Are implicit dual-licensing agreements inherently anti-open?

[Chris Zumbrunn]

On Jul 19, 2005, at 11:35 AM, Alex Bligh wrote:

> --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.

There is a slight difference between accepting that an open source 
license "reserves" certain rights of the ID and that it "grants" the ID 
special privileges. An open source license that grants special 
privileges to some and not to others is discriminatory, even if the 
recipient of that grant is the ID.

The current Open Source Definition does not explicitly prohibit what 
the OVPL is doing. Normally, it would be nonsense to say that a license 
could grant something to the copyright holder, but through the 
license-back mechanism in the current OVPL draft, the OVPL manages to 
do so.  I think the OVPL is not in compliance with the criteria 5 of 
the Open Source Definition, because it literally discriminates against 
any person or group of persons.

Both the RPL and the Copyback license do not have this problem because 
they do not require contributors to make a special grant back to the 
ID. However, the QPL does set a precedent for an asynchronous 
license-back favoring the ID. The question now is if this practice 
should be repeated with the approval of the OVPL. Note that the QPL is 
not a template license, so in a sense Trolltech is currently the only 
ID that has an OSI approved asynchronous license-back. Either the 
approval of the QPL was a mistake or it is the precedence for approval 
of the OVPL. Which is it?

Chris


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