarily subjects itself to enforcement action in the courts of other
nations that are likely to be more objective, for the purpose of giving effect
to the terms of this License Agreement.
** Mechanism of Contract Acceptance: **
This License Agreement treats any use of the software as acceptance of the
terms of this License Agreement. To understand the significance of this, it
is important to distinguish between the law governing copyright and the law
governing offer and acceptance for the purpose of contract formation (which
gives the offeror the power to specify the manner of acceptance). The
question of whether copyright confers an exclusive right of use on the author
of a program is certainly an interesting one. Under United States law, see 17
U.S.C. § 117(a)(1), a limited exception to the exclusive right to copy exists
if one makes a second copy "created as an essential step in the utilization of
the computer program in conjunction with a machine and that it is used in no
other manner." This License Agreement presupposes that there is no exclusive
right to use in the Copyright Act, just an exclusive right to copy. However,
You may not make a copy for anyone else unless they are subject to the terms
of this License Agreement. Nor may You permit anyone to use Your copy or any
other copy You have made unless they are subject to the terms of this License
Agreement. You may not make a copy for Your own use or the use of anyone else
without the Author's leave to make that copy. And any use, modification,
copying, or distribution by anyone constitutes acceptance of the License
Agreement, for purposes of contract law. In other words, the License
Agreement is designed so that there is no loophole permitting anyone to claim
the ability to use, copy, distribute, or modify the Program or any Software
based on it without subjecting themselves voluntarily to its terms.
** On "Shrinkwrap," "Click-Wrap," "Use-Wrap" and "Copy-Wrap" License
Agreements: **
Arguably, some kinds of software license agreements have more in common with
legislation than they do with the bargained-for, negotiated agreements that
come to mind when most people think of "contracts." Particularly if a
software licensor has sufficient market power to be deemed a monopoly, or if
certain proposed expansions of the law of software licensing, masquerading as
"codifications," are widely adopted, the ability of a private entity to impose
legal prohibitions and duties on virtually everyone else as though the
licensor has assumed powers that customarily belong to legislative bodies is
both breathtaking and deeply troubling. Of course, we are hardly the first to
distribute software under a license agreement that imposes conditions on a
take-it-or-leave-it basis. This technique is, as everyone knows, extremely
common with proprietary software. And some of the conditions unilaterally
imposed by proprietary licensors range from the ridiculous to the obscene.
But even certain kinds of "free" and "open-source" software licenses, such as
the GPL, depend on the continued viability of legal rules that enable at least
some reasonable conditions to be imposed by software licensors on a
take-it-or-leave-it basis, with essentially automated methods of acceptance.
Courts have been divided as to how far these kinds of licensor-driven
automated agreements can go. And we cannot say that we will be unhappy if
courts or legislatures ultimately reach a consensus that sharply limits what
conditions licensors can impose through such mechanisms. However, while the
law is still developing, we think nothing could be more appropriate than to
enlist the techniques that institutions of power have used to limit freedom
and instead to re-purpose the techniques of "copy-wrap" or "use-wrap"
licensing by putting them to use for humanitarian purposes and using them to
promote the human rights of end-users. To deny us the use of these
techniques, courts and other law-making institutions would be required
simultaneously to disarm, to the same degree, proprietary software
manufacturers that possess vast market power. And, unlike the conditions
imposed by many proprietary vendors, the conditions we impose through this
License Agreement are hardly onerous for any end-user (unless, of course, the
end-user wants to act maliciously or engage in surveillance).
** No Warranty: **
Next, for each author's protection and our own, we want to make certain that
everyone understands that there is no warranty for this software. And, if the
software is modified by someone else and passed on, we want its recipients to
know that what they have is not the original, so that any problems introduced
by others will not reflect on the original authors' reputations.
** Software Patents: **
Software patents constantly threaten any project such as this one. We wish to
avoid the danger that redistributors of a HESSLA-licensed program will
individually obtain patent licenses, in effect making the program proprietary.
To prevent this, we have included terms by which any Author must, if it has
patented (or licensed a patent covering) any technology embodied in any
Program or Software released under this License Agreement, grant all HESSLA
Licensees of the Program or Software a royalty-free license of that
technology. Any Licensees who release derivative works, as permitted by this
License Agreement, are required to grant a royalty-free patent license of
any patented technology.
** Anyone Can Release Original Software Under The HESSLA: **
Although this License Agreement is drafted with Hacktivismo's objectives in
mind, perhaps it will meet other authors' needs as well. If You are
considering using this License Agreement for Your own software (meaning the
code is not a work based on Hacktivismo's program in which case all derivative
works must be released under this License Agreement but rather Your code is
original software that You have developed yourself) and if You have no special
reason to prefer this License Agreement to some license that has a more robust
and widely-understood track-record, then in most instances we encourage You to
use the GPL (or, even better, release concurrently under both the HESSLA and
the GPL), because a considerable body of interpretive literature and community
custom has grown up around that License Agreement. The Open Software License,
see <http://www.rosenlaw.com/osl.html>, is newer and has less of a track
record. But You may also want to consider that licensing option (as well as
the option of concurrent OSL/HESSLA licensing).
Any author of original software can release that software under this License
Agreement, if You choose to do so; not just Hacktivismo. Hacktivismo is the
author and owner of software released by Hacktivismo under this License
Agreement. But original software released by other Authors would be owned and
licensed by them.
Ultimately, we think it is important to emphasize to other Authors that
Programs they have written can be released under both the HESSLA and some
other license simultaneously (for, example, a program that is presently GPLed
by its Author can be released simultaneously under both the GPL and the
HESSLA, at the Author's discretion). If You are an Author of original work,
You need neither the permission of the Free Software Foundation nor of
Hacktivismo to elect to release software simultaneously under both licenses.
The advantage of such a voluntary double-licensing is that it will enable
developers to produce hybrid software packages (combining the functionality
available through, say, Hacktivismo's Six-Four APIs, with some of the
functionality of one or more popular GPL-licensed communications programs)
and to release the hybrid packages under the HESSLA, without causing those
developers to run afoul of the GPL, the HESSLA or both. Such an arrangement
maximizes the potential benefit to both the developer community and to
end-users worldwide. Software released under a BSD-style license, as a
general matter, can be used to produce a hybrid program, mixing
HESSLA-licensed code with code that was previously subject to a BSD license.
The HESSLA requires that, in such an instance, the hybrid code must be
released under the HESSLA (to avoid weakening the end-user protections and
affirmative rights afforded by the HESSLA). Hacktivismo is more than happy
to consult with any software developer about the license terms that should
apply to any Software that is derivative of any Program of which Hacktivismo
is Author. If another Author has released code under the HESSLA, then that
Author has primary decision-making authority about the manner in which his her
or its software is licensed, but Hacktivismo is happy to field any questions
that may be posed by such an Author or by any developer who is building on
another Author's HESSLAed code.
** License Revisions: ** This License Agreement is subject to revision, prior
to the release of the Hacktivismo Enhanced-Source Software License Agreement,
Version 1.0. We invite interested parties from the international academic and
legal communities to offer comments and suggestions on ways to improve this
License Agreement, prior to the time that The HESSLA version 1.0 is released.
The terms of the latest and most up-to-date version of this License Agreement,
up to and including version 1.0, shall be deemed automatically to supersede
the terms of any lower-numbered version of this License Agreement with respect
to any Licensee who became a Licensee under the lower-numbered version of the
HESSLA.
The terms of the latest and most up-to-date version of this License Agreement
will always be published on the Hacktivismo Website,
http://www.hacktivismo.com/.
The precise terms and conditions for copying, distribution, use and
modification follow.
** TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION, USE AND/OR MODIFICATION **
0. DEFINITIONS. The following are defined terms that, whenever used in
this License Agreement, have the following meanings:
0.1 Author: "Author" shall mean the copyright holder of an Original
Work (the "Program") released by the Author under this License
Agreement.
0.2 Copy: "Copy" shall mean everything and anything that constitutes
a copy according to copyright law, without limitation. A "copy"
does not become anything other than a "copy" merely because, for
example, a governmental or institutional employee duplicates the
Program or a part of it for another employee of the same
institution or Governmental Entity, or merely because it is
copied from one computer to another, or from one medium to another,
or multiple copies are made on the same medium, within the same
institutional or Governmental Entity.
0.3 Derivative Work: A "Derivative Work" or "work based on the Program"
shall mean either the Program itself or any work containing the
Program or a portion of it, either verbatim or with modifications
and/or translated into another language. (Hereinafter, translation
is included without limitation in the term "modification."). In
the unlikely event that, and to the extent that, this contractual
definition of "Derivative Work" is later determined by any tribunal
or dispute-resolution body to be different is scope from the
meaning of "derivative work" under the copyright law of any
country, then the broadest and most encompassing possible
definition either the contractual definition of "Derivative Work,"
or any broader and more encompassing statutory or legal
definition, shall control. Acceptance of this
contractually-defined scope of the term "Derivative Work" is a
mandatory pre-condition for You to receive any of the benefits
offered by this License Agreement.
0.3.1 Mere aggregation of another work not based on the Program
with the Program (or with a Derivative 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
Agreement.
0.4 License Agreement: When used in this License Agreement, the terms
"this License" or "this License Agreement" shall mean The
Hactivismo Enhanced-Source Software License Agreement, v. 0.1, or
any subsequent version made applicable under the terms of Section
15.
0.5 Licensee: The term "Licensee" shall mean You or any other Licensee,
whether or not a Qualified Licensee.
0.6 Original Work: "Original Work" shall mean a Program or other work
of authorship, or portion thereof, that is not a Derivative Work.
0.7 Program: The "Program," to which this License Agreement applies, is
the Original Work (including, but not limited to, computer
software) released by the Author under this License Agreement.
0.8 Qualified Licensee: A "Qualified Licensee" means a Licensee that
remains in full compliance with all terms and conditions of this
License Agreement. You are no longer a Qualified Licensee if, at
any time, You violate any terms of this License Agreement. Neither
the Program nor any Software based on the Program may be copied,
distributed, performed, displayed, used or modified by You, even
for Your own purposes, unless You are a Qualified Licensee. A
Licensee other than a Qualified Licensee remains subject to all
terms and conditions of this License Agreement, and to all remedies
for each cumulative violation as set forth herein. Loss of the
status of Qualified Licensee signifies that violation of any terms
of the License Agreement subjects a Licensee to loss of most of the
benefits that Qualified Licensees enjoy under this License
Agreement, and to additional remedies for all violations occurring
after the first violation.
0.9 Software: "Software" or "the Software" shall mean the Program, any
Derivative Work based on the Program or a portion thereof, and/or
any modified version of the Program or portion thereof, without
limitation.
0.10 Source Code: The term "Source Code" shall mean the preferred form
of a Program or Original Work for making modifications to it and
all available documentation describing how to access and modify
that Program or Original Work.
0.10.1 For an executable work, complete Source Code means all the
Source Code for all modules it contains, plus any associated
interface definition files, plus the scripts used to control
compilation and installation of the executable. However, as
a special exception, the Source Code distributed need not
include anything that is normally distributed (in either
source or binary form) with the major components (compiler,
kernel, and so on) of the operating system on which the
executable runs, unless that component itself accompanies the
executable.
0.10.2 "Object Code:" Because of certain peculiarities of current
export-control rules, "object code" of the Program, or any
modified version of the Program, or Derivative Work based on
the Program, must not be exported except by way of
distribution that is ancillary to the distribution of the
Source Code. The "Source Code" shall be understood as the
primary content transferred or exported by You, and the
"object code" shall be considered as merely an ancillary
component of any such export distribution.
0.11 Strong Cryptography: "Strong Cryptography" shall mean cryptography
no less secure than (for example, and without limitation) a
2048-bit minimum key size for RSA encryption, 1024-bit minimum key
size for Diffie-Hellman (El Gamal), or a 256-bit minimum key size
for AES and similar symmetric ciphers.
0.12 Substandard Key-Selection Technique: The term "Substandard
Key-Selection Technique" shall mean a method or technique to cause
encryption keys to be more easily guessed or less secure, such as
by (i) causing the selection of keys to be less than random, or
(ii) employing a selection process that selects among only a subset
of possible keys, instead of from among the largest set of possible
keys that can securely be used consistent with contemporary
knowledge about the cryptographic techniques employed by You. The
following illustrations elaborate on the foregoing definition:
0.12.1 If the key-generation or key-selection technique for the
encryption algorithm You employ involves the selection of one
or more prime numbers, or involves one or more mathematical
functions or concatenations performed on one or more prime
numbers, then each prime number should be selected from a
very large set of candidate prime numbers, but not
necessarily from the set of all possible prime numbers (e.g.,
inclusion of the number 1 in the candidate set, for example,
may in some instances reduce rather than enhance security),
and absolutely not from any artificially small set of
candidate primes that makes the guessing of a key easier than
would be the case if a secure key-generation technique were
employed. In all instances, the primes should be selected at
random from among the candidate set. If there is a customary
industry standard for maximizing the security associated with
the key-generation or key-selection technique for the
cryptosystem You select, then (with attention also to the
requirements of Section 0.11), You should employ a
key-generation or selection technique no less secure than the
customary industry standard for secure use of the
cryptosystem.
0.12.2 If the key-generation or key-selection technique for the
encryption algorithm You employ involves the selection of a
random integer, or the transformation of a random integer
through one or more mathematical processes, then the
selection of the integer shall be at random from the largest
possible set of all possible integers consistent with the
secure functioning of the encryption algorithm. It shall not
be selected from an artificially small set of integers (e.g.,
if a 256-bit random integer serves as the key, then You could
not set 200 of the 256 bits as "0," and randomly generate
only the remaining 56 bits producing effectively a 56-bit
keylength instead of using the full 256 bits).
0.12.3 In other words, Your key-generation technique must promote
security to the maximum extent permitted by the cryptographic
method(s) and keylength You elect to employ, rather than
facilitating eavesdropping or surveillance in any way. The
example of GSM telephones, in which 16 of 56 bits in each
encryption key were set at "0," thereby reducing the security
of the system by a factor of 65,536, is particularly salient.
Such artificial techniques to reduce the security of a
cryptosystem by selecting keys from only a less-secure or
suboptimal subset of possible keys, is prohibited and will
violate this License Agreement if any such technique is
employed in any Software.
0.13 You: Each Licensee (including, without limitation, Licensees that
have violated the License Agreement and who are no longer
Qualified Licensees, but who nevertheless remain subject to all
requirements of this License Agreement and to all cumulative
remedies for each successive violation), is referred to as "You."
0.13.1 Governmental Entity: "You" explicitly includes any and all
"Governmental Entities," without limitation. "Governmental
Entity" or "Governmental Entities," when used in this License
Agreement, shall mean national governments, sub-national
governments (for example, and without limitation, provincial,
state, regional, local and municipal governments, autonomous
governing units, special districts, and other such entities),
governmental subunits (without limitation, governmental
agencies, offices, departments, government corporations, and
the like), supra-national governmental entities such as the
European Union, and entities through which one or more
governments perform governmental functions or exercise
governmental power in coordination, cooperation or unison.
0.13.2 Governmental Person: "You" also explicitly includes
"Governmental Persons." The terms "Governmental Person" or
"Governmental Persons," when used in this License Agreement,
shall mean the officials, officers, employees,
representatives, contractors and agents of any Governmental
Entity.
1. Application of License Agreement. This License Agreement applies to
any Program or other Original Work of authorship that contains a notice
placed by the Author saying it may be distributed under the terms of
this License Agreement. The preferred manner of placing such a notice
is to include the following statement immediately after the copyright
notice for such an Original Work:
"Licensed under the Hacktivismo Enhanced-Source Software License
Agreement, Version 0.1"
2. Means of Acceptance: Use, Copying, Distribution or Modification By
Anyone Constitutes Acceptance. Subject to Section 14.1 (concerning the
special case of certain Governmental Entities) any copying,
modification, distribution, or use by You of the Program or any
Software, shall constitute Your acceptance of all terms and conditions
of this License Agreement.
2.1 As a Licensee, You may not authorize, permit, or enable any person
to use the Program or any Software or Derivative Work based on it
(including any use of Your copy or copies of the Program) unless
such person has accepted this License Agreement and has become a
Licensee subject to all its terms and conditions.
2.2 You may not make any copy for Your own use unless You have accepted
this License Agreement and subjected yourself to all its terms and
conditions.
2.3 You may not make a copy for the use of any other person, or
transfer a copy to any other person, unless such person is a
Licensee that has accepted this License Agreement and such person
is subject to all terms and conditions of this License Agreement.
2.4 It is not the position of Hacktivismo that copyright law confers an
exclusive right to use, as opposed to the exclusive right to copy
the Software. However, for purposes of contract law, any use of
the Software shall be considered to constitute acceptance of this
License Agreement. Moreover, all copying is prohibited unless the
recipient of a copy has accepted the License Agreement. Because
each such recipient Licensee is contractually obligated not to
permit anyone to access, use, or secure a copy of the Software,
without first accepting the terms and conditions of this License
Agreement, use by non-Licensees is effectively prohibited
contractually because nobody can obtain a copy of, or access to a
copy of, any Software without (1) accepting the License Agreement
through use, and (2) triggering some Licensee's obligation to
require acceptance as a precondition of copying or access.
3. "Qualified Licensee" Requirement: Neither the Program nor any Software
or Derivative Work based on the Program may be copied, distributed,
displayed, performed, used or modified by You, even for Your own
purposes, unless You are a "Qualified Licensee." To remain a Qualified
Licensee, You must remain in full compliance with all terms and
conditions of this License Agreement.
4. License Agreement Is Exclusive Source of All Your Rights:
4.1 You may not copy, modify, or distribute the Program, or obtain any
copy, except as expressly provided under this License Agreement.
Any attempt otherwise to copy, modify, obtain a copy, sublicense or
distribute the Program is void, and will automatically terminate
Your rights under this License Agreement and subject You to all
cumulative remedies for each successive violation that may be
vailable to the Author. However, Qualified Licensees who have
received copies from You (and thereby have received rights from the
Author) under this License Agreement, and who would otherwise
qualify as Qualified Licensees, will not have their rights under
their License Agreements suspended or restricted on account of
anything You do, so long as such parties remain in full compliance.
4.2 You are not required to accept this License Agreement and prior to
the time You elect to become a Licensee and accept this License
Agreement, You may always elect instead not to copy, use, modify,
distribute, compile, or perform the Program or any Software
released under this License Agreement. However, nothing else
grants You permission to copy, to obtain or possess a copy, to
compile a copy in object code or executable code from a copy in
source code, to modify, or to distribute the Program or any
Software based on the Program. These actions are prohibited by law
if You do not accept this License Agreement. Additionally, as set
forth in Section 2, any use, copying or modification of the
Software constitutes acceptance of this License Agreement by You.
4.3 Each time You redistribute the Program (or any Software or
Derivative Work based on the Program), the recipient automatically
receives a License Agreement from the Author to copy, distribute,
modify, perform or display the Software, subject to the terms and
conditions of this License Agreement. You may not impose any
further restrictions on the recipients' exercise of the rights
granted herein. You are not responsible for enforcing compliance
by third parties to this License Agreement. Enforcement is the
responsibility of the Author.
5. Grant of Source Code License.
5.1 Source Code Always Available from Author: Author hereby promises
and agrees except to the extent prohibited by export-control law
to provide a machine-readable copy of the Source Code of the
Program at the request of any Licensee. Author reserves the right
to satisfy this obligation by placing a machine-readable copy of
the Source Code of the most current version of the Program in an
information repository reasonably calculated to permit inexpensive
and convenient access by You for so long as Author continues to
distribute the Program, and by publishing the address of that
information repository in a notice immediately following the
copyright notice that applies to the Program. Every copy of the
Program distributed by Hacktivismo (but not necessarily every other
Author) consists of the Source Code accompanied, in some instances,
by an ancillary distribution of compiled Object Code, but the
continued availability of the Source Code from the Author addresses
the possibility that You might have (for any reason) not received
from someone else a complete, current, copy of the Source Code
(lack of which would, for example, prevent You from exporting
copies to others without violating this license, see Section 8).
5.2 Grant of License. If and only if, and for so long as You remain a
Qualified Licensee, in accordance with Section 3 of this License
Agreement, Author hereby grants You a world-wide, royalty-free,
non-exclusive, non-sublicensable copyright license to do the
following:
5.2.1 to reproduce the Source Code of the Program in copies;
5.2.2 to prepare Derivative Works based upon the Program and to
edit or modify the Source Code in the process of preparing
such Derivative Works;
5.2.3 to distribute copies of the Source Code of the Original Work
and/or of Derivative Works to others, with the proviso that
copies of Original Work or Derivative Works that You
distribute shall be licensed under this License Agreement,
and that You shall fully inform all recipients of the terms
of this License Agreement.
6. Grant of Copyright License. If and only if, and for so long as You
remain a Qualified Licensee, in accordance with Section 3 of this
License Agreement, Author hereby grants You a world-wide, royalty-free,
non-exclusive, non-sublicensable license to do the following:
6.1 to reproduce the Program in copies;
6.2 to prepare Derivative Works based upon the Program, or upon
Software that itself is based on the Program;
6.3 to distribute (either by distributing the Source Code, or by
distributing compiled Object Code, but any export of Object Code
must be ancillary to a distribution of Source Code) copies of the
Program and Derivative Works to others, with the proviso that
copies of the Program or Derivative Works that You distribute shall
be licensed under this License Agreement, that You shall fully
inform all recipients of the terms of this License Agreement;
6.4 to perform the Program or a Derivative Work publicly;
6.5 to display the Program or a Derivative Work publicly; and
6.6 to charge a fee for the physical act of transferring a copy of the
Program (You may also, at Your option, offer warranty protection in
exchange for a fee).
7. Grant of Patent License. If and only if, and for so long as You remain
a Qualified Licensee, in accordance with Section 3 of this License
Agreement, Author hereby grants You a world-wide, royalty-free,
non-exclusive, non-sublicensable license Agreement, under patent claims
owned or controlled by the Author that are embodied in the Program as
furnished by the Author ("Licensed Claims") to make, use, sell and
offer for sale the Program. Subject to the proviso that You grant all
Licensees a world-wide, non-exclusive, royalty-free license under any
patent claims embodied in any Derivative Work furnished by You, Author
hereby grants You a world-wide, royalty-free, non-exclusive,
non-sublicensable license under the Licensed Claims to make, use, sell
and offer for sale Derivative Works.
8. Exclusions From License Agreement Grants. Nothing in this License
Agreement shall be deemed to grant any rights to trademarks,
copyrights, patents, trade secrets or any other intellectual property
of Licensor except as expressly stated herein. No patent license is
granted to make, use, sell or offer to sell embodiments of any patent
claims other than the Licensed Claims defined in Section 7. No right
is granted to the trademarks of Author even if such marks are included
in the Program. Nothing in this License Agreement shall be interpreted
to prohibit Author from licensing under additional or different terms
from this License Agreement any Original Work, Program, or Derivative
Work that Author otherwise would have a right to License.
8.1 Implied Endorsements Prohibited. Neither the name of the Author
(in the case of Programs and Original Works released by
Hacktivismo, the name "Hacktivismo"), nor the names of contributors
who helped produce the Program may be used to endorse or promote
modifications of the Program, any Derivative Work, or any Software
other than the Program, without specific prior written permission
of the Author. Neither the name of Hacktivismo nor the names of
any contributors who helped write the Program may be used to
endorse or promote any Program or Software released under this
License Agreement by any person other than Hacktivismo.
9. Modifications and Derivative Works. Only Qualified Licensees may
modify the Software or prepare or distribute Derivative Works. If You
are a Qualified Licensee, Your authorization to modify the Software or
prepare or distribute Derivative Works (including permission to
prepare and/or distribute Derivative Works, as provided in Sections
5.2.2, 5.2.3, 6.2, 6.3, and 6.6) is subject to each and all of the
following mandatory terms and conditions (9.1 through 9.6, inclusive):
9.1 You must cause the modified files to carry prominent notices
stating that You changed the files and the date of any change;
9.2 If the modified Software normally reads commands interactively when
run, You must cause it, when started running for such interactive
use in the most ordinary way, to print or display an announcement
including an appropriate copyright notice and a notice that there
is no warranty (or else, saying that You provide a warranty) and
that users may redistribute the program under this License
Agreement, and telling the user how to view a copy of this License
Agreement. (Exception: if the Program itself is interactive but
does not normally print such an announcement, Your Derivative Work
based on the Program is not required to print an announcement.);
9.3 Any Program, Software, or modification thereof copied or
distributed by You, that incorporates any portion of the Original
Work, must not contain any code or functionality that subverts
the security of the Software or the end-user's expectations of
privacy, anonymity, confidentiality, authenticity, and trust,
including (without limitation) any code or functionality that
introduces any "backdoor," escrow mechanism, "spy-ware," or
surveillance techniques or methods into any such Program, Software,
or modification thereof;
9.4 Any Program, Software, or modification thereof copied or
distributed by You, that employs any cryptographic or other
security, privacy, confidentiality, authenticity, and/or trust
methods or techniques, including without limitation any Derivative
Work that includes any changes or modifications to any
cryptographic techniques in the Program, shall employ Strong
Cryptography.
9.5 Any Program, Software, or modification thereof copied or
distributed by You, if it contains any key-generation or
selection technique, must not employ any Substandard
Key-Selection Technique.
9.6 No Program or Software copied or distributed by You may transmit or
communicate any symmetric key, any "private key" if an asymmetric
cryptosystem is employed, or any part of such key, nor may it
otherwise make any such key or part of such key known, to any
person other than the end-user who generated the key, without the
active consent and participation of that individual end-user. If
a private or symmetric key is stored or recorded in any manner, it
must not be stored or recorded in plaintext, and it must be
protected from reading (at a minimum) by use of a password. Use of
steganography or other techniques to disguise the fact that a
private or symmetric key is even stored is strongly encouraged, but
not absolutely required.
10. Use Restrictions: Human Rights Violations Prohibited.
10.1 Neither the Program, nor any Software or Derivative Work based on
the Program may used by You for any of the following purposes
(10.1.1 through 10.1.5, inclusive):
10.1.1 to violate or infringe any human rights or to deprive any
person of human rights, including, without limitation, rights
of privacy, security, collective action, expression,
political freedom, due process of law, and individual
conscience;
10.1.2 to gather evidence against any person to be used to deprive
any person of human rights;
10.1.3 any other use as a part of any project or activity to deprive
any person of human rights, including not only the
above-listed rights, but also rights of physical security,
liberty from physical restraint or incarceration, freedom
from slavery, freedom from torture, freedom to take part in
government, either directly or through lawfully elected
representatives, and/or freedom from self-incrimination;
10.1.4 any surveillance, espionage, or monitoring of individuals,
whether done by a Governmental Entity, a Governmental Person,
or by any non-governmental person or entity;
10.1.5 censorship or "filtering" of any published information or
expression.
10.2 Additionally, the Program, any modification of it, or any Software
or Derivative Work based on the Program may not be used by any
Governmental Entity or other institution that has any policy or
practice (whether official or unofficial) of violating the human
rights of any persons.
10.3 You may not authorize, permit, or enable any person (including,
without limitation, any Governmental Entity or Governmental Person)
to use the Program or any Software or Derivative Work based on it
(including any use of Your copy or copies of the Program) unless
such person has accepted this License Agreement and has become a
Licensee subject to all its terms and conditions, including
(without limitation) the use restrictions embodied in Section 10.1
and 10.2, inclusive.
11. All Export Distributions Must Consist of or Be Ancillary to
Distribution of Source Code. Because of certain peculiarities of
current export-control law, any distribution by You of the Program or
any Software may be in the form of Source Code only, or in the form or
Source Code accompanied by compiled Object Code, but You may not export
any Software in the form of compiled Object Code only. Such an export
distribution of compiled executable code must in all cases be ancillary
to a distribution of the complete corresponding machine-readable source
code, which must be distributed on a medium, or by a method,
customarily used for software interchange.
12. EXPORT LAWS: THIS LICENSE AGREEMENT ADDS NO RESTRICTIONS TO THE EXPORT
LAWS OF YOUR JURISDICTION. It is Your responsibility to comply with
any export regulations applicable in Your jurisdiction. From the
United States, Canada, or many countries in Europe, export or
transmission of this Software to certain embargoed destinations
(including, but not necessarily limited to, Cuba, Iran, Iraq, Libya,
North Korea, Sudan, and Syria), may be prohibited. If Hacktivismo is
identified as the Author of the Program (and it is not the property of
some other Author), then export to any national of Cuba, Iran, Iraq,
Libya, North Korea, Sudan or Syria, or into the territory of any of
these countries, by any Licensee who has received this Software
directly from Hacktivismo or from the Cult of the Dead Cow, or any of
their members, is contractually prohibited and will constitute a
violation of this License Agreement. You are advised to consult the
current laws of any and all countries whose laws may apply to You,
before exporting this Software to any destination. Special care
should be taken to avoid export to any embargoed destination. An
Author other than Hacktivismo may substitute that Author's legal
name for "Hacktivismo" in this Paragraph, in relation to any Program
released by that Author under this Paragraph.
13. Contrary Judgments, Settlements and Court Orders. If, as a consequence
of a court judgment or allegation of patent infringement or for any
other reason (not limited to patent issues), conditions are imposed on
You (whether by court order, agreement or otherwise) that contradict
the conditions of this License Agreement, they do not excuse You from
the conditions of this License Agreement. If You cannot distribute so
as to satisfy simultaneously Your obligations under this License
Agreement and any other pertinent obligations, then as a consequence
You may not distribute the Software at all. For example, if a patent
license would not permit royalty-free redistribution of the Program by
all those who receive copies directly or indirectly through You, then
the only way You could satisfy both it and this License Agreement
would be to refrain entirely from distribution of the Program.
It is not the purpose of this Section 13 to induce You to infringe any
patents or other property right claims or to contest validity of any
such claims; this Section has the sole purpose of protecting the
integrity of the software distribution system reflected in this License
Agreement, which is implemented by public license practices. Many
people have made generous contributions to the wide range of software
distributed through related distribution systems, in reliance on
consistent application of such distribution systems; it is up to the
Author/donor to decide if he or she is willing to distribute software
through any other system and a Licensee cannot impose that choice.
14. Governmental Entities: Any Governmental Entity ("Governmental Entity"
is defined broadly as set forth in Section 0.13.1) or Governmental
Person (as "Governmental Person" is defined broadly in Section
0.13.2), that uses, modifies, changes, copies, displays, performs, or
distributes the Program, or any Software or Derivative Work based on
the Program, may do so if and only if all of the following terms and
conditions (14.1 through 14.10, inclusive) are agreed to and fully met:
14.1 If it is the position of any Governmental Entity (or, in the case
of any "Governmental Person," if it is the position of that
Governmental Person's Governmental Entity) that any doctrine or
doctrines of law (including, without limitation, any doctrine(s)
of immunity or any formalities of contract formation) may render
this License Agreement unenforceable or less than fully enforceable
against such Governmental Entity, or any Governmental Person of
such Governmental Entity, then prior to any use, modification,
change, display, performance, copy or distribution of the Program,
or of any Software or Derivative Work based on the Program, or any
part thereof, by the Governmental Entity, or by any Governmental
Person of that Governmental Entity, the Governmental Entity shall
be required to inform the Author in writing of each such doctrine
that is believed to render this License Agreement or any part of it
less than fully enforceable against such Governmental Entity or any
Governmental Person of such entity, and to explain in reasonable
detail what additional steps, if taken, would render the License
Agreement fully enforceable against such entity or person. Failure
to provide the required written notice to the Author in advance of
any such use, modification, change, display, performance, copy or
distribution, shall constitute an irrevocable and conclusive waiver
of any and all reliance on any doctrine, by the Governmental
Entity, that is not included or that is omitted from the required
written notice (failure to provide any written notice means all
reliance on any doctrine is irrevocably waived). Any Governmental
Entity that provides written notice under this subsection is
prohibited, as are all of the Governmental Persons of such
Governmental Entity, from making any use, change, display,
performance, copy, modification or distribution of the Software
or any part thereof, until such time as a License Agreement is in
place, agreed upon by the Author and by the Governmental Entity,
that such entity concedes is fully-enforceable. Any use,
modification, change, display, performance, copy, or distribution
following written notice under this Paragraph, but without the
implementation of an agreement as provided herein, shall constitute
an irrevocable and conclusive waiver by the Governmental Entity
(and any and all Governmental Persons of such Governmental Entity)
of any and all reliance on any legal doctrine either referenced in
such written notice or omitted from it.
14.2 Any Governmental Entity that uses, copies, changes, modifies, or
distributes, the Software or any part or portion thereof, or any
Governmental Person who does so (whether that person's Governmental
Entity contends the person's action was, or was not, authorized or
official), permanently and irrevocably waives any defense based on
sovereign immunity, official immunity, the Act of State Doctrine,
or any other form of immunity, that might otherwise apply as a
defense to, or a bar against, any legal action based on the terms
of this License Agreement.
14.2.1 With respect to any enforcement action brought by the Author
in a United States court against a foreign Governmental
Entity, the waiver by any Governmental Entity as provided in
Subparagraphs 14.1 and 14.2 is hereby expressly
acknowledged by each such Governmental Entity to constitute
a "case...in which the foreign state has waived its
immunity," within the scope of 28 U.S.C. § 1605(a)(1) of the
Foreign Sovereign Immunities Act of 1976 (as amended). Each
such Governmental Entity also specifically agrees and
concedes that the "commercial activity" exceptions to the
FSIA, 28 U.S.C. § 1605(a)(2), (3) are also applicable. With
respect to an action brought against the United States or any
United States Governmental Entity, in the courts of any
country, the U.S. Governmental Entity shall be understood to
have voluntarily agreed to a corresponding waiver of immunity
from actions in the courts of any other sovereign.
14.2.2 With respect to any enforcement action brought by an
authorized end-user (as a third-party beneficiary, under the
terms of Subparagraphs 14.3 and 14.10) in a United States
court against a foreign Governmental Entity, the waiver by
any Governmental Entity as provided in Subparagraphs 14.1
and 14.2 is hereby expressly acknowledged by each such
Governmental Entity to constitute a "case...in which the
foreign state has waived its immunity," within the scope of
28 U.S.C. § 1605(a)(1) of the Foreign Sovereign Immunities
Act of 1976 (as amended). Each such Governmental Entity also
specifically agrees and concedes that the "commercial
activity" exceptions to the FSIA, 28 U.S.C. § 1605(a)(2), (3)
are also applicable. With respect to an action brought
against the United States or any United States Governmental
Entity, in the courts of any country, the U.S. Governmental
Entity shall be understood to have voluntarily agreed to a
corresponding waiver of immunity from actions in the courts
of any other sovereign.
14.2.3 With respect to any action or effort by the Author in the
United States to execute a judgment against a foreign
Governmental Entity, by attaching or executing process
against the property of such Governmental Entity, the
waiver by any Governmental Entity as provided in
Subparagraphs 14.1 and 14.2 is hereby expressly
acknowledged by each such Governmental Entity to
constitute a case in which "the foreign state has waived its
immunity from attachment in aid of execution or from
execution," in accordance with 28 U.S.C. § 1610(a)(1) of the
Foreign Sovereign Immunities Act of 1976 (as amended). Each
such Governmental Entity also specifically agrees and
concedes that the "commercial activity" exceptions to the
FSIA, 28 U.S.C. § 1610(a)(2), (d) are also applicable. With
respect to an action brought against the United States or any
United States Governmental Entity, in the courts of any
country, the U.S. Governmental Entity shall be understood to
have voluntarily agreed to a corresponding waiver of immunity
from actions in the courts of any other sovereign.
14.2.4 With respect to any action or effort brought by an authorized
end-user (as a third-party beneficiary, in accordance with
Subparagraphs 14.3 and 14.10) in the United States to execute
a judgment against a foreign Governmental Entity, by
attaching or executing process against the property of such
Governmental Entity, the waiver by any Governmental Entity as
provided in Subparagraphs 14.1 and 14.2 is hereby expressly
acknowledged by each such Governmental Entity to constitute a
case in which "the foreign state has waived its immunity
from attachment in aid of execution or from execution," in
accordance with 28 U.S.C. § 1610(a)(1) of the Foreign
Sovereign Immunities Act of 1976 (as amended). Each such
Governmental Entity also specifically agrees and concedes
that the "commercial activity" exceptions to the FSIA, 28
U.S.C. § 1610(a)(2), (d) are also applicable. With respect
to an action brought against the United States or any United
States Governmental Entity, in the courts of any country, the
U.S. Governmental Entity shall be understood to have
voluntarily agreed to a corresponding waiver of immunity from
actions in the courts of any other sovereign.
14.3 Any Governmental Entity that uses, copies, changes, modifies,
displays, performs, or distributes the Software or any part
thereof, or any Governmental Person who does so (whether that
person's Governmental Entity contends the person's action was, or
was not, authorized or official), and thereby violates any terms
and conditions of Section 9 (restrictions on modification), or
Paragraph 10 (use restrictions), agrees that the person or entity
is subject not only to an action by the Author, for the
enforcement of this License Agreement and for money damages and
injunctive relief (as well as attorneys' fees, additional and
statutory damages, and other remedies as provided by law), but
such Governmental Entity and/or Person also shall be subject to a
suit for money damages and injunctive relief by any person whose
human rights have been violated or infringed, in violation of this
License Agreement, or through the use of any Software in violation
of this License Agreement. Any person who brings an action under
this section against any Governmental Person or Entity must notify
the Author promptly of the action and provide the Author the
opportunity to intervene to assert the Author's own rights.
Damages in such a third-party action shall be measured by the
severity of the human rights violation and the copyright
infringement or License Agreement violation, combined, and not
merely by reference to the copyright infringement. All end-users,
to the extent that they are entitled to bring suit against such
Governmental Entity by way of this License Agreement, are
intended third-party beneficiaries of this License Agreement.
Punitive damages may be awarded in such a third-party action
against a Governmental Entity or Governmental Person, and each
and every such Governmental Entity or Person conclusively waives
all restrictions on the amount of punitive damages, and all
defenses to the award of punitive damages to the extend such
limitations or defenses depend upon or are a function of such
person or entity's status as a Governmental Person or Governmental
Entity.
14.4 Any State of the United States, or any subunit or Governmental
Entity thereof, that uses, copies, changes, modifies, displays,
performs, or distributes the Software of any part thereof, or any
of whose Governmental Persons does so (whether that person's
Governmental Entity contends the person's action was, or was not,
authorized or official), unconditionally and irrevocably waives
for purposes of any legal action (i) to enforce this License
Agreement, (ii) to remedy infringement of the Author's copyright,
or (iii) to invoke any of the third-party beneficiary rights set
forth in Section 14.3 -- any immunity under the Eleventh Amendment
of the United States Constitution or any other immunity doctrine
(such as sovereign immunity or qualified, or other, official
immunity) that may apply to state governments, subunits, or to
their Governmental Persons.
14.5 Any Governmental Entity (including, without limitation, any State
of the United States), that uses, copies, changes, modifies,
performs, displays, or distributes the Software or any part
thereof, or any of whose Governmental Persons does so (whether
that person's Governmental Entity contends the person's action
was, or was not, authorized or official), unconditionally and
irrevocably waives for purposes of any legal action (i) to
enforce this License Agreement, (ii) to remedy infringement of
the Author's copyright, or (iii) to invoke any of the third-party
beneficiary rights set forth in Section 14.3 any doctrine (such
as, but not limited to, the holding in the United States Supreme
Court decision of Ex Parte Young) that might purport to limit
remedies solely to prospective injunctive relief. Also
explicitly and irrevocably waived is any underlying immunity
doctrine that would require the recognition of such a limited
exception for purposes of remedies. The remedies against such
governmental entities and persons shall explicitly include money
damages, additional damages, statutory damages, consequential
damages, exemplary damages, punitive damages, costs and fees that
might otherwise be barred or limited in amount on account of
governmental status.
14.6 Any Governmental Entity that uses, copies, changes, modifies,
displays, performs, or distributes the Software or any part
thereof, or any of whose Governmental Persons does so (whether
that person's Governmental Entity contends the person's action
was, or was not, authorized or official), unconditionally and
irrevocably waives for purposes of any legal action (i) to
enforce this License Agreement, (ii) to remedy infringement of the
Author's copyright, or (iii) to invoke any of the third-party
beneficiary rights set forth in Section 14.3 any and all
reliance on the Act of State doctrine, sovereign immunity,
international comity, or any other doctrine of immunity whether
such doctrine is recognized in that government's own courts, or in
the courts of any other government or nation.
14.6.1 Consistent with Subparagraphs 14.2.1 through 14.2.4, this
waiver shall explicitly be understood to constitute a waiver
not only against suit, but also against execution against
property, for purposes of the Foreign Sovereign Immunities
Act of 1976 (as amended). All United States Governmental
Entities shall be understood to have agreed to a
corresponding waiver of immunity against (i) suit in the
courts of other sovereigns, and (ii) execution against
property of the United States located within the territory
of other countries.
14.7 Governmental Persons, (i) who violate this License Agreement
(whether that person's Governmental Entity contends the person's
action was, or was not, authorized or official), or (ii) who are
personally involved in any activity, policy or practice of a
governmental entity that violates this License Agreement (whether
that person's Governmental Entity contends the person's action
was, or was not, authorized or official), or (iii) that use, copy,
change, modify, perform, display or distribute, the Software or
any part thereof, when their Governmental Entity is not permitted
to do so, or is not a Qualified Licensee, or has violated the
terms of this License Agreement, each and all individually waive
and shall not be permitted to assert any defense of official
immunity, "good faith" immunity, qualified immunity, absolute
immunity, or other immunity based on his or her governmental
status.
14.8 No Governmental Entity, nor any Governmental Person thereof may,
by legislative, regulatory, or other action, exempt such
Governmental Entity, subunit, or person, from the terms of this
License Agreement, if the Governmental Entity or any such person
has voluntarily used, modified, copied, displayed, performed, or
distributed the Software or any part thereof.
14.9 Enforcement In Courts of Other Sovereigns Permitted. By using,
modifying, changing, displaying, performing or distributing any
Software covered by this License Agreement, any Governmental
Entity hereby voluntarily and irrevocably consents, for purposes
of (i) any action to enforce the terms of this License Agreement,
and (ii) any action to enforce the Author's copyright (whether
such suit be for injunctive relief, damages, or both) to the
jurisdiction of any court or tribunal in any other country (or a
court of competent jurisdiction of a subunit, province, or state
of such country) in which the terms of this License Agreement
are believed by the Author to be enforceable. Each such
Governmental Entity hereby waives all objections to personal
jurisdiction, all objections based on international comity, all
objections based on the doctrine of forum non conveniens, and all
objections based on sovereign or governmental status or immunity
that might otherwise be asserted in the courts of some other
sovereign.
14.9.1 The Waiver by any Governmental Entity of a country other than
the United States shall be understood explicitly to
constitute a waiver for purposes of the Foreign Sovereign
Immunities Act of 1976 (see Subparagraphs 14.2.1to 14.2.4,
inclusive, supra), and all United States Governmental
Entities shall be understood to have agreed to a waive
correspondingly broad in scope with respect to actions
brought in the courts of other sovereigns.
14.9.2 Forum Selection - Non-U.S. Governmental Entities.
Governmental Entities that are not United States Governmental
Entities shall be subject to suit, and agree to be subject to
suit, in the United States District Court for the District of
Columbia. The Author or an authorized end-user may bring an
action in another court in another country, but the United
States District Court for the District of Columbia, shall
always be available as an agreed-upon forum for such an
action. At the optional election of any Author (or, in the
case of a third-party claim, any end-user asserting rights
under Subparagraphs 14.3 and 14.10), such a suit against a
non-U.S. Governmental Entity or Person may be brought in the
United States District Court for the Southern District of New
York, or the United States District Court for the Northern
District of California, as a direct substitute for the United
States District Court for the District of Columbia, for all
purposes of this Subparagraph.
14.9.3 Forum Selection - U.S. Governmental Entities. All United
States Governmental Entities shall be subject to suit, and
agree to be subject to suit, in the following (non-exclusive)
list of fora: Ottawa, Canada, London, England, and Paris,
France. The Author or an authorized end-user may bring
action in another court that can exercise jurisdiction. But
the courts in these three locations shall always be available
(at the option of the Author or an authorized end-user) as a
forum for resolving any dispute with the United States or a
governmental subunit thereof. Except as provided in
Subparagraph 14.10, any and all United States Governmental
Persons shall be subject to suit wherever applicable rules of
personal jurisdiction and venue shall permit such suit to be
filed, but no such United States Governmental Person may
assert any defense based on forum non conveniens or
international comity, to the selection of any particular
lawful venue.
14.10 Enforcement Of Claims For Human Rights Violations. By using,
copying, modifying, changing, performing, displaying or
distributing the Software covered by this License Agreement, any
Governmental Entity, or Governmental Person hereby voluntarily
and irrevocably consents -- for purposes of any third-party
action to remedy human rights violations and other violations of
this License Agreement (as reflected in Section 14.3) -- to the
jurisdiction of any court or tribunal in any other country (or a
court of competent jurisdiction of a subunit, province, or state
of such country) in which the third-party beneficiary reasonably
believes the relevant terms of this License Agreement are
enforceable. The Governmental Entity or Person hereby waives all
objections to personal jurisdiction, all objections based on
international comity, all objections based on the doctrine of
forum non conveniens, and all objections based on sovereign or
governmental status or immunity that might otherwise be asserted
in the courts of some other sovereign.
14.10.1 Waiver of Immunity and Forum Selection. The presumptively
valid and preferred fora identified in Subparagraphs 14.9.2
and 14.9.3 shall also apply for purposes of Subparagraph
14.10. All Governmental Entities are subject to the same
Waiver of Immunity as set forth in Subparagraphs 14.2.1 to
14.2.4, inclusive.
15. Subsequent Versions of HESSLA. Hacktivismo may publish revised and/or
new versions of the Hacktivismo Enhanced-Source Software License
Agreement from time to time. Such new versions will be similar in
spirit to the present version, but may differ in detail to address new
problems or concerns.
Each version is given a distinguishing version number. Any Program
released by Hacktivismo under a version of this License Agreement
prior to Version 1.0, shall be considered released under Version 1.0
of the Hacktivismo Enhanced-Source Software License Agreement, onc
Version 1.0 is formally released. Prior to Version 1.0, any Software
released by Hacktivismo or a Licensee of Hacktivismo under a
lower-numbered version of the HESSLA shall be considered automatically
to be subject to a higher-number version of the HESSLA, whenever a
later-numbered version has been released.
Concerning the work of any other Author, if the Program specifies a
version number of this License Agreement which applies to it and "any
later version," You have the option of following the terms and
conditions either of that version or of any later version published by
Hacktivismo. If the Program does not specify a version number of this
License Agreement, You may choose any version after 1.0, once version
1.0 is published by Hacktivismo, and prior to publication of version
1.0, You may choose any version of the Hacktivismo Software License
Agreement then published by Hacktivismo. If the Program released by
another Author, specifies only a version number, then that version
number only shall apply. If "the latest version," is specified, then
the latest version of the HESSLA published on the Hacktivismo Website
shall always apply at all times.
16. DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED UNDER THIS LICENSE ON
AN "AS IS" BASIS, WITHOUT WARRANTY, EITHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF NON-INFRINGEMENT AND
WARRANTIES THAT THE ORIGINAL WORK IS MERCHANTABLE OR FIT FOR A
PARTICULAR PURPOSE. THE SOFTWARE IS PROVIDED WITH ALL FAULTS. THE
ENTIRE RISK AS TO THE QUALITY OF THE ORIGINAL WORK IS WITH YOU. SHOULD
THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY
SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY
CONSTITUTES AN ESSENTIAL PART OF THIS LICENSE. NO LICENSE TO ORIGINAL
WORK IS GRANTED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
17. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL
THEORY, WHETHER TORT (INCLUDING THE AUTHOR'S NEGLIGENCE), CONTRACT, OR
OTHERWISE, SHALL THE AUTHOR BE LIABLE TO ANY PERSON FOR ANY DIRECT,
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY
CHARACTER ARISING AS A RESULT OF THIS LICENSE OR THE USE OF THE
SOFTWARE 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 PERSON 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, BUT SHALL EXCLUDE SUCH LIABILITY TO THE
EXTENT PERMITTED BY LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION
AND LIMITATION MAY NOT APPLY TO YOU.
18. ENCRYPTION KEYS AND PUBLIC KEY INFRASTRUCTURE. SOFTWARE RELEASED UNDER
THIS LICENSE AGREEMENT MAY REQUIRE A DIGITAL CERTIFICATE, OR AN
ENCRYPTION KEY "SIGNED" BY A TRUSTED PARTY, TO FUNCTION. AUTHOR
UNDERTAKES NO RESPONSIBILITY FOR THE PROPER, SECURE, AND ADEQUATE
FUNCTIONING OF ANY CRYPTOGRAPHIC SYSTEMS, OF ANY CRYPTOGRAPHIC KEYS, OR
FOR THE TRUSTWORTHINESS OF ANY END-USER, ANY ISSUER OF CERTIFICATES, OR
OF ANY SIGNER OF ENCRYPTION KEYS. USE OF THIS SOFTWARE IS AT THE
END-USER'S SOLE AND EXCLUSIVE RISK. IN ANY PUBLIC-KEY INFRASTRUCTURE
("PKI") SYSTEM, AN END-USER'S LEGAL RELATIONSHIP WITH THE END-USER'S
CERTIFICATION AUTHORITY DOES NOT INCLUDE OR ENCOMPASS ANY LEGAL
RELATIONSHIP WITH THE AUTHOR, AND IS GOVERNED SOLELY AND EXCLUSIVELY BY
THE CERTIFICATION AUTHORITY'S CERTIFICATION PRACTICE STATEMENT AND
CERTIFICATION AGREEMENTS. AUTHOR ASSUMES NO RESPONSIBILITY FOR THE
ACTIONS OR OMISSIONS OF ANY END-USER OR ANY CERTIFICATION AUTHORITY.
19. Saving Clause. If any portion of this License Agreement is held
invalid or unenforceable under any particular circumstance, the balance
of the License Agreement is intended to apply and the License Agreement
as a whole is intended to apply in other circumstances.
END OF TERMS AND CONDITIONS