PhOSCo - Licencing
Information
We have been asked several times to clarify the licence position, particularly with regard to Academic users, mainly because of various "grey areas". The legal position is set out in the PhOSCo General Licence document, available by clicking here. This page is intended to be a simple overview.
When we say "you" below, we mean "you or your organisation".
Commercial users who wish to obtain a commercial licence for client/server PhOSCo should print off a copy of the Licence document, and follow the instructions there. For PhOSCo Web Server, they should follow the instructions on the Commercial Web Server Licence Page (click here).
Following recent legal decisions within the USA, and the decision of some potential licencees not to take up free academic PhOSCo licences due to the potential of third-party intellectual property claims, we have reluctantly come to the conclusion that we can no longer safely distribute or licence PhOSCo to the United States of America, or any other country or area where "software patents" are legally effective.
We wish to make it absolutely clear that so far as we are concerned, PhOSCo is 100% written by us, with no code other than unprotectable elements such as standard constructs and interface definitions taken from other sources, as with any software. We are not aware of any legitimate third-party claim against any element of PhOSCo.
However, recent events in the USA have shown that it is possible for patents to be granted and to appear that cover wide swathes of functionality that it is impossible for any large-ranging software package like PhOSCo to avoid. We (and others) have hitherto taken the view that these patents are or should be largely unenforcable because of their inherent invalidity, either due to prior art or to the fact of their being obvious to any skilled practitioner in the art (two tests for the validity of patents, normally applied in most patent regimes before the grant of a patent, but apparently untested by the US Patent Office). It now appears that juries are finding such patents applicable, and that large companies who should be expected to vigorously defend against such wide-ranging patents (such as in the recent case of Kodak vs Sun) are spinelessly conceding them. These patents are thus acquiring the precendent of being enforcable under law. The known fact of their existence also places us, in the case of US law, under penalty of tripled punitive damages if we know of their existence and continue any so-called "infringement".
Small companies such as ourselves cannot stand against what is, in effect, a legal protection racket. For us, the lesser evil is not to do business under such a regime.
Accordingly, from 9th October, 2004, PhOSCo is no longer licenceable in the United States of America or any other country or region that employs software patents. We will no longer distribute PhOSCo to such countries. While we cannot stop other persons distributing our software to such places, this is henceforth being done without our permission and contrary to the PhOSCo Licence. It is our position that previous versions of the PhOSCo Licence which allowed such distribution allow it only with the person or organisation doing the distribution being responsible for any third-party claims; and we request and strongly recommend to such licencees that they do not perform such distribution.
As with the Internet it is not easily determinable whether or not someone requesting a download of software or other files is in any particular country or region, we reluctantly have had today to remove the free download facility from this website. In future, anyone requiring PhOSCo software may only obtain it via a PhOSCo subscription or by purchase of a PhOSCo CD-ROM. No future sales or subscriptions will in future be entertained from citizens of countries or regions where software patents obtain.
If you intend to use the program, or code from it, purely for your personal use and enjoyment, not for commercial gain and not in conjunction with your trade and profession (except for purposes of education and training), go ahead.
In that case you do not need to complete a licence application or communicate with us in any way, though we'd love to hear from you. You are still bound by the personal use terms of the PhOSCo licence and must respect our intellectual property rights.
You will not be given access to all PhOSco programs or code which are "restricted materials", these are only available to licenced users and subscribers. You may become an individual subscriber - see the Subscriptions Page (click here).
If you intend to use PhOSCo programs or code as part of your trade or profession but you are an academic or work for any other non-profit organisation, you need an Academic Licence.
You must either become a PhOSCo subscriber (Click here to go to the Subscriptions Page), or complete a copy of the PhOSCo General Licence document and send it to us as a paper copy. Until we have received that document and indicated to you that you are a licenced organisation (we will send you a licence certificate) you are not licenced to use PhOSCo programs or code.
You will only be given access to "restricted materials" once we have received a licence application from you.
You will not have to pay a fee for any activities you perform unless you or your
organisation receive money or "other valuable consideration" (such as shares, promises, patent
rights and so on) in payment for the activity directly or indirectly from a commercial non-profit
organisation. So:
are all "non-profit" and will not attract a fee.
If, however, you perform any clinical trial which is even partly funded by any commercial organisation then that is a "for profit" trial and the standard commercial fee for the trial must be paid.
You are under no obligation to make any payment to us for any of the materials you receive. However, you may choose to support us if you wish by becoming a subscriber organisation - see the Subscriptions Page (click here).
If you are a commercial organisation that runs clinical trials, either as a prime agent or sponsor or on behalf of other organisations, you need a Commercial Licence and must pay a fee for each trial you run; after you have run a number of trials this fee may be waived.
You must complete a copy of the PhOSCo General Licence document and send it to us as a paper copy. Until we have received that document and indicated to you that you are a licenced commercial organisation (we will send you a licence certificate) you are not licenced to run clinical trials with PhOSCo.
You will only be given access to "restricted materials" once we have received a licence application from you.
You can get any third party orgainsation you choose to perform support or other services you choose using the PhOSCo materials you have licenced; they do not themselves have to be licenced PhOSCo users. However, if they are not licenced users, you must take the responsibility of ensuring that they respect the intellectual property of PhOSCo as a whole and the confidentiality of restricted materials, and you will be responsible for any loss arising out of any breach of trust.
If you are an organisation that provides services for a fee to other organisations that run clinical trials that necessitates use of or access to PhOSCo programs or code (this includes but is not limited to such activities as providing software development, maintenance, customisation, hosting services, and so on), you need a Commercial Licence unless your customer is a licenced organisation and you obtain restricted materials from them.
You must complete a copy of the PhOSCo General Licence document and send it to us as a paper copy. Until we have received that document and indicated to you that you are a licenced commercial organisation (we will send you a licence certificate) you are not licenced to use PhOSCo materials, though you may of course offer to perform services on the understanding that you intend to obtain a licence.
You do not need to pay a fee for the use of PhOSCo materials; however, you will not be given access by us to restricted materials unless you choose to subscribe to PhOSCo as described in the General Licence section C. You may not subscribe as an individual, or Base, Premium, or Sponsor non-profit subscriber. Any other commercially licenced PhOSCo user may give you access to restricted materials in their possession but only for the purposes of supporting that specific licenced user.
We will not unreasonably refuse a licence under this heading; we only reserve the right to do so in the case of organisations who we believe have in the past, are presently, or intend in the future, to violate our intellectual property rights.
We will only provide restricted materials on a continuing basis to any licencee so long as they remain a PhOSCo subscriber.
Currently, restricted materials include the communications code, certain documentation, and PhOSCo Web Server. In future, other PhOSCo modules may be provided as restricted materials.
If you are a commercial organisation or user, you will have to obtain a licence from us
if you:
where your use is other than minor and is for profit or in direct support of profit-making activities .
You should contact us (email licence@phosco.com preferred) with an indication of the nature and volume of the use you intend. We will charge a fee for the issuing of a licence.
If your use is minor or the revenue you make per year from this activity can be reasonably assessed at less than £5000 sterling you should become a PhOSCo subscriber (go to the Subscriptions Page (click here)). This will licence you for this situation.
"PhOSCo" and "Pharma Open Source Community" are registered Trade
Marks of Guillemot Design Ltd.
Copyright © 2004 Guillemot Design Ltd.