[License-discuss] License Stewards

[Lawrence Rosen]

A recent thread on the legal-discuss@ list at Apache asked whether someone
could take the Apache License 2.0 and revise it for their own purposes.
After a side trip I took into the esoteric question about whether a
copyright license could itself be copyrighted, I bring the discussion to
this license-discuss@ list at OSI along with a bit of history. (I'm copying
the legal-discuss at apache list only for closing the circle.)

 

In the olden days, open source licenses usually contained a copyright
statement and the identification of a "license steward". This person or
organization (e.g., RMS/FSF for the GPL licenses; IBM for the CPL; and
Mitchell Baker at what was then the Mozilla Project for the MPL) reputedly
had exclusive control over future license versions. Indeed, Mitchell took
offense at that time because, without her permission, I had revised the MPL
license into a version I thought was easier to read and understand (the
Jabber license, since deprecated). 

 

Whether or not the license steward role was legally significant, it
certainly raised control issues in the community and created animosity over
license language purity even where personal offense was not intended. Even
though the goal was to change the license for some presumably good legal
effect, some people still took offense when their "own" words were changed.

 

When I released the AFL/OSL licenses in early drafts, I omitted any
declaration of license steward but I asserted with a copyright notice that I
was the author of those licenses. Several people (including, I remember,
Mitchell Baker) complained that I was claiming control over a license that
people might want to enhance or change. Nobody trusted that I personally (or
my heirs) would forever have the good of the community at heart. 

 

I agreed with them. That was my incentive to write section 16 of those
licenses, which declared authorship but disclaimed control over changes.
This section 16 also carefully prohibited what was then characterized as
"relicensing" of existing works; declared that the name of the license was
exclusive; and reminded the world that only OSI could bless a revised
license as "open source".

 

Here's what section 16 of the OSL says:

 

16) Modification of This License. This License is Copyright C 2005 Lawrence
Rosen. Permission is granted to copy, distribute, or communicate this
License without modification. Nothing in this License permits You to modify
this License as applied to the Original Work or to Derivative Works.
However, You may modify the text of this License and copy, distribute or
communicate your modified version (the "Modified License") and apply it to
other original works of authorship subject to the following conditions: (i)
You may not indicate in any way that your Modified License is the "Open
Software License" or "OSL" and you may not use those names in the name of
your Modified License; (ii) You must replace the notice specified in the
first paragraph above with the notice "Licensed under <insert your license
name here>" or with a notice of your own that is not confusingly similar to
the notice in this License; and (iii) You may not claim that your original
works are open source software unless your Modified License has been
approved by Open Source Initiative (OSI) and You comply with its license
review and certification process.

 

Most licenses nowadays omit declarations of license stewardship and don't
even mention the ownership of future derivative versions. For example - and
this was the gist of the question on the Apache legal-discuss@ list - the
Apache License 2.0 says nothing about the right to create derivative
versions of the license. 

 

In this ambiguous situation, what is the default rule for derivative works
of open source licenses? My assertion is that all open source licenses may
freely be copied or modified into different versions; permission from a
license steward is never necessary to do that because these are functional
legal documents for which copyright protection is inappropriate. (In an
email at Apache, I characterized my copyright notice on my own licenses as
"chutzpah".) Without OSI approval, however, nobody responsible will call the
modified license an "open source license". 

 

Do you agree?

 

/Larry

 

Lawrence Rosen

Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)

3001 King Ranch Rd., Ukiah, CA 95482

Office: 707-485-1242

 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/attachments/20121003/0d170a93/attachment.html>