Are implicit dual-licensing agreements inherently anti-open?

[Alex Bligh]

Brian,

--On 16 July 2005 09:36 -0700 Brian C <brianwc at ocf.berkeley.edu> wrote:

> So perhaps the OVPL presents a question to OSI: Is a license that grants
> greater rights to an initial developer than it grants to other licensees
> consistent with OSI's principles, in particular, does it constitute
> "discrimination against persons or groups"?

I think I'd slightly reword the question: Is a license that grants greater
rights to an initial developer in respect of code contributed by others
than it grants to other contributors consistent with OSI's principles, in
particular, does it constitute "discrimination against persons or groups"?

But yes, that's the question. Note that existing approved
licenses do this in both in theory, and in practice given the way they
are used. I picked up a couple of MPL points (one of which Andrew doesn't
agree with, but...), and the QPL is an obvious example. Equally, if in
practice the license is only used with copyright assignment/license back
(albeit in a separate document), I am not sure there is an intellectual
honest distinction between the two forms.

> I suppose one argument against allowing it is that it seems motivated by
> recognition of prior contributions of time and money to develop the
> initial version, but over time, a subsequent developer may have
> contributed far more time and money such that the end product isn't even
> recognizable as the original, but nonetheless the ID would still be
> granted greater rights. This seems to break the meritocratic ideal that
> supported the distinction to begin with.

I think it goes a little deeper than that, simply because the differential
in rights should hardly come as a surprise to the contributor. We are
not advocating use of the OVPL for new projects. Therefore, when the
contributor comes to look at an OVPL'd project for the first time, they
know by contributing, they are swapping benefit now (a ready-to-go
code base), for disbenefit later (lesser rights than the ID). It's up
to them to chose whether or not they want to contribute.

Is this particularly different from a project with a large existing
tree, under (say) GPL, where the contributor knows that in practice,
to get a contribution accepted into the tree, they are going to have
to do a copyright assignment (here they actually LOSE rights, rather
than grant additional ones to the ID)?

> Another argument would be that open source doesn't care about merit
> among licensees; we're not worried about "freeriders". On the contrary,
> we flourish because of them. So, any license that tries to distinguish
> among people based on the size or worth of their contribution to the
> project is simply misguided. (Again, I'm not advocating. Just
> speculating.)

Some of this comes down to whether you see the "bazaar" idea operating
at a code level only, or whether you see it operating between competing
mechanisms of project management, and licensing. At the risk of heresy,
I am going to suggest that there are *advantages* in license proliferation
to an extent - i.e. competition between different models (the problem
proliferation brings is incompatibility preventing reusability, but
as explained in the OVPL FAQ, the OVPL and other license-back licenses
make this far less of a problem as by a single act of dual-licensing,
even AFTER substantial contributions from others, license compatibility
becomes a non-issue).

I am not sure I quite follow the "don't care about free-riders" point.
Sure that applies to BSD. But reciprocal licenses such as the GPL
care a lot about free-riders. You CANNOT free-ride, in simple terms use the
code in your own modified and distributed project without making your
own modifications available.

Remember also we are aiming the OVPL at specific situations - software
developed in a proprietary environment. The alternative is (in many
cases) that the code remains proprietary.

Alex