namespace protection compatible with the OSD?

[Rod Dixon, J.D., LL.M.]

> Brian Behlendorf wrote:
> >
> > On Thu, 19 Apr 2001, Rod Dixon, J.D., LL.M. wrote:
> > > I am sorry about joining the discussion late. This sounds interesting.
> > > Brian, do you mind clarifying your question without rehashing
> what has been
> > > discussed? I do not want to bore those who have followed the
> thread, but
> > > what do you mean by "implement" and what is the concern you
> are raising?
> >
> > I was wondering if there was a way, compatible with the Open
> > Source Definition as well as acceptable to others in the community, to
> > create a copyright license for an API specification that helps ensure
> > compatibility of derivative works.
>
> After watching this argument roll around and around, it's tempting to just
> say "no". A "no" answer could be derived from any of the following:
>
>  1) If the API is not copyrightable and enforceable.
>  2) If the proposed copyright-based restrictions are contrary to the OSD.
>  3) If the restrictions undermine its acceptance and usability.
>
> The lawyers can debate #1, and #3 can be left to historians, but it's hard
> to see any way to reconcile #2, except perhaps on the trivial case of what
> one calls the API. Trademarks are a legally sanctioned, generally accepted
> mechanism for clarifying the namespace. But anything more general
> mechanism
> that threatens to prevent unauthorized derivations would
> certainly restrict
> freedom -- regardless of its legal status.
>
> > If the GPL's ethos is "access to source code is paramount",
>
> The key point is not just access to the source code: it is the right to
> modify the source code, to create something new from that, and the right
> to make those modifications available to others. I think the right to
> modify an API is implicit in GPL.

Well-stated. In fact, it seems to me that if it were not an implicit
assumption of the open source movement, we might want to reconsider why not.
On the other hand, if the prevailing practice is to make such use of the API
permissible by explicitly stating so in a license (e.g., the Java API is
licensed by Sun), then OSI may want to consider making the implicit
assumption explicit in the OSD. Sun has an interesting provision in its
license:

"Java Platform Interface. In the event that Licensee creates an
additional API(s) which: (i) extends the functionality of a
Java Environment; and, (ii) is exposed to third party software
developers for the purpose of developing additional software which
invokes such additional API, Licensee must promptly publish broadly an
accurate specification for such API for free use by all developers."

One wonders whether that provision is consistent with the First Amendment.
Even so, it is clear that it is consistent with Sun's view on the
copyrightability of Java APIs. The link to the entire license, which
includes provisions concerning the development kit and a rather odd
provision regarding the Windows platform:
http://java.sun.com/products/jdk/1.2/LICENSE

- Rod