[License-discuss] Query on "delayed open source" licensing

Rob Landley rob at landley.net
Sun Oct 29 15:20:59 UTC 2023

On 10/27/23 13:06, Bradley M. Kuhn wrote:
> FWIW, I can confirm Larry Rosen's suggestion that indeed L. Peter Deutsch and
> Aladdin Ghostscript likely invented the manipulative marketing approach of
> pre-announcing that proprietary software might someday be FOSS and/or making
> semi-binding public statements or licensing terms that backup that marketing
> approach.

Wikipedia[citation needed] says ghostscript first shipped in 1988. This ten year
old version of wikipedia's page on "source code escrow":


Says that "In 1982, mathematician Dwight Olson founded Data Securities
International, the first software escrow company."

Copyright was only extended to cover binaries by the Apple vs Franklin decision
in 1983 and everything before that was open source by default (yes including
from places like IBM, their "Object Code Only" announcement was February 1983
https://www.landley.net/history/mirror/ibm/oco.html in response to Apple vs
Franklin, as was RMS's printer tantrum). Human readable source code could be
copyrighted after the US ratified the Berne convention in ~1977, so in the ~5
years before Apple vs Franklin distributing source code was seen as GREATER
legal protection for programs since that could be copyrighted. The result was
still https://en.wikipedia.org/wiki/Coherent_(operating_system)#Development when
push came to shove but companies with lots of lawyers could still THREATEN...

Before that there was essentially no retail software market. The PDP-8 was the
bestselling machine on earth from 1973 until displaced by the Apple II
(https://homepage.cs.uiowa.edu/~jones/pdp8/faqs/) and in its entire history it
sold a cumulative total of 50k units. The first two years of Apple II sales
totaled 43k units
The first machine to sell 1 million units was the Commodore Vic 20 in 1982. The
apple vs franklin decision happened when it did because before then there WAS no
retail software market, due to a lack of customers owning machines that could
run any program you tried to sell: what little software was for sale was sold
through the hardware manufacturer. People fought over the money as soon as there
was money.

> (At least, in my 30 years in this field, I've never seen an
> example of this that predated the one Larry mentioned.)

If you want to look at pioneering licensing work, and don't feel like slogging
through the "IBM and the seven dwarves" mines in the 1960s, go research the
split between Atari and Activision in 1979 when "hardware vendor develops and
sells software" (340k atari 2600 consoles shipped in 1977) turned into "third
parties sell software for an existing installed base of machines" and the
hardware vendor freaks out. Except the delivery mechanism there was cartridges
which were much harder to copy and modify, and by default had 4k of space
holding hand-coded machine language so the source was assembly at best. The
BIOS/BDOS split the head of Imsai talked Gary Kildall into doing with CP/M was
interesting pioneering work too, that was 1976:

Apple's 1980 IPO was the largest in history at the time and "the computer" was
Time Magazine's 1982 person of the year. I'm pretty sure the money guys didn't
take until 1988 to discover the "I will gladly pay you tuesday for a hamburger
today" approach to source code as ephemeral pie-in-the-sky incentive.

Just like Richard Stallman had a "unique" idea when AT&T's post-Franklin closing
of Unix source led Andrew Tanenbaum to write a replacement for the Lions book
from scratch (which took him 3 years, just like it had taken the Mark Williams
company 3 years to produce Coherent). And clearly when Linus Torvalds wrote a 32
bit kernel on a minix machine using the minix filesystem after taking an OS
design course using Tanenbaum's Minix textbook and posted the results to
comp.os.minix, that happened entirely because of Stallman, at least according to

The problem with "the great man of history" theory is that the people who get
credit and the people who did the work... ask Rosalind Franklin about that.


P.S. The big split between the Apple II and the IBM PC is that IBM sued Compaq
and lost, and Apple sued Franklin and won. Those the IBM PC turned into a
thriving white box compatible clone industry, and Apple almost died before they
begged Steve Jobs to come back and reinvent it as a consumer electronics company
selling iPods attached to revenue from iTunes. There's very interesting stories
to tell in this space. "When rabbits were introduced to the australian outback
and suddenly spread everywhere, who was the REAL inventor of rabbit stew
deserving unique and exclusive credit" is not one of them.

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