[License-discuss] Open source software licenses and the OSD

Fri Nov 9 18:21:41 UTC 2018

Lawrence Rosen wrote:

<snip>

Instead, as long as the five basic freedoms on the cover of my book are protected, software will be open source enough for me. That is why I have proposed this common definition:

“Open source software” means software actually distributed to the public under software licenses that provide that every licensee is free to make copies of the software or derivative works thereof, to distribute them without payment of royalties or other consideration, and to access and use the complete source code of the software.

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Hi Larry, thank you for sending out a summary of the history of the OSI definition along with this concatenated statement.

I’m not sure if your intention is to start a conversation about a new, more concise definition, or simply to state your perspective?

I believe you’re referring to your Open Source Licensing book, which lists the following:

  *   Use open source software for any purpose
  *   Make and distribute copies
  *   Create and distribute derivative works
  *   Access and use the source code
  *   Combine open source and other software

I’m clearly seeing the first four in your proposed definition, and it seems reasonable to infer the fifth between making derivative works and access/use the source code.

However, I could see some community confusion regarding a new phrase you’re adding that isn’t reflected in the five basic freedoms from your book cover: “without payment of royalties or other consideration.”

First, while it’s not required, GPLv2 section 1 does allow a distributor to “…charge a fee for the physical act of transferring a copy…”  I recognize there’s a difference between paying to receive the software and paying a royalty when you distribute the software, but I have worked with plenty of Engineers who would not understand that distinction and might be confused whether GPLv2 fits the new definition.

Second, it’s clear to me that you’re only referring to Copyrights, based on your reference to the relevant Copyright rights (copy, create derivative works, distribute).  But some people might be confused and think you’re referring to royalties for any type of IP, including Patents or Trademarks.

With copyright, independent creation is separately protectable.  So every author can contribute their code subject to a qualifying license, and the project can accurately make a statement that the full project is unencumbered by any copyright royalties.

But with patents only the first inventor gets patent protection, so there is always a possibility that someone who has never contributed to the project has a valid patent covering some of the functionality (presuming patents cover software at all, which is a separate discussion).

And with trademarks, it would be easy for an unaware contributor to include a picture of Mickey Mouse as sample media, or an audio file of the Microsoft Windows power-on sound, or even a trademarked phrase such as “Let’s get ready to rumble!” that a maintainer might not recognize.

As you can see, it doesn’t seem like any responsible project could make a conclusive statement that it is unencumbered by any patent or trademark royalties without significant search efforts, which would be unreasonable to expect of most maintainers.

Also, there are some licenses currently recognized as Open Source that have express patent disclaimers (such as the Creative Commons v4.0 series of licenses) or express trademark disclaimers (including your own Academic Free License and Open Software License, as well as other common licenses including CDDL, CPAL, GPLv3 (permitted additional limitation, section 7), MPL, and Ms-PL/Ms-LPL/Ms-RL).  It would seem that all of these would be outside your definition if this new phrase were to include all type of IP Royalties.

I would be happy to suggest tweaking the wording to address my two points if appropriate, but I don’t want to overstep if that’s not the intention.

Thank you,
Nicholas Weinstock

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