Open Source Licenses and Embrace-Extend-Extinguish

Chris DiBona cdibona at
Thu Feb 14 00:34:42 UTC 2008

Actually, protocols specifically are not copyrightable. thier
specifications docs can be, as can software that exercises a protocol.
The reason that dvds (and not cd) reading software is controversial is
because the dmca has a special provision when a program circumvents
encryption, no matter how trivial, to allow for the transfer of
copyright works, then that program can come under certain penalties.

Think of the companies that would not exist if it were not for the
reverse engineering of wire line protocols. Dell, Phoenix/ami, emc,
etc. etc...

If you want to slap a trivial layer of encryption over your protocol
to 'protect' it from people like me, then this may not be the best
place to get advice.


On Thu, Feb 14, 2008 at 1:10 PM,  <msibley at> wrote:
> Thanks Everyone!
> I looked at the SISSL, and I like it. Suprised it isn't more popular in
> fact.
> Micheal, you make a lot of great points. I have to consider the differences
> between practices and doctrine here. While technically my proposed license
> concept could get you in trouble for beta-testing and bugs, in practice I
> can't really see this happening. The difference between proprieterization
> and a bug at a network protocol level can be expressed in terms of
> marketshare for a given distro. Big market =  propreterizing, Small market =
> bug. And for the gray area, fair warning aught to do the trick.
> Regarding protocols being copyrightable, I'm pretty sure they can be. They
> are just formats after all.  Formats like DVD and GIF (or was it jpeg?) are
> legendary for their IP issues. So can a format holder dictate what the
> format is used for?  It doesn't  matter. They only need to dictate that the
> format is consistent. Can damages be caused by inconsistency of format?
> Absolutely. So their probably is some precedents here, I'm just too lazy to
> look them up at the moment :-)
> Thanks again!
> Matthew Sibley
>  -------- Original Message --------
>  Subject: Re: Open Source Licenses and Embrace-Extend-Extinguish
>  From: Michael Poole <mdpoole at>
>  Date: Wed, February 13, 2008 2:42 pm
>  To: license-discuss at
>  msibley at writes:
>  > My point here, is that people who support and develop free software and
> open
>  > standards should have some litigious reciprocity available against
> vendors who
>  > don't play nice. Malicious vendors should be responsible to everybody
> they
>  > screw, not just the original authors.
>  >
>  > So anything out there like that?
>  > Opinions? Comments?
>  Off hand, and based partly on many previous discussions of that
>  essential question, there are at least five major problems:
>  1. If enforceable, this would violate criterion 6 of the Open Source
>  Definition (no discrimination against fields of endeavor).
>  2. It would make it impossible for anyone to release an in-progress
>  version of software that supports the standard, which is a common
>  practice among open source developers.
>  3. It would not stop extend-and-extinguish tactics like those used in
>  some directory services -- where a vendor's server implements
>  proprietary extensions in the proper name space and the vendor's
>  clients effectively require those extensions.
>  4. It leaves anyone who releases buggy software (and that's everyone)
>  at risk of legal action if their bugs alter the program's behavior
>  with respect to the protocol implementation.
>  5. It would probably not be enforceable at all for a redistributable
>  standard: the copyright license on the protocol definition would not
>  impose obligations on those who implement the protocol.
>  Perhaps the most feasible compromise is to publish a test suite for
>  both sides of the protocol and require any software to pass that
>  before it may implement extensions to the protocol. This would
>  resolve #2 and #3, and maybe #4, from the list above. I believe this
>  is roughly the approach that Sun tried with Java. They obviously did
>  not care about #1 at the time, and used non-copyright licenses to
>  address #5.
>  Michael Poole

Open Source Programs Manager, Google Inc.
Google's Open Source program can be found at
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