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Book Review: Open Source Licensing: Software Freedom and Intellectual Property

Book Review: Open Source Licensing: Software Freedom and Intellectual Property

Rosen's Five Principles incorporate the spirit of the Open Source Definition, and memorialize the virtues of brevity, both in number and wording, simplicity of expression (as opposed to the restrictive detail of the OSD), and the force of legal experience and opinion. The licenses themselves are concise and address all the legal problems that Open Source software faces in a world of sharp-eyed managers and attorneys. The Principles shouldn't provoke long debates about their exact meaning the way the Open Source Definition does.

So far academic licenses (such as BSD, MIT) and reciprocal licenses (such as GPL) have gone down separate paths. Rosen's Open Source License (OSL) and his Academic Free License (AFL) share most of their wording to cross-pollinate between the two categories and clarify the differences between them.

Each addresses issues of great concern to business and attorneys. Both deal straightforwardly with many issues neglected in Open Source licenses: trademarks, patents, contracts versus bare licenses, provenance (the chain of licensing), warranty, and application service provider (ASP) software, while continuing the traditions of academic and reciprocal licensing.

They differ only in the OSL's demand for reciprocity; otherwise:

  • Both are unilateral contracts: the licensor makes promises and sets conditions that must be met for the licensee to enforce the promise.
  • Both require software distributors to "make a reasonable effort...to obtain express consent" to the licensing terms.
  • Both cover all five rights under copyright - to make copies, prepare derivative works, distribute those copies and derivative works, and in the case of content to perform publicly (music, drama) or display publicly (art).
  • Both grant patent licenses for the original software.
Both expressly:
  • Let "you" use the software; the definition of "you" includes corporate entities.
  • Let authors license the work under other licenses besides OSL/AFL.
  • Require that copyright/patent/trademark notices be retained in a work.
  • Warrant provenance of the work (the licensor warrants that he has the right to license to you) and disclaim other warranties (the software is accepted AS IS).
Both require that appropriate documentation accompany the source code (just as in a software escrow agreement).

Both let copyright law and courts define what a "derivative work" is, bringing a long legal tradition to bear on Open Source software.

An easy way to tell the licenses apart is to remember Rosen's distinction between academic licenses (maximum freedom of reuse) and reciprocal licenses (you must share the modifications and all the source code if you distribute or modify the software). He makes this distinction by changing the wording in the OSL and the AFL in only two places:

  • The OSL requires that all copies of the original work and the derivative works be distributed under the OSL.
  • The OSL adds a definition of external deployment embracing all distribution, even if the original or derivative work is "made available as an application intended for use over a computer network." The definition of "you" in both licenses makes clear that distribution inside a company is not the kind of distribution that would invoke the reciprocity clause in the OSL, but its "network" language also makes it clear that a company can't modify OSL-covered software and then make its available as ASP to people outside the company.
The simplicity and elegance of these licenses attest to Rosen's years of experience, and the attention given to ASP distribution in the OSL, derived from the ASP provision in the RealNetworks Public Source Licenses (http://opensource.org/licenses/real.php), solves the problem that the FSF has spent years wrestling with in trying to finish GPL 3.0.

 

More Stories By Donald Rosenberg

Longer bio:


Donald K. Rosenberg is president of Stromian Technologies, a marketing consulting firm specializing in OEM software licensing and Open Source licensing and marketing issues. He is the author of Open Source: The Unauthorized White Papers, (Wiley), a book taking a business approach to Open Source software, now on the Web at ftp://ftp.novell.com/pub/forge/documents/Open%20Source:%20The%20Unauthorize
d%20White%20Papers/FrontMatter.html.
Don has twenty years of marketing experience and has worked with companies large and small in the U.S. and Europe, both in Open Source and
proprietary software licensing and marketing. Besides consulting on
these issues, Don has given talks about them at USENIX, ALS, Linux.SYS-CON.com (San Francisco, Frankfurt/M), Wizards of OS (Berlin), CeBIT (Istanbul), Comdex (Las Vegas, Basel), and in Taiwan and Slovenia. His column, Rosenberg's Corner, deals with Open Source and business issues.


Shorter bio:

Short bio:

Donald K. Rosenberg assists software companies with licensing and business/marketing strategies at Stromian Technologies and wrote Open Source: The Unauthorized White Papers, (Wiley), a book taking a business approach to Open Source software, now on the Web at ftp://ftp.novell.com/pub/forge/documents/Open%20Source:%20The%20Unauthorize
d%20White%20Papers/FrontMatter.html.

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