Article on open-source licenses (and the OSI)

Karsten M. Self kmself at
Tue Oct 30 11:43:33 UTC 2001

on Tue, Oct 30, 2001 at 10:54:54AM +0100, Steve Lhomme (steve.lhomme at wrote:
> A very good sum up of the current (blurry) situation on licenses. (especially 
> for developers getting lost)

Interesting.  I'm not sure I'd call it very good.  For an author with a
JD, some of the legal analysis is sloppy, as are distinctions drawn
among various licenses.  I really should polish the bit I've got along
these lines.

Picking nits as we go along....

Copyright is one of several legal means used to control rights to
software -- patents, trademark, and trade secret are other forms of IP,
contract law, particularly the apparently dead UCITA, is another.  Worth
mentioning.  Copyright itself offers relatively thin protections.

The linguistic nuances of proprietary, commercial, and open source are
handled appropriately.  It's probably worth mentioning that a large
portion of the community lab led as "open source" distinctly prefers
"free software".

The term "larceny" is misused regards copyright, as it refers to a
taking.  The term preferred by Nimmer is misappropriation (most
memorable when he suggests that copyright law is in danger of becoming a
general prohibition of misappropriation).  The copyright owner isn't
deprived of property, the copyright pirate benefits unlawfully from use
of same.

The "everyone benefits" comment concerning BSD/MIT licensing sounds
distinctly as if someone's been chatting with Brett Glass, and is
inaccurate to boot.  It's not clear what Sean means by "enterprise
developers", and the term is as vague as "weaponized anthrax" (are we
referring to spore size or drug resistance, what precautions should be
taken?) that it should be disaggregated to specific instances of types
of use.

The discussion of OSI certification is again unclear and IMO misleading,
perhaps reflection a lack of clarity on the part of the OSI.

    Although the OSI promotes the free redistribution of software with
    access to both source and compiled code, it does not discriminate
    against proprietary ventures. OSI-approved licenses include BSD, GPL
    and X11, and the IPL (IBM Public License), the MPL (Mozilla Public
    License), SCSL (Sun Community Source License) and APSL (Apple Public
    Source License).

...which appears to indicate that OSI Open Source Certified might
include software incorporating, say, BSD licensed code, but no longer
freely distributably in some derivative version.  This doesn't match my
understanding, recent discussion in this list, statements by Russ
Nelson, and specifically sections 1, 2, 3, 5 and 6 of the OSD.  This
paragraph is misleading and wrong.

The discussion of licensing compatibility is welcomed.  I hammer this
issue as much as possible.  I think it's emphasized by the problems the
author has in dealing with even single license issues above.  The Galeon
issue is one I'd only recently become aware of myself (and it's my
favorite browser to boot, I should pay more attention).

The suggestion that the OSI focus on licensing conflicts is interesting,
but, given experience, hopelessly optimistic.  Education on the issues
is one thing, actively tangling in disputes quite another, from an
organizational, operational, and resources standpoint.

The forking discussion is muddled, and confounds issues of license scope
and forking propensity.  I still think two of the best presentations of
this issue are in Bob Young's _Under the Radar_ and Don Rosenberg's
resources at Stromian Technologies.  There's a chart somewhere in his
essays showing propensity to fork across a range of license which I
can't find, but the flowchart diagrams in the forking discussion here
are good for showing the mechanics involved:

Short argument:  forking allows different development paths to be tried.
The GPL (or other copyleft) ensures that there's never a legal
impediment to re-merging a fork downstream, the lesson of BSD Unix was
that the licensing lead to a proliferation of legally incompatible
software (though the upside was a widespread use of the Unix/POSIX
standard).  Most forks are short lived -- they're expensive to maintain,
split the community, and with free software, profit incentives to
maintain a fork are are weak.  Some functional forks propogate, but
these are rare, emacs/xemacs being the notable exception proving the

I find the treatment of the "Is it Legal" section similarly muddled.
Eben Moglen's descriptions of why the GPL is a license, not a contract,
and the fallback to copyright law, would be helpful.

I'm being nitpicky (it's late, I'm tired).  I've seen far worse
articles.  This one's middlin'.  I wouldn't add it to my whitepaper
collection though, it needs some straightening up.


Karsten M. Self <kmself at>
 What part of "Gestalt" don't you understand?             Home of the brave                   Land of the free
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