Defending "open source" [LWN.net]

The term "open source" has been controversial since its inception. It was coined initially in response to two problems - the alternative "free software" is simultaneously too vague and too precise. Too vague in that it is forever forcing certain members of the community to say "not free as in beer"; the real value of free software is not that you can get it without paying. Too precise in that some of those trying to sell free software into corporate environments would rather not bring along "politics" and the image of the more intransigent members of the free software foundation. So "open source" was supposed to capture the benefits of access to the source code without scaring the managers.

One might well argue that it has been somewhat successful in that goal - but not after some ups and downs. Richard Stallman almost immediately criticized the term, and hasn't stopped since. Near the end of 1998 there was a dispute between Software in the Public Interest and the Open Source Initiative over who owned the "open source" trademark. This disagreement became moot in June, 1999, when the OSI abandoned its attempt to register the trademark in the U.S. Plans were announced to create a separate "OSI Certified" mark, but one would search in vain for a way to use that mark now; the OSI never completed its attempt to register that term either.

Despite the lack of any sort of certification or enforcement body, the "open source" term has done nicely over the years. People generally seem to know what it means, and, certainly, our community has only grown stronger over that time. Recently, however, certain companies have started testing to see just how far they can push the term. The use of "badgeware" licenses was a warning shot (covered here last November); most of those licenses are not considered to be truly open source. More recently, Centric CRM has made it clear that it intends to play by different rules:

We truly believe in our product, team and product strategy. We have never misled or mis-communicated the license that our software is based on. Our current license is not OSI-approved, nor have we ever claimed it is. But it is open source.

This "open source" license contains these terms:

You may use, copy, modify, and make derivative works from the code for internal use only. You may not redistribute the code, and you may not sublicense copies or derivatives of the code, either as software or as a service.

Clearly, this language does not correspond with the idea most LWN readers will have of "open source." There is no freedom to fork - or even to share your improvements. By making this use of the term "open source," Centric CRM is clearly stating that the Open Source Initiative has no say over what the term means.

OSI president Michael Tiemann disagrees, and has stated his intent to start defending the term:

Open Source has grown up. Now it is time for us to stand up. I believe that when we do, the vendors who ignore our norms will suddenly recognize that they really do need to make a choice: to label their software correctly and honestly, or to license it with an OSI-approved license that matches their open source label.

The sad truth is that Centric CRM may have calculated correctly. OSI holds no trademarks which can be used to discourage unwanted uses of the "open source" term. In fact, the OSI has accomplished discouragingly little over the past several years. Nothing has been done to make the OSI a more community-oriented operation; the OSI board of directors elects itself and answers to nobody. About the only visible activities at the OSI are a multi-year process to try to reduce the number of approved licenses and the occasional approval of a new license. The OSI has not "gone wrong" - it has not started approving licenses that the community would disagree with. But it is widely seen as dormant and irrelevant to anything of interest that the community is doing.

This is the organization whose president would now like to rally the community to the defense of the "open source" term. Certainly Mr. Tiemann's cause would be easier if the OSI had paid more attention to the community all along. Perhaps defending "open source" is the way by which the OSI can win back some respect. It is a task which needs to be done; either abuse of the term needs to be curbed, or, as Don Marti suggests, it's time for a new one.

It is possible to argue that anybody who is taken in by a phony "open source" license deserves all that ensues; relying upon any piece of software without understanding the license is a known recipe for trouble. But if "open source" becomes associated with non-free licenses, it will no longer be a term which we will want associated with our software. If "open source" inherently cannot be defended, either legally or through community pressure, it is time we found that out and moved on. Aggressively defending "open source" is the right thing for the OSI to do at this time; it will be most interesting to see if the OSI is up to the task.

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"Open Source" indefensible

Posted Jun 28, 2007 7:47 UTC (Thu) by bronson (subscriber, #4806) [Link]

CentricCRM includes "schematics" (source code) with their product. If it breaks, those schematics allow me to fix it myself or hire a software repairman to fix it for me. I am not allowed to distribute CentricCRM, however, just like I can't legally use Zenith's schematics to start distributing knock-offs of one of their designs.

So, while it may be considered good behavior in the hardware world, I think we can agree that this is insufficient when it comes to software.

Unfortunately, I have to agree with your last point: the OSI has done an exceedingly poor job of defining open source in public (I'm one of the few people who have actually read "The Open Source Definition"). Given the huge number of people who interpret it differently, I'm afraid the term "open source" will go the same way as "open systems" did in the 90s... perverted by greedy companies into irrelevance.

"Open Source" indefensible

Posted Jun 28, 2007 8:10 UTC (Thu) by ncm (subscriber, #165) [Link]

"however, I am not allowed to distribute CentricCRM ... this is insufficient when it comes to software."

"We" can agree, but no court would. In particular, Centric are not engaging in misrepresentation in calling their software "open", unlike (e.g.) someone advertising "free beer" but charging for it. They would not be able to justify calling it Software Libre, though, if "we" (probably SPI) were to register for a trademark on the term. That registration event would also be an ideal opportunity to prune drastically the set of licenses that qualify for the term.

"Open Source" indefensible

Posted Jun 28, 2007 17:43 UTC (Thu) by bronson (subscriber, #4806) [Link]

I agree. Now we just need to come up with a new and catchy term that everybody can agree on.

Knowing the community, I'm not optimistic! :-)

"Open Source" indefensible: OSI aims and methods in conflict

Posted Jun 28, 2007 11:28 UTC (Thu) by copsewood (subscriber, #199) [Link]

I agree. There is a fundamental mismatch between the stated aim of OSI and their current methods. The stated aim of OSI is promoting software that meets a restatement of the FSF definitions of free software but in a business friendly manner (i.e. by avoiding ethical and political issues). But OSI getting themselves in a tangle concerning trademark registration of the term they wish to promote, and finding this term unenforceable is not businesslike. OSI, on belatedly discovering this, now turn to ethical persuasion, complaining that alleged misuse of the term "open source" is unethical and requesting community support. But requesting an ethically and community-based political campaign defeats the distinctiveness of the open source concept as a ethically neutral and politics-free promotional tool in the first place.

I therefore think this is time for a rethink about terms and definitions, and to consider whether or not the "open-source" term is worth the cost of trying to defend it. Those who would ask us to consider doing so should not imagine the value of the time and effort they are suggesting should be taken up by this project within the free software community in responding to their request for community pressure to be brought to bear adversely against alleged misusers of the "open source" term, to be free as in beer.

Taking out a trademark on a new term which captures the ethical and the business advantages of the FSF free software definitions could be a better way forward. So perhaps it is time to ditch "open source" in favour of the term "software libre" for this purpose. Once this is trademarked and the trademark held by an organisation in good standing, we then have the opportunity to promote this as something new, combining the sense of freedom with the practical and commercial benefits relating to a term that can be applied to FSF definition conforming products, and which can be legally enforced against fakes.

"Open Source" indefensible? Hardly.

Posted Jun 28, 2007 16:29 UTC (Thu) by rickmoen (subscriber, #6943) [Link]

Nathan, you know that I esteem you highly, but I have to question much of your logic, here. The fact that the word "open" by itself has a long history of being abused to the point of being functionally meaningless (e.g., in the 1970s/80s standards wars among proprietary Unix companies) in no way dictates "open source" being doomed to meaninglessness in the software context -- any more than the inherent vagueness of the term "record" dooms the related term "phonograph record" to meaninglessness.

Any attempt to defend the term "open source" is doomed.

You state this, but don't even attempt to say why. I find this odd. Moreover, in my experience, it's been simply not so, over a period of many years.

Consider, in fact, CentricCRM. In the past few days, aware of the burgeoning PR problem they've set themselves up for, they've tasked a public relations firm with arranging briefings of reporters with executive vice-president Michael Harvey about how, despite recent controversy, they're genuine open source players because their product "Centric Team Elements v. 0.9" is being released under OSL 3.0.

Now, that's really good news, despite a bit of sleight-of-hand in the short run. The latter is because Centric Team Elements isn't (yet?) the firm's flagship product -- Centric CRM 4.1 is, and it remains under a highly proprietary (no redistribution) licence, a licence that continues to be deceptively portrayed on the company's Web site as "open source". This is good news anyway, because (1) it shows that the firm is aware of, and sensitive to, the PR debacle they've created for themselves, and (2) they seem to be at least starting to fix it. (Maybe they're intending to phase this apparently new product in, as the replacement flagship product.)

My point is that, even in this most egregiously cheeky of violation cases, the term "open source" is proving to be defensible. You say it can't be; I say it already is, and has been all along.

Rick Moen
rick@linuxmafia.com

"Open Source" indefensible? Hardly.

Posted Jun 28, 2007 19:48 UTC (Thu) by ncm (subscriber, #165) [Link]

You state this, but don't even attempt to say why.

We all know the trademark registration attempt failed. I already explained why a business has no reason to fear being accused of misrepresentation for using the term in ways the OSI hasn't blessed. Therefore, it is not just "open" that is vague the point of meaningless: "open source" has been delared officially indefensible, legally. It may be, as you suggest, that Centric has reason to want to maintain good relations with the Free Software community and with defenders of the "open source" non-trademark, and can be expected to come around. That is not true of hundreds of other, similar vendors.

Once one or a few companies with no need for good relations with us begin "mis"-using the term in their business communications, there will be nothing to stop the rest. They will say, correctly, that their customers are happy with their implementation of their definition. Once a few other vendors do, Microsoft may happily join in, announcing that their "Shared Source" scheme qualifies for the term too.

At the time "open source" was coined, many business people were afraid of Free Software. Nowadays, MS takes out double-page ads claiming that their software is as fast, as reliable, or as secure, as ours. There's no need for us to mince around any more.

We have all seen what happened to "open systems": everybody bemoaned the dilution of the term, but nothing could (legally) be done about it, and community approbation had no ultimate effect. The sooner we leave the "open source" swamp for firmer ground, the better it will be for Free Software, and (should it catch) for "Software Libre(TM)". The writing is on the wall. The only question is, will we wait until the damage has been done and try to react, or will we act now to prevent the damage?

"Open Source" indefensible? Hardly.

Posted Jun 28, 2007 21:23 UTC (Thu) by rickmoen (subscriber, #6943) [Link]

Nathan wrote:

I already explained why a business has no reason to fear being accused of misrepresentation for using the term in ways the OSI hasn't blessed.

With respect: No, you did not.

You said the founders' omission of an explicit goal of freedom made it inevitable that abusers would try to misappropriate the term. I'm not sure I agree on any such causal connection -- but even if one agrees that abusers will be motivated to try, that doesn't establish that they will succeed (that they were "have no reason to fear being accused of misrepresentation").

Moreover, as I've pointed out and cited one of many possible examples to illustrate my case, facts on the ground confirm that they do fear being accused of misrepresentation: Over time, they find that the PR drawbacks tend to outweigh any gains with customers. (I certainly cannot say that such will always be true. However, the longer we of the software using public insist on the word's real meaning, the more squirrely people who violate that understanding will look to fair observers.)

Once one or a few companies with no need for good relations with us begin "mis"-using the term in their business communications, there will be nothing to stop the rest.

With respect: No. If that were the case, it would have happened years ago. You act like this is somehow a new problem: It's not. We've been through cycles of businesses infringing and retreating on this matter, repeatedly, for most of the past nine years.

Even the "badgeware" ("Exhibit B") Web 2.0/ASP firms are gradually backing down and are either switching to genuine open source (Alfresco and Compiere) or are making impressive efforts to change their substantive licence terms to reasonably accomodate licence critics from the community (MuleSource, Medsphere).

Clearly you (still) don't like the term "open source", and I respect that. But your arguments against it being defensible simply don't make logical sense.

We have all seen what happened to "open systems":

Yes, we did. But the question is, which one of us remembers that historical episode more clearly? The way I remember it, "open systems" was never more than a vague marketing term approximating the concept of binary interoperability and published protocol standards. Nobody (let alone an industry-neutral foundation like OSI) established it ab initio as a formally defined concept with a standard of identity; it was in essence nothing more than brochureware ammunition for the consortia wars between various proprietary Unix companies. It started out meaning almost nothing; it ended up exactly the same.

If you don't see the difference, I think you need to look a little closer.

Rick Moen
rick@linuxmafia.com

"Open Source" indefensible.

Posted Jun 28, 2007 22:47 UTC (Thu) by ncm (subscriber, #165) [Link]

Vendors' use of "open source" to describe their proprietary software is not misappropriation, in any sense. They cannot misappropriate a term that is in the public domain, so they have no need to "try"; they just use it. Since the term is legally undefined, claiming their products qualify for it is not misrepresentation. It's just ordinary business buzzword BS. Accusations of "misappropriation" or "misrepresentation" amount to no more than bluster.

I think Rick is confusing, here, legal consequences with (hoped-for) P.R. consequences. Many vendors have no reason to fear any such P.R. consequences, and many actually stand to benefit from them. (One may present any number of examples of companies that do care without contradicting the previous statement.) Some vendors even game the P.R., first claiming to offer "open source", then defying OSI criticism, and then "coming to an agreement" with OSI, getting free publicity each time, all with no fear of commercial or legal consequences. OSI will always be on the defensive with "open source", because of its nonexistent legal position, and always readily gamed.

"Open Source" indefensible? Still no.

Posted Jun 29, 2007 1:42 UTC (Fri) by rickmoen (subscriber, #6943) [Link]

Nathan wrote:

Vendors' use of "open source" to describe their proprietary software is not misappropriation, in any sense.

Again, with respect: No. Absolutely false. OSI has an overwhelmingly clear moral and historical claim to being continuously the custodian of the definition of "open source" in the software context, ever since having invented and promoted that concept and (very explicit) definition.

(To repeat a point I made on another recent LWN feedback, once on OSI license-discuss, a detail-freak attempted through Herculean research efforts to challenge the latter fact using the then newly restored DejaNews^WGoogle Groups archive. He eventually found, if memory serves, exactly two brief, one-off coinages of the term that arguably, maybe, briefly anticipated OSI's by a small margin -- but those persons never went anywhere with their arguable brushes against the concept, while OSI has continuously promoted and carefully defined it formally, and made it famous.)

Attempting to recast this discussion into terms of what vendors can get away with legally completely misses the point. I'm really very surprised I have to point this out, especially since I've said it before on LWN, very recently -- and doubt greatly that any legitimate controversy can be said to exist.

I think Rick is confusing, here, legal consequences with (hoped-for) P.R. consequences.

No, sir, I most certainly am not, and I cannot fathom why you would think so.

Many vendors have no reason to fear any such P.R. consequences....

Nine years of experience in this area, so far, have failed to support your assertion. Again, I have already pointed this out, supra.

OSI will always be on the defensive with "open source"....

If you will please carefully read my explanation to "smoogen" of some of the legal realities of trademark registration (see in particular point #2 and the link to the page on trademark law at Harvard Law), you will realise that any attempt to register trademark based on a general concept rather than a defined brand identity is going to be resisted by USPTO and probably rejected because it will be classified as a "descriptive" mark without the required "secondary meanings" needed for that sub-category.

But, more fundamentally, your implicit assumption that a concept that cannot be enforced through lawsuits for trademark violation is hopeless -- is plainly incorrect. Again, I point to the long (nine-year) history of exactly the opposite occurring, concerning "open source"

Some vendors even game the P.R....

Maybe -- but all of the incidents I've seen (and I think I've seen pretty much all of them) strike me as having the flavour of stepwise improvisation following initial inadvertancy.

Rick Moen
rick@linuxmafia.com

"Open Source" indefensible? Still no.

Posted Jun 29, 2007 1:57 UTC (Fri) by JoeBuck (subscriber, #2330) [Link]

Besides, there's another issue that goes beyond trademark law: fraud.

If a term is widely interpreted as meaning one thing, and a product is sold using the term to mean something completely different, it's false advertising, whether or not the term is trademarked.

"Open Source" indefensible.

Posted Jun 29, 2007 2:52 UTC (Fri) by ncm (subscriber, #165) [Link]

"Accusations of "misappropriation" or "misrepresentation" amount to no more than bluster.

Likewise, "fraud", same reason.

"Open Source" perfectly defensible

Posted Jul 10, 2007 14:17 UTC (Tue) by pdundas (subscriber, #15203) [Link]

Accusations of misrepresentation and fraud, if well founded, are certainly not mere bluster. The criminal law and advertising regulators in various jurisdictions are certainly be able to take an interest, if a company seems to be making untrue claims about their products.

And if the term "Open Source" has a clear and generally accepted (within the trade) meaning - and I believe it does - then unfounded claims to be "Open Source" do amount to fraud or false advertising, and can have legal consequences.

The fact that the term could not be trademarked because it was "descriptive" is no indication that the descriptive meaning is not clear or generally accepted.

"Open Source" indefensible?

Posted Jun 29, 2007 18:17 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

"open source" has been delared officially indefensible, legally.

It looks like you're referring to the USPTO's refusal to register it as a trademark. But that's very different, largely opposite, of saying you can't stop anyone for using the term for anything.

That says you can't arbitrarily stop someone from calling a product "open source," but you can certainly stop someone for using it in a way inconsistent with the common meaning of the term. Refusing trademark registration implies the term has a common meaning.

Various laws other than trademark control advertising a product as something it isn't.

So that leaves the question of what the common meaning of "open source" is, which I won't comment on because my point is just that the USPTO's refusal doesn't make the term indefensible.