Article on open-source licenses (and the OSI)

Sean Doherty sdoherty at
Tue Oct 30 16:56:38 UTC 2001


I don't know if my "reply to all" will go to the license list. But, you're free
to post this as a follow up to your comments.

I have been out of the legal world for too long and I agree that my analysis is
sloppy. And, I have some factual errors to correct as well. All in all, I came
up short for the magazine and its readership.

I would like to thank you for taking the time to comment on the article. I
appreciate it and I am working to post corrections. Although I can't correct
sloppy analysis, I can correct the reference to the OSI. I will not rely on the
OSI's lack of clarity on the matter.

Your comments and the other comments I have received on the article will make
future endeavors in this area and in all my areas better. I've learned a lot
from the open source community in the last few days - your interest to dialogue
and educate is appreciated and does not go on deaf ears here or with Network
Computing Magazine in general.

 - sean

Sean Doherty
Technology Editor
Network Computing
sdoherty at

-> -----Original Message-----
-> From: Karsten M. Self [mailto:kmself at]
-> Sent: Tuesday, October 30, 2001 6:44 AM
-> To: license ML
-> Cc: sdoherty at
-> Subject: Re: Article on open-source licenses (and the OSI)
-> 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.
-> Specifically:
->     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
-> rule.
-> 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.
-> Peace.
-> --
-> Karsten M. Self <kmself at>
->  What part of "Gestalt" don't you understand?             Home of the brave
->                   Land of the free
->    Free Dmitry! Boycott Adobe! Repeal the DMCA!
-> Geek for Hire           

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