Subject: RE: BSD-like licenses and the OSI approval process
From: "Philippe Verdy" <verdy_p@wanadoo.fr>
Date: Tue, 16 Oct 2007 19:58:04 +0200

Chris Travers [mailto:chris.travers@gmail.com] wrote:
> On 10/16/07, Matthew Flaschen <matthew.flaschen@gatech.edu> wrote:
> 
> > Doesn't that risk the eventual possibility of a court having to decide
> > whether something is OSD-compliant (to settle a trademark lawsuit)?...
> 
> What makes you think that the OSI could even justify or win such a
> lawsuit?  To be clear, it is not a lawsuit I am worried about but
> rather public pressure on the part of a relatively powerful
> organization in the community.
> 
> Does the OSI have any sort of trademark rights to the term "open
> source?"  If not, then this isn't at all a problem.  (I am not sure
> that even a registered trademark would be valid as it seems to have
> widespread generic use predating the trademark, but IANAL.)
> 
> In short approval of a license class could be done in such a way as to
> say "We, at the OSI, have no problem with people calling these
> licenses open source?
> 
> > Even if it were appropriate for the court to make that judgment, I
> > really don't want OSI to have to sue just because some blatantly
> > proprietary vendor insists they're legitimately self-certified.
> 
> So the alternative in your mind is to certify every reasonable BSDL
> variant individually?  Or do we insist on PostgreSQL not being "Open
> Source?"
> 
> >  People
> > can already abuse the trademark, but it's obvious from the license list
> > they're not approved and thus it's unlikely to get to court.
> 
> Which trademark?  You are right that I would not support the use of
> "OSI-Approved or OSI Certified" for such licenses.  More along the
> lines of "Meets the standards of OSI License Class X."

I fully meet you on your arguments. As long as "open source" remains an
unprotected expression, and the OSI has no legal exclusive right on it, it's
illusory to propagate false information about those that use it lawfully
even if they don't have the OSI approval.

The OSI would even deserve its own interest by propagating such false
information, unless it demonstrates that it is the legitimate and legal
owner of the expression.

Otherwise, OSI should better campaign into creating a commons of compatible
licences that are known to work well with each other, and convince the
developers that getting the OSI approval for their licence is important to
them as it allows them to make better products, by reusing themselves the
same compatible products for their own creations, without abusing any of the
licences.

I perceive the work of OSI being only useful because it is a collaborative
work to share the load of verifying the licencing terms, in order to secure
the various open source projects that need such verification. This is for
their own security.

Then OSI could promote an optional logo to allow those developers to display
that their product is compatible with others, and interoperable. They will
get more users (due to increased confidence in the software and its
legality), more contributors, more quality in their own creations due to
more reviewals by third party.

They will gain new interesting features and ideas to implement, and they
will profit themselves of these contribution for their own personal work.

Finally Ifind the ongoing battle between "free licences" users and "open
source software" completely sterile. Both the FL and OSS communities benefit
a lot from each other because they have a large commons ground, and most of
the licence they approve onone side are also approved by the other.

It's not in the interest of the FL supporters or OSS supporters to split
their communities, when there are so powerful organizations that are
constantly threatening their rights by restricting their own innovations and
effective work by anticompetitive practices like predator patents (without
any actual implementation or work performed by their owners) that are just
registered to make money with them for very long terms.

The FLOSS community is one, and must remain united, but even if it must
learn how to protect itself against proprietary licencing schemes and
threatening patent, this does not mean that the FLOSS community will win
more by stealing the legitimate right of those that have used lawfully the
terms "open source" for their products without asking permission to OSI.

As far as I know, this expression is not a trademark and it is too late now
to register one because of the historic widespread usage before OSI was ever
created. The only registered and protected name is the distinctive name of
the OSI organization and its logo.

Don't loose time on lost battles when you don't have any right to claim what
you think should be better for you. Your right is not universal and is not
better than other's rights.