BSD-like licenses and the OSI approval process

[Philippe Verdy]

Chris Travers [mailto:chris.travers at gmail.com] wrote:
> On 10/16/07, Matthew Flaschen <matthew.flaschen at gatech.edu> wrote:
> > Chris Travers wrote:
> > >  Basically "Open Source" has seen widespread generic use which began
> > > before the founding of the OSI.
> >
> > You keep saying this without elaboration.  Some evidence would be nice,
> > since Rick has told you this is false (and has been rehashed here
> > repeatedly).
> 
> I would start with:
> http://www.opensource.org/history
> 
> Eric Raymond, Michael Tiemann and others started promoting the term in
> 1998 as an alternative to the term "Free Software."  For the next
> three years, the term grew in use.  Only in 2001 was the OSI founded,
> three years later.  In the mean time, the term "Open Source" was being
> used commercially in a generic way to indicate software whose source
> was freely available.

Not really: the commercial users did not want to use the terms "free
software" because it was too much linked to the definition given by the FSF,
and did not want to use the term "freeware" as well because it did not
indicate that the software source was available, but just that this software
was distributed in its binary form without needing to pay any fee (but not
necessarily free to use), and not necessarily from any distributor.

There was a need to speak about only the fact that the source was available
to anyone asking for it (but this availability was not without conditions,
and they were not satisfied by the reciprocal and free distribution rules
required by the FSF licences: they did not want that anyone becomes a
distributor, they wanted to control the distribution of this source, by
forcing users asking for the sources to register with them and sign some
contract). That's where "open source" developed, initially really for
commercial reasons, and those OSI open source licences were not concerned
(the BSD-like licences already existed before that).

It's just that OSI has attempted to define its own, more restricted
definition of "open source" to limit the use of the terms by commercial
organizations, and making them more compatible with the "free software"
licences that were starting to be widespread. OSI has attempted to approve
some non-FSF licences, that did not need the GPL-like reciprocal requirement
so that more "liberal" terms could be accepted as a commons ground, provided
that the set of licences between the "BSD-like" and "GPL-like" licences form
a set of mutually *compatible* licences (compatibility meaning here that
reusing any software in this set was forming a new packaged covered by the
most permissive rights, and the most restrictive obligations of each of the
component licences, in a way that remains usable).

But I don't see any need for even getting OSI compliance for any licence. In
my opinion, any licence can be written with terms that *assert* that they
*are* compatible with some already approved by OSI. With such licencing
terms, the users have the choice of following the terms of the licence
itself, or those from the other referenced licences. The licence itself will
just assert that with a contractual force, and may specify its own licence
termination terms (which may even be very restrictive) without impacting the
other termination terms of any of the other licences referenced.

Let's take an example: the French "CeCILL" licence is compatible with the
GPL *ONLY* because it *asserts* that compatibility within its own terms.
This is enough to make it a free licence, independently of the terms
specific to the CeCILL licence that makes it fully compliant for the French
law by adding rights, obligations and definitions that are immediately
enforceable under French law without having to "test" the GPL against a
French court. So if auser still does not like the French legal obligations,
he can still use discard the CeCILL licence and legally replace it with the
GPL (however the legal French obligations will remain applicable to users
residing in France, not because of the licence itself, that user has
terminated, but only because of law applicable to these users).

So licences can still continue to proliferate, to add additional rights or
restrictions: this is not a problem for us, as long as they also provide
alternative licences that we already know and approve as being
"free"(GPL-compatible) or "open source" (BSDL-compatible).

So let's just propose to licence writers to include terms in their licence,
asserting that their licence is compatible to GPL, and/or, BSDL and/or MPL
and we are done. Their licence is immediately compatible with US, if this
compatibility assertion fixes NO CONDITION for that compatibility (the
licence may even force the user to choose only ONE of the referenced
licence, without any right to mix the rights from multiple referenced
licences, this will work for our need to have a commons ground for reusable
softwares with sources).

So if the fact that they use "open source" terms for describing the licence
does not matter. We are ONLY interested in the compatibility of the licence
with our set of approved licences. And for me this is just enough, however
IANAL...