Subject: RE: For Approval: Common Precertification Development and Distribution License
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Wed, 7 Mar 2007 11:39:12 -0800

Marc Whipple wrote: 
> To our knowledge, such a combination of temporary restriction and license-
> term shifting has not been incorporated into an Open Source license
> before. 

There's very little new under the sun. (And I don't mean the company!) 

Your business model is like that used by Aladdin (now Artifex Software) to
distribute Ghostscript. For a period of time, typically a year, Ghostscript
software is distributed under a non-open source license not for commercial
use. [See the Aladdin Free Public License,
http://www.cs.wisc.edu/~ghost/doc/cvs/Public.htm.] Commercial licenses are
also available to the company's customers during that period for a fee. None
of these licenses qualifies for OSI approval.

A year later the company elects to distribute the same software under the
GPL. This model builds a successful business upon that one-year time-period
commercial advantage. That's not contrary to open source, but it isn't open
source. I call it "Eventual Source" in chapter 11 of my book, available for
free at http://rosenlaw.com/oslbook.htm. 

A slight bit of history: Peter Deutsch, the author of Ghostscript and of the
Aladdin Free Public License, is a good friend who originally introduced me
to open source. He was on the original board of directors of OSI. He knew
Richard Stallman well, and RMS was (I believe) sympathetic to Peter's
not-quite-free-software license and business strategy. While some of us
might wish that all software was open source from birth, others of us are
tolerant of a time-based commercial advantage that rewards innovation and
promises eventual freedom.

/Larry Rosen


> -----Original Message-----
> From: Marc Whipple [mailto:MWhipple@itsgames.com]
> Sent: Wednesday, March 07, 2007 10:37 AM
> To: license-discuss@opensource.org
> Subject: For Approval: Common Precertification Development and
> Distribution License
> 
> To the license-discuss list:
> 
> We would like to propose a new Open Source license called the Common
> Precertification Development and Distribution License ("CPDDL") for
> certification. It is based on the Common Development and Distribution
> License ("CDDL") of which Sun Microsystems is the license steward. It is
> our hope that the CPDDL will encourage the development of Open Source
> software useful in commercial applications, even in highly regulated or
> sophisticated industries such as gaming, finance, or equipment control
> systems development, especially for software which is destined for
> eventual certification by independent certification or licensing
> authorities. Currently, implementing standards and protocols, especially
> new and advanced protocols, under Open Source terms is very difficult to
> do in some industries, especially highly regulated ones. This is because
> there is little incentive to participate or to allow employees to
> participate in Open Source development projects which are perceived to
> grant competitive advantages to competitors, especially in industries
> where involved certification proceedings are the norm. If an Open Source-
> derived piece of software obtains certification, a competitor could then
> incorporate it into their own products and, depending on the industry,
> either immediately reap the benefit of the certification or obtain a high
> degree of confidence that the product would be certified with little or no
> resistance.
> 
> In order to provide incentives for such development either by commercial
> entities or by the employees of such entities with their approval and
> consent, the CPDDL provides that commercial usage rights for software
> developed under its terms are limited to active contributors during the
> development process and for a limited time thereafter. Non-commercial use
> is allowed under very broad terms at all times. The changes to the CDDL
> all relate to this goal and incentive concept: Commercial Use is defined
> and restricted during development to active contributors, active
> contribution is defined, and the terms under which covered software may be
> certified and thereafter be covered by a less restrictive Open Source
> licensing agreement (the GNU Lesser Public License) are set forth.
> 
> Covered Software (software developed under the CPDDL) may be used at any
> time in combination with other Open Source software under any license
> which does not directly conflict with its terms. We are not aware of any
> license which is entirely incompatible with the CPDDL, although any
> license which claims to grant unrestricted Commercial Use rights to
> Covered Software which has not yet been certified would create a conflict.
> In such a case, the terms of the CPDDL are quite clear in that Commercial
> Use rights are not the contributor's to give and therefore any attempt to
> incorporate Covered Software into a broader and less restricted license
> would fail. The terms of the CPDDL would take precedence for derivative or
> combined works with regard to Commercial Use during the restriction
> period. After the restriction period, the extremely broad terms of the GNU
> Lesser Public License would apply.
> 
> To our knowledge, such a combination of temporary restriction and license-
> term shifting has not been incorporated into an Open Source license
> before. We are aware that this is a departure from customary Open Source
> licensing techniques, and we ask that you consider our goals and our
> attempt to attain them while maintaining the spirit of Open Source in a
> highly regulated, highly competitive environment with open minds. We are
> prepared to defend our aim, but we are also prepared to accept comment,
> criticism, and sincere attempts to improve our method of achieving it. We
> welcome, and would be grateful for, your input.
> 
> You will find the CPDDL attached to this message as a plain-text file.
> Anyone who would like a Word, HTML or PDF version of the document is
> invited to email me directly and I will be glad to forward one. Thank you
> for your attention.
> 
> Very truly yours,
> 
> Marc Whipple
> 
> -><-
> 
> Marc Whipple
> General Counsel
> Incredible Technologies, Inc.
> 3333 North Kennicott Avenue
> Arlington Heights, IL 60004
> V: 847-870-7027
> F: 847-870-0120 (Please advise before transmitting sensitive documents.)
> 
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