Silly question: are usage restrictions covered by the OSD?

[Chris F Clark]

On Wed, 15 Oct 2003, Arnoud Engelfriet wrote:
> This may be a silly question as I'm probably overlooking something,
> but as far as I can tell the Open Source Definition does not
> forbid any general restrictions on "usage" of software. The closest
> thing is "No Discrimination Against Fields of Endeavor", but
> that only forbids exclusion of _some types_ of usage, not exclusions
> on usage by everyone.
>
> Would something like "You may only use this editor if you release
> all works you create with it as open source software" fail under
> OSD #6, and if not, why would it fail the OSD?

I would argue that your clause (you may only use this editor if ...)
fails OSD #6, because it prohibits the field of endeavor "creating
non-open source software".

The question that this does not address is how your restriction
differs from the restriction in the GPL, (you may only create a
derived work from this software if ...).  That would also seem to
prohibit the same field of endevour. However, the chief distinction is
that concept of derived work.  There is no field of endeavor of
creating derived works from software that you are not the author of
unless the author grants you that right.  (This is one of the authors
reserved rights under most theories of IP.)  That is, without
permission to create a derived work, one cannot create derived works
at all, and thus it cannot be a field of endeavor.

However, in distinction, one can create non-open source software using
ones own IP.  Thus, that can be a field of endeavor.  Moreover, one
can use a different editor to create such software.  Thus, a usage
restriction on a particular editor, would prohibit its use in that
field of endeavor (which would otherwise be legal and thus a valid
field of endeavor).  And to my mind that contrvenes OSD #6.

However, IANAL.  Moreover, there is no court that has ever ruled on
this particular point to say whether the argument is valid or not.

Still, I am interested in other peoples impressions of this argument.
The reason being, I am considering drafting a license which makes
approximately that distinction.  It is a license that is viral like
the GPL except that it defines its point of requiring "open sourcing"
of the resulting works the point of derivation rather than the point
of redistribution. That is, one must release an open source copy of the
derived work when one creates such a derived work, not only when one
distributes such a derived work.  (There are many details to work out,
which is why I have not submitted it for review.)

I am hoping that such a restriction will not be considered
contravening the OSD, and that the license will become approved.

-Chris

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