Cherry-picking license proposals

kmself at kmself at
Mon Jan 22 00:03:53 UTC 2001

on Sun, Jan 21, 2001 at 01:11:53PM -0500, Carter Bullard (carter at wrote:
> Gentle people,
>    What I fail to understand is what is the OSI's purpose
> in certifying Open Source licenses.

I'll take a stab at this, as an outsider and layman (though somewhat
conversant on some issues and processes).

> Is the OSI trying to make a determination that two different legal
> documents are functionally equivalent?


The OSI is attempting to define what is and isn't open source software,
via the OSD (Open Source Definition) and the "OSI Certified Open Source"

This doesn't address the larger dragons of license equivalence,
license compatibility, or code auditing of either single projects or
aggregate works (e.g.:  distributions).  What the independent
significance of being "open source" is is the subject of some dispute.
Ultimately, I suppose, it means that as a user or developer, you're
assured of some minimum rights with the software, though these really
should be considered a minimal standard.

> Is the OSI trying to develop a model license for the Open Source
> Industry?  Then they should be working on certifying only one license?
> If so, what is the license, its current state, and what improvements
> have been added as a result of seeing what real companies put in their
> open source licenses.


You assume this point and carry the assumption through much of your
post.  I'll simply state that assumptions of what is or isn't in the
"OSI standard" open source license are based on the false presupposition
of existence of such a beast.

The drift I've heard is, roughly, "the business model, and supporting
license, space, have not been fully explored".  OSI does appear to
endorse some level of experimentation, though they also discourage
gratuitous differentiation.  How they intend to reconcile these goals,
and whether or not this is a desirable goal, I don't know.

There was a related, but distinct, effort underway 1999-2000 to come up
with a set of common licensing concepts, language, and/or possibly a
license, known as the CLWG (Common Licensing Working Group).  It
consisted of members from (but not representing) a number of firms and
interests in free software / open source, including Sun, IBM, HP, Apple,
Netscape, Red Hat, the Apache Group, CMU, SPI, and others.  It
eventually disbanded largely due to (my read) the following factors:

  - Time.  Resolving licensing issues is a significant task.  It's bad
    enough trying to resolve it for your own organization, let alone for
    two (typical negotiation).  Try doing it for a dozen or more
    interests simultaneously.  A tragedy of the commons emerges
    particularly as members of the group start honing on their own
    particular solutions (either novel or adopting an existing license
    or model), and interest and immediacy of finding a general solution

  - Commitment.  The effort was in part seen as a handholding exercise
    on the part of the open source community for some of the larger
    corporate members.  Institutional inertia being what it is, and
    factors above contributing, there was some frustration in the
    movement or lack on the part of some members.

  - Convergence.  Despite some degree of internal conflict, the final
    nail was really the result of independent external resolution of
    many of the issues we had sought to address.  As of the last meeting
    (O'Reilly Conference, July, 2000), the landscape was clearly
    shifting to focus on what seemed to be three principle licensing

    - GNU GPL/LGPL:  A primary license for HP's EZSpeak (?) project,
      adopted as part of multi-licensing models by Sun, Mozilla, and

    - Mozilla Public License:  With very minor wording changes, adopted
      by Sun as the SISSL.

    - BSD/MIT style:  Apple's Darwin code is derived from BSD sources,
      and Apple appears more comfortable with the BSD licensing model
      than GPL.  Apple's own licensing has changed within the past
      month, I still need to review the changes.

    A fourth general class of license remains what I refer to as the
    corporate licenses.  Terms vary, some widely.  The more significant
    aspects tend to deal with liability and skeletons in the closet --
    particular fears or concerns of a given company.  However, I'm
    noting both a diminished interest in the part of large players in
    promoting distinct licenses (though others continue to propose


> My basic concern is Open Source project patent infringement.  If
> patented implementations find their way into my open source project,
> can the holder of the patents shut me down?  Are Contributors liable?
> If a court puts an injunction against the distribution of code that
> infringes on a patent, is the Open Source project liable for
> recovering the old versions?

Good questions, all.  See the MozPL for some of the better language, and
the IBM PL for what is an interesting take from a large patent-holding
company.  You might also look up Raph Levien's licensing of 16 patents
held by him on various graphics-related technologies.  For more info:


Karsten M. Self <kmself at>
 What part of "Gestalt" don't you understand?       There is no K5 cabal
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