OVPL and open ownership

[Alex Bligh]

Chris,

--On 26 July 2005 22:44 +0200 Chris Zumbrunn <chris at czv.com> wrote:

> On Jul 26, 2005, at 6:21 PM, Alex Bligh wrote:
>
>> --On 26 July 2005 17:44 +0200 Chris Zumbrunn <chris at czv.com> wrote:
>>
>>> If the terms would be the same then either both the initial
>>> contributor
>>> and all other contributors COULD NOT use others contributions in
>>> proprietary versions or both the initial contributor and all other
>>> contributors COULD use others contributions, including the initial
>>> contribution, in proprietary versions.
>>
>> I don't think that is correct. If it was, this would effectively
>> mandate
>> that all OSD approved licenses prohibited dual licensing by the ID
>> and by contributors.
>
> Why? I do not see a problem as long as there is no asymmetry inside the
> open source license. Dual-licensing works around this outside the scope
> of the OSI approved licenses.

OSD 3 does not talk about asymmetry. It talks about the contributions
being made available on the same terms as the initial contribution.
They are (under the GPL, MPL, CDDL, QPL, OVPL as originally
drafted, and - I believe - OVPL as proposed).

>> As I understand OSD #3 is saying that the contributions MUST be
>> available
>> under "the same terms as the license of the original software"
>> (that's the OVPL with the specified ID). It doesn't say they mustn't be
>> available on other terms as well (for instance more favourable terms).
>> Clearly, anything licensed on BSD terms is going to be available under
>> any OSI approved license.
>
> No, no, no. If your reading would be correct, any BSD-ish licensed code
> would be total copy-left far beyond the GPL. Surely you know that you are
> not required to distribute a BSD-derivative work under the BSD license
> :-)

Of course I recognize that - However what I wrote agrees with that, rather
than contradicts it. I am saying OSD #3 does not prohibit mandating
contributors contributor licensors making contributions available on more
favourable (to the licensee)'s terms than the ID's license, provided by
doing so they are as a matter of fact also available available to licensees
under the ID's license. If contributor's licenses to licensees were
BSD-esque, then as a matter of fact they would be available to the
licensee under OVPL terms, because either they or any third party
could sublicense them (see below) to the putative licensee under the
OVPL. Alternatively (and without losing anything) the license could
explicitly state they should be available both under the OVPL and
under a BSD-esque license, which (whilst redundant) would make it
crystal clear that modifications would be available under the same
license as the original contribution (clearly they would be available
under other licenses too).

> Generally, you can sublicense your derivative work in any way that
> complies with the license of the original work.

Not really - see Lawrence Rosen's book. Normally in reciprocal
license the grant comes directly from the contributors - it is not
a chain of sublicenses; he argues cogently that it is possible
to read the BSD license (and some other academic licenses) that way.
As a matter of construction, license grants are in general
not sublicensable unless there is something specific in the license
to show they are.

> The way I read OSD #3, it is saying that the contributors must have the
> right to distribute their modifications under the same terms as the
> initial contributor distributed the initial contribution under. Meaning,
> they do not have to grant the initial contributor anything that he did
> not grant them.

Let's go to the text. It says:

: The license must allow modifications and derived works, and must allow
: them to be distributed under the same terms as the license of the
: original software.

So I agree with all you wrote except the sentence starting "Meaning".
The clear meaning is that the "terms of the license must be the same",
not that it is symmetric. It could specify that both agree to genuflect
in front of a graven image of Bill Gates. That would not be a good
thing, but it would not be in breach of OSD #3. "Under the same terms"
means "the license has the same terms".

>> If your point is that the latter is ugly, and it's far harder to
>> see how it fits the OSD (though I think it does), I agree.
>
> No, my point is just that any of these variations do not eliminate the
> asymmetry between the initial contribution and any subsequent
> contributions. I know the asymmetry in the OVPL is intentional.

Correct

>> The MPL and (I think) the CDDL (I haven't looked for others) materially
>> differentiate between the ID and subsequent contributors - see past
>> messages. Granted, not so much as the QPL or the OVPL, but nevertheless
>> they do.
>
> In which way do the MPL or CDDL "materially differentiate" between the ID
> and subsequent contributors? The way I see it they make almost no
> differentiation at all when compared with the OVPL. Which past messages
> are you referring to?

See the message below for examples of how the MPL differentiates between
the ID and other contributors. The QPL is an obvious further example. Note
I have not trawled all of them. Further note that whilst my MPL example
(reading to work like the MPL) is a deliberately extreme interpretation,
even if that interpretation is incorrect, it still gives the ID different
rights. There's more in the rest of the (long) thread but you have the
Message-ID now so I will save list volume.

Alex



From: Alex Bligh <alex at alex.org.uk>
Reply-To: Alex Bligh <alex at alex.org.uk>
To: Alex Bligh <alex at alex.org.uk>,
	"Wilson, Andrew" <andrew.wilson at intel.com>,
	Mark Shewmaker <mark at primefactor.com>
Cc: David Barrett <dbarrett at quinthar.com>,
	license-discuss at opensource.org, Alex Bligh <alex at alex.org.uk>
Subject: RE: Are implicit dual-licensing agreements inherently anti-open?
Message-ID: <C752762872654E7FAD6EDA43@[192.168.100.25]>

Andy,

--On 14 July 2005 18:19 +0100 Alex Bligh <alex at alex.org.uk> wrote:

>> Well, no, it doesn't.  I do not need to conduct a negotiation with
>> IBM to create a version which merges code I originated into a
>> variant of Eclipse.  No-negotiation-required is a hallmark of
>> open source-ness, which your OVPL fails.
>
> I think you do. This is because the question "who is the Initial
> Developer" remains unanswered. I accept that in practice the
> "who is the initial developer" question matters less in (say)
> the CDDL, but it still matters. For instance, if there are two
> separate initial developers, one could restrict the license to
> version 1.0 of the CDDL, and another could not (within the terms
> of the existing CDDL).

I should probably expand on this a bit because it sounds like I am making a
rather pedantic point, which I'm not. Take two products initially developed
by A and B respectively under the MPL v1.1, which actually suffers rather
more than the CDDL.

1. Under 13, the Initial Developer (but not a contributor) has the
   right to designate portions of the Covered Code as Multiple-Licensed.
   Note the Covered Code INCLUDES Modifications contributed by others.
   As the Multiple Licensed code can be made available under ANY license
   (provided is is also made available under the MPL) this in practice
   allows the ID to do a very OVPL-like thing, and run a completely
   proprietary version. First, note that it is incredibly similar to the
   OVPL provision you are objecting to. Second, note that that the
   right is restricted to the Initial Developer - so if you merge code
   bases, which of A or B has this right?

2. Under 3.3, "You" have to include a
	a prominent statement that the Modification is derived, directly or
	indirectly, from Original Code provided by the Initial Developer
	and including the name of the Initial Developer in (a) the Source
	Code,
   Now that would appear to be difficult if you don't know precisely who
   the ID is, because (say) you are a third party merging A and B's
   projects. I would suggest it's actually impossible to comply with.

3. If the source trees are "merged" without negotiation, then
   At what date license grant of A's code become effective? If A is
   now to be considered the ID, it will (per 2.1(c)) be when A originally
   published the code. If B is now considered to be the ID, it will be
   when A first made "Commercial Use" of his code - at the latest that
   could be when he makes it available to B (which we know has happened).

I believe that in practice, your comment about mergeability is ONLY going
to apply to license which accord NO differential rights to the Initial
Developer and the contributor. I would suggest a large proporition of
modern licenses would fail this test. On that subject, I will quote Bruce
Perens who put the matter better than I could hope to:

--On 11 April 2005 08:47 -0700 Bruce Perens <bruce at perens.com> wrote:
> Although the license to the original developer is onerous, It still
> allows you to freely redistribute the work. The relationship is
> assymetrical, but not outside of Open Source. The fields-of-endeavor test
> would be the one you should apply to this provision, it passes that too.
>...
> An additional rights grant is not discriminatory under OSD #5 if the
> parties to whom the rights are NOT granted are still getting sufficient
> rights for it to otherwise be considered an Open Source license.

As a further point, I would add that the OVPL relicensing provisions
make merges EASIER not harder. If you accept the point that under the
CDDL (say) merging is not possible without agreement, it has to be
agreement not only between the IDs, but also between every contributor.
Under the OVPL each ID can relicense the code under ANY license, including
under the OVPL with another as ID (i.e. contribute it).

Alex