In December, 2004, a committee tasked by the European Commission issued a report [PDF]
open source licensing. This report concluded that, while the existing open
source licenses achieved a number of important goals, none was 100% suited
to the task of licensing software in Europe. The shortcomings they found
led the committee to suggest that the EU should adopt either a modified
version of the Open
or a completely new license drafted with European
requirements in mind.
Most of the problems found by this committee were related to terminology.
Most open source licenses, for example, allow the licensed software to be
redistributed. Under the European interpretation, however, "redistribute"
has a narrower meaning; in particular, it does not include acts like
making the software available for general download on the net. The
essential right for this sort of redistribution is "communicate to the
public." Without an explicit grant of the right to communicate the
licensed code to the public, the possibility remains that some court,
somewhere, could conclude that putting a tarball on a web site is a
violation of the license.
"Virality" is another concern of the authors, who see the GPL is being
rather more "viral" than the alternative licenses. In particular, the
authors see dynamic linkage as a barrier over which the concept of a
"derived work" cannot cross:
The viral effect through mere dynamic linkage (also called "strong
copyleft") is a much more debated question, and currently discussed
on its legal grounds. From our point of view, there is no legal
provision in the EC 91/250 directive on which this viral effect
could be grounded. On the contrary, when a program dynamically
linked with another, no code is reproduced in the program as such:
the only reproduction of code that is made occurs in the RAM of the
computer, where both the programs are "merged".
The Free Software Foundation, instead, does not feel that the type of
linking used affects the copyright status of the resulting program. This
distinction is important; it could, for example, affect the status of
proprietary kernel modules. Because they disagree with the FSF's
interpretation, the report's authors shy away from the GPL, even though
other "copyleft" licenses contain similar language - and copyleft is what
the authors say they want.
A few other details caught their attention. Licenses in Europe, for
example, are generally not allowed to outlast the corresponding
intellectual property protection period. The terms of a copyright license
thus cannot be imposed after the covered work has gone out of copyright,
should that ever be allowed to happen again. Some details in warranty
disclaimers are different, and there are certain types of warranty which
cannot be disclaimed.
In response to this report, Lawrence Rosen, the author of the Open Software
License, has announced a draft version 3.0 of the
OSL [PDF] for review. The draft is annotated so that it is easy to see
what has changed from the current version (2.1). Most of the changes are
fairly obvious given the discussion above: the OSL now explicitly grants
the right to "communicate" the software, for example. The license is no
longer "perpetual"; instead, the copyright and patent grants are for the
copyright and patent protection periods, respectively.
There are a couple of new terms which might not be popular with all users
of this license, however. The "acceptance" clause now includes the
If You distribute or communicate copies of the Original Work or a
Derivative Work, You must make a reasonable effort under the
circumstances to obtain the express assent of recipients to the
terms of this License.
This language is a response to concerns about whether a license can truly
be binding in Europe if the licensee has not explicitly accepted it. The
"reasonable effort under the circumstances" might include an active
copyright acceptance step required at download time or when the software is
installed. It is unclear what might be expected of a distributor shipping
OSL-licensed software mixed in with thousands of other packages.
The new license also adds:
Unless You obtain a separate license or a waiver of this sentence
from the Licensor, (i) You must display Licensor's copyright and
patent notices on copies of the Original Work and Derivative Works
that You distribute, in the same places and with the same
prominence as You display Your own copyright and patent notices,
and (ii) You must display a statement to the effect that "Your work
is a Derivative Work of Licensor's Original Work licensed under the
Open Software License version 3.0" in copies of Derivative Works
that You distribute, in the same places and with the same
prominence as You display Your own trademarks.
This looks like the return of the unlamented BSD advertising clause. It is
less onerous, however, in that it only requires attribution in places where
the redistributor is asserting copyright claims. Still, a splash screen
for an application built from several OSL-licensed libraries could get
unwieldy. Mr. Rosen states:
This change has nothing to do with the other changes I made in
response to the EC proposal for a license that conforms more
closely to their language and needs. It was made because certain
open source companies who contribute free software have told me
they need a way to prevent downstream distributors from simply
making it appear that the new distributors -- and not the original
author -- are the ones responsible for the work.
It is not clear how much of a problem this has been in the real world, and
whether it truly needs fixing.
The OSL is not a hugely popular license; Freshmeat claims that the OSL
applies to 0.15% of the projects listed there. There are some important
projects using the OSL, however, including Rails, Globus, ImageMagick,
and sparse. This license is well respected and carries a certain
influence. Its importance could grow if it comes to be seen as the license
to use for those who are especially concerned about adherence to European
law. So this proposed update is significant. For those who are
interested, the discussion is happening now on the Open Source Initiative's
license-discuss mailing list.
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