a proposed change to the OSD

David Johnson david at usermode.org
Sun Oct 27 00:16:49 UTC 2002

On Saturday 26 October 2002 04:14 pm, James E. Harrell, Jr. wrote:
> Wow- this is quite a militant reaction! I guess maybe I am in the wrong
> place... and it's curious to me why there is so much anger towards the
> commercial entity. To the others in this group- is this representative of
> your Open Source community at large? Should I crawl back under my rock?

I recently had surgery. The militancy comes from the fact that my Vicodin ran 
out yesterday, and I am now running on Tylenol.

I have no hostility towards commercial software. None at all. But there are 
some practices which I feel are unethical that are becoming distressingly 
common in the commercial software industry. Click-wrap (or more precisely, 
after-the-fact click-wrap) is one of them.

Just a couple of days ago on a support list for a proprietary commercial 
software product, it was stated by the vendor that the Right of First Sale 
does not apply, and people who aquire the software at yard sales have no 
legal right to use it. I am doing my best in my tiny little way to keep this 
sort of attitude out of the Open Source landscape.

> >B) Commercial entities that can not stomache this have no place in
> >the Open Source community.
> Are you implying that we are not "worthy" of allowing others to read and
> use our source? Here I am, trying to figure out how to give back. And, in
> essence, you're saying you're not interested becuase I have to actually
> pay my employees to write software? I joined this mailing list so I could
> understand how to build my company in a manner that bridges the gap between
> the commercial world and the free world. So far, I'm not encouraged.

You completely misunderstand me. Then again, perhaps I misunderstood you. I 
had assumed that your use of the term "click-wrap" referred to a license 
presented to the user *after* the software was aquired. If you cannot 
understand my disagreement with this kind of licensing, just imagine that 
this practice was common in the automobile industry. Imagine you have 
purchased a new car, received a bill of sale, etc., then noticed on the 
steering wheel a piece of paper that said you had to agree to an additional 
contract before you could drive the car.

I do NOT have a problem with click-wrap licenses that are presented to the 
user BEFORE the software is obtained. Okay, I may have problems with some 
actual licenses, but not with the concept.

> >Even though it still won't be Open Source software, at least the
> >employees of the company will be able to sleep well at night.
> The employees of my company sleep well at night when they know that their
> next paycheck will clear. Is that so wrong?

I have no problem with your company meeting payroll. I have a big problem if 
your company lies to meet payroll. I have no idea if your company does this 
or not, but a great many do. Here is how they lie: They package, market and 
present the software as a salable product, to the point that _sales_receipts_ 
are obtained by the consumer, yet if it is to their advantage they will claim 
that the software was not actually sold, only a license to use it in certain 

If you do not intend to actually sell copies of the software, then do not 
pretend to do so. Instead be explicit that you are either leasing the 
software, or selling an opportunity to license the use of the software.

> >It still wouldn't be open source. The idea of open source is much
> >more than the capitalization of words. There's an idea behind it that
> >is much more important than mere clauses in a definition.
> And this is a point I'm struggling with- how is it that you can claim
> ownership of the term "Open Source", how it is defined, how it is used
> and applied, or even the idea behind it? Philosophically- I see little
> difference between this and the "ownership" and regulation of softare
> that this group appears to fight so hard to keep "Open". As long as it's
> the definition of the word OPEN that YOU claim, and no one else can
> modify? Sounds pretty closed if you ask me!

The Open Source Definition attempts to define the qualities of a certain class 
of software. The Free Software definition attempts the same thing. Neither 
attempt is 100% accurate, but the users of the terms Open Source and Free 
Software still have a very clear picture in their mind as to what is meant. 
Although the term "open source", as applied to software, is still very new, 
it has been used almost exclusively to refer to this particular class of 

There is no trademark on the term "purple spotted", but if I use that term to 
refer to a red striped ball, people will think I'm nuts. Likewise, if you use 
the term "open source" to refer to software that does not grant the user the 
right to freely use, copy, modify and distribute it, people will think you're 

David Johnson
pgp public key on website
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