OSL 3.0 section 6 ["Attribution Rights"]

[Lawrence Rosen]

I want to call your attention to section 6 of the DRAFT OSL 3.0 at
www.rosenlaw.com/DRAFT-OSL3.0.pdf.

This change has nothing to do with the other changes I made in response to
the EC proposal for a license that conforms more closely to their language
and needs. It was made because certain open source companies who contribute
free software have told me they need a way to prevent downstream
distributors from simply making it appear that the new distributors -- and
not the original author -- are the ones responsible for the work. 

This condition regarding attribution is important to some. Consider the
SugarCRM license at
http://www.sugarcrm.com/crm/open-source/public-license.html which imposes
the "Additional Terms" at Exhibit B. (That license has not yet been formally
approved by OSI, by the way.) I tried to generalize and "templatize" the
terms of that SugarCRM license Exhibit B in OSL 3.0 section 6.

Reputations in open source are owned by those who create and distribute
high-quality and innovative software. When another company takes that
software and hides its true authorship (as by removing the original authors'
copyright notices) or distributes that software under another brand name
without acknowledging the source and origin of the original work, that takes
something intangible but valuable from the original authors: Goodwill that
they earned by creating and distributing the original software for free.

Currently in OSL 2.1, section 6 deals with requirements for attribution in
the Source Code of distributed software. The proposed new sentence in OSL
3.0 deals more broadly with copyright, patent and trademark notices in
whatever form the work is distributed. It requires that the original
authors' notices remain visible whenever a new distributor's notices are
displayed. The proposed new sentence reads as follows:

   Unless You obtain a separate license or a waiver of this sentence 
   from the Licensor, (i) You must display Licensor’s copyright and 
   patent notices on copies of the Original Work and Derivative Works 
   that You distribute, in the same places and with the same prominence
   as You display Your own copyright and patent notices, and (ii) You must
   display a statement to the effect that “Your work is a Derivative Work
   of Licensor’s Original Work licensed under the Open Software License
   version 3.0” in copies of Derivative Works that You distribute, in the
   same places and with the same prominence as You display Your own 
   trademarks. 

Strictly speaking, this new sentence does not actually require any author or
distributor to display copyright, patent or trademark notices anywhere in
particular. (Remember, though, that the first two sentences of Section 6
already require certain notices in the Source Code!) But with this new
sentence, if a downstream distributor elects to display its own copyright,
patent and trademark notices on splash screens or "Help About" messages, for
example, it must provide equivalent notices of the original authors as well.


I believe that this is fair because both the original authors and downstream
distributors will then have equal opportunities to build their own brands
and reputations in the marketplace in whatever ways they can, through
services, warranties, added software features, etc. This new sentence
satisfies the definition of reciprocity for an open source license.

This new provision may also offer potential revenue opportunities for some
open source companies to the extent that a separate license can be granted
or this sentence can be waived by any licensor for a fee. The *private
branding* of commodity software through dual licensing may turn out to be as
lucrative a business opportunity for some open source software companies as
is the private branding of foods and other staples. 

Licensors who use OSL 3.0 but who prefer to give their licensees more
freedom regarding notices (as in version 2.1 of the license, or as the
Apache Software Foundation now treats such matters for their software) could
waive this sentence altogether by a prominent notice on their web sites,
perhaps in their License FAQ. A simple statement to that effect by the
Licensor in the Source Code as part of an Attribution Notice is probably
sufficient to waive this third sentence of Section 6 for that particular
code. 

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  *  fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and 
   Intellectual Property Law" (Prentice Hall 2004) 
   [Available also at www.rosenlaw.com/oslbook.htm]