Three new proposed OSD terms

Rod Dixon, J.D., LL.M. roddixon at
Thu Mar 3 20:06:35 UTC 2005

Perhaps, too often, people identify "license proliferation" as a serious 
problem without explaining why or, more important, why rejection of 
duplicate licenses is the best means to address proliferation.

I think Joel's understandable concern about the potential restraint on trade 
and, perhaps, more likely, concerns regarding an abuse of trademark 
certification could be overlooked factors by those calling for the rejection 
of licenses based only on proliferation grounds.

Although  it certainly makes sense to  strongly suggest that license 
submitters consider an approved license template before requesting approval 
of an entirely newly drafted license (especially one that is essentially a 
copy of a  preexisting approved template), it is not entirely clear whether 
the approved list of licenses by OSI only contains templates or how someone 
may distinguish templates from copyrighted licenses. Quite naturally, one 
might say that software licenses are copyright protected, but this default 
legal rule says a lot less than many think it does.  At best, if OSI doesn't 
obtain copyright from submitters, then the risk of litigation -even a very 
low risk, is shifted onto open source license drafters. Is this fair, if 
"duplicate" licenses are rejected? At worst, the claim of copyright in 
software licenses kitset, leads to license proliferation. Consequently, I am 
doubtful that the proposal to reject duplicate licenses- whatever that may 
be-is worth its costs and hidden problems. I still think Brian's suggestion 
about creating a gold standard of license templates is a very good 


----- Original Message ----- 
From: "Joel West" <svosrp at>
To: <license-discuss at>
Sent: Wednesday, March 02, 2005 11:56 PM
Subject: Re: Three new proposed OSD terms

> With regards to license proliferation, there are only so many way to 
> rewrite the MIT license. I think it makes sense for OSI to reject new 
> variants unless someone comes up with a better template than we have, to 
> solve the problem that Chuck identifies.
> On 5:27 PM -0500 3/2/05, Chuck Swiger doth scribe:
>>For example, the X.Net license is pretty much the MIT license plus the 
>>clause:  "This agreement shall be governed in all respects by the laws of 
>>the State of California and by the laws of the United States of America." 
>>Likewise, the Intel Open Source License is pretty much identical to the 
>>old 3-clause BSD license plus the US export restrictions clause.
> However,
> a) there are at least two flavors of viral license: module changes and all 
> combined works (LGPL/MPL vs. GPL)
> b) for viral licenses, there are some variations on derivative work and 
> redistribution definition (both in terms of precision and the intent).
> That alone suggest we will have a few more that are necessary.
> More seriously, it's unrealistic to expect the patent issue to settle down 
> any time soon. There are questions of which patents are in play (the 
> plastic clip example cited by Matthew Garrett or just those in this 
> product), the sort of revocation terms, etc. And frankly -- even more than 
> the GPL -- no one knows what would be upheld in court. There aren't many 
> companies making $1 billion/year in patent royalties like IBM, but few IT 
> companies are going to turn the future of their entire IP portfolio over 
> to the OSI board.
> So there will be a variety of needs and views on patents. Just because 
> Prof. Moglen comes up with something doesn't mean it will suit anyone's 
> needs or worldview except Richard Stallman's.  Heck, even HP and IBM can't 
> agree on a license.
> Finally, OSI has a legal concern. An organization that says "we approved 
> our members' stuff but now we're pulling up the drawbridge" could run 
> afoul of anti-trust laws for restraint of trade.
> So some growth in the number of licenses is inevitable. Publishing 
> reliable popularity measures (SourceForge being a bad example) could steer 
> people to important licenses, and eventually the presentation of the 
> licenses could be organized into major, secondary, and specialty licenses.
> Joel

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