Subject: RE: For Approval: Common Precertification Development and Distribution License
From: "Marc Whipple" <MWhipple@itsgames.com>
Date: Wed, 7 Mar 2007 13:43:09 -0600

 Wed, 7 Mar 2007 13:43:09 -0600


-----Original Message-----
From: Matthew Flaschen [mailto:matthew.flaschen@gatech.edu] 
Sent: Wednesday, March 07, 2007 1:15 PM
To: License Discuss
Subject: Re: For Approval: Common Precertification Development and
Distribution License

Marc Whipple wrote:
>> To the license-discuss list:

>> 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.

>I'm not familiar with these types of industries.  However,  aren't
these
certifications generally expensive and time-consuming? 
[Marc Whipple] 

That is a fair general statement.

>Also, it was my
impression that they become invalid after slight modifications.  I don't
think it would be effective for a redistributor to reapply for
certification.  In fact, this seems like an inherent advantage for the
initial developer.
 
[Marc Whipple] 

That is a valid concern. However, in, for instance, the gaming industry,
every *product* must be certified by a licensing authority (usually by
submitting it to an authorized testing laboratory designated by each
jurisdiction,) even products which are mostly comprised of previously
certified material. There's no way around that requirement. Active
Contributors to the development process will all have equal access to
the project and can submit for certification at any time, including
contemporaneously with other certification submissions. There is no
competitive advantage for either the Initial Developer or Contributors.
In fact, the Initial Developer, assuming it has submitted anything like
a useful starting point, is assuming a huge competitive risk that later
Contributors will submit one or two extremely minor Modifications and
then use their access to catch up with or leapfrog the Initial
Developer's progress.

>> 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

>Really, that breaks it right there, in my opinion.  OSD #1 says, "The
license shall not restrict *any party* from *selling* or giving away the
software".  Limitations just aren't okay here, even for limited times.

[Marc Whipple] 

I see your point. As I read OSD#1, my interpretation was that it could
be read to allow a temporary restriction for non-fee-related purposes.
(It specifies that fees cannot be charged.) If my reading was too
narrow, then it was.

Another list member (thank you, Mr. Swiger) has pointed out that he
submitted a similar license some years ago and it was denied
certification on this ground. If the territory has been covered, then it
has, and I am certainly not going to try to reverse something that has
been firmly established without more justification than, "If you don't
do this, then we can't do an Open Source project in our industry because
no one will participate." It is sad but true that not all applications
will at this time support an Open Source approach. 

>> to active contributors
>> during the development process and for a limited time thereafter.

>It appears that this limited time can only end (180 days) after
certification.  That means a developer could create software that isn't
certifiable, and it would permanently be non-commercial.  Thus, even if
a limited non-commercial period were acceptable, this could end up being
permanent.

[Marc Whipple] 

I won't deny that this is possible. As I pointed out, it is anticipated
that the CPDDL will be used with software destined for certification. In
some industries, non-certified software can't be used at all, and
furthermore, any Contributor can submit a Modified Version for
certification at any time, even if the Initial Developer or other
Contributors don't want them to. The actual likelihood of
non-certification being used as a tactical technique is vanishingly
small, in my opinion.

>> The changes to the CDDL all relate to this goal and incentive
concept:
Commercial Use is defined and restricted during development to active
>> contributors

>This is a violation of OSD #5, "The license must not discriminate
against any person or group of persons."

[Marc Whipple] 
I submit that reading this limitation as a discrimination is too broad
an application of the term. All licenses discriminate against persons or
entities which violate their terms, at the very least by revoking some
or all of the license rights.

>> 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.

>Of course, all OSI-approved licenses do grant these unrestricted
rights.

[Marc Whipple] 

Do all OSI-approved licenses grant rights to, for instance,
misappropriated software integrated into a contribution? I don't think
they do, or could. My argument is simply that offering those rights
which one does not yet have under the terms of another license doesn't
grant the offer legitimacy.

>> 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.

>This isn't a departure from customary technique.  It's abandoning a
core
requirement of the free/open source ethos, and it just can't work.

>The license you want is not open source.

[Marc Whipple]

If it isn't, then it isn't, and I thank you for your time and effort in
addressing the situation. I hope that you and other readers accept the
fact that we really do want to do things right, and if we can't make it
work, at least we made the effort.

Very truly yours,

Marc Whipple