Silly question: are usage restrictions covered by the OSD?

[Brian Behlendorf]

On Thu, 16 Oct 2003, Chris F Clark wrote:
> 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".

I believe that's really stretching the term "field of endeavor" beyond the
original intent: to prevent terms that would prevent use of the software
"in a business, or from being used for genetic research", with other
examples I've seen tossed around being:  to police in South Africa, to
Republican politicians, to oil barons, etc.  One could probably attempt to
define a license term that conflicts with any of the other OSD terms and
attempt to call it a "field of endeavor", creating a loophole.  So, it's
pretty important to know what we mean about this term.

Searching Google, I've found "field of endeavor" used in other legal
documents to basically mean career, vocation, scientific pursuit, and
sometimes hobby - though usually more broad categories of
careers/pursuits, like geology, or aerospace engineering.  People seem to
generally refer to being only in one "field of endeavor" at a time, unless
someone has quite divergent talents and interests, such as simultaneously
being a geologist and a film historian.

> 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.

OK, this is an interesting theory, but it still rests on the assumption
that "creating non-free software" is a "field of endeavor", which I'd
dispute.

> 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.

Interesting twist.  For practical reasons I'd argue that a license clause
that is still triggered on distribution, but applies to all work, is more
likely to make sense than a license that is triggered upon the act of
creation - after all, when is that creative act, is it as soon as you
create a tarball, or is it once you've edited the file?  Are you going to
require public CVS trees for any derivative work?

Brian


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