compatibility and the OSD

Lawrence Rosen lrosen at
Sun Sep 26 05:28:09 UTC 2004

> Am I right in my reasoning here? If so, how could Sun have designed a
> license to
> prevent this?

Yes, you're right. But that's how open source works. You have to permit
forking although you can condition it on reciprocal conditions. It makes no
sense in open source to ask "how can I prevent forking?" 

I'm not suggesting that companies have an obligation to release their
software under an open source license. In the case of Java, Sun has thus far
refused to do so, and that is their right. When and if they're ready to
conform to open source principles, they know well how to design an
appropriate license, and that open source license won't prevent any other
company, including Microsoft, from doing what you described.


Lawrence Rosen 
Rosenlaw & Einschlag, technology law offices (
3001 King Ranch Road, Ukiah, CA 95482 
707-485-1242 * fax: 707-485-1243 
email: lrosen at 

> -----Original Message-----
> From: Kevin Bedell [mailto:kevin at]
> Sent: Saturday, September 25, 2004 8:49 PM
> To: license-discuss at; lrosen at
> Subject: RE: compatibility and the OSD
> Quoting Lawrence Rosen <lrosen at>:
> > What's wrong with the Sun Industry Standards Source License (SISSL) for
> this
> > purpose? It is already approved by OSI as an open source license.
> >
> > I note that JAVA is not made available by Sun under the SISSL.
> >
> >From my reading of the SISSL (and of course, IANAL), it looks as if it
> approves
> publishing non-compatible derivative works as long as (from sec 3.1):
> "You agree to publish either (i) any deviation from the Standards protocol
> resulting from implementation of Your Modifications and a reference
> implementation of Your Modifications or (ii) Your Modifications in Source
> Code
> form, and to make any such deviation and reference implementation or
> Modifications available to all third parties under the same terms as this
> license on a royalty free basis within thirty (30) days of Your first
> customer
> shipment of Your Modifications."
> In the case of publishing Java under the SISSL, for example, it seems to
> me that
> this would have allowed Microsoft to publish an incompatible version of
> Java as
> long as it also published information on how its implementation deviated
> along
> with a reverence implementation (which it did in the form of the MSJVM).
> As you probably recall, a few years ago Microsoft (in its MSJVM) published
> an
> incompatible version of Java that resulted in a major lawsuit between it
> and
> Sun. The SISSL seems as if it would have allowed Microsoft that right (at
> no
> cost) as long as it also published details on how their implementation
> differed
> along with reference implementation.
> I've excerpted this line from a Microsoft Appeals Brief:
> "As presented at last week's preliminary injunction hearing, Sun's claim
> that
> Microsoft engaged in anticompetitive conduct directed at Sun's Java
> technology
> was based largely on the allegation that Microsoft in 1997 developed and
> distributed a Java virtual machine for use with Windows (the "MSJVM") that
> was
> incompatible in certain respects with Sun's Java speci-fiations"
> In this case, the ability to publish derivative works resulted in MS
> including
> an incompatible version of Java in every version of Microsoft Windows.
> Am I right in my reasoning here? If so, how could Sun have designed a
> license to
> prevent this?
> -kevin
> Kevin Bedell
> Black Duck Software
> "Imagination is more important than knowledge."
>  - Albert Einstein

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