Subject: Re: OVPL summary
From: Brian C <brianwc@ocf.berkeley.edu>
Date: Wed, 14 Sep 2005 06:40:24 -0700

Hi,

Chuck Swiger wrote:
> Brian C wrote:
> [ ... ]
> 
>> So perhaps the OVPL presents a more specific question to OSI: Is a
>> license that grants greater rights to an initial developer than it
>> grants to other licensees consistent with OSI's principles, in
>> particular, does it constitute "discrimination against persons or
>> groups"?
> 
> 
> No.  The author of the software generally has significant additional
> rights on the original software beyond what a proposed license grants to
> other people, by virtue of common law where that applies ("droit
> d'auteur"), having the right to release under a different license, etc.

Sure. But there is a difference between the law providing an original
author with additional rights, and enshrining further additional rights
in an OSI-approved license. The OSI cannot directly control what laws
are enacted in various countries, but they do directly control what
licenses they approve. It would be a defensible position for the OSI to
say, "The law may give the original author additional rights not
provided to others by an open source license, but we will not approve
any license as 'open source' that seeks to further that asymmetry of
rights by treating some contributors differently than others."

Also, I stopped following the lengthy OVPL discussion because of that
length, so this may have been addressed, but another way to frame the
concern is: To what extent does the OVPL's grant of additional rights to
the initial developer thwart the rights of subsequent developers to fork?

While it's not clearly delineated in the OSD's ten points (a problem
worthy of correction) "the right to fork" is fairly central to open
source software.

Perhaps the answer here is: no problem. Subsequent developers are always
free to fork, they just have to be comfortable with the fact that all of
their work may be used in a proprietary version by the ID. This is sort
of true of any BSD project fork, with the difference that the forking
developers share with the ID the right to take their work proprietary.
So again, the central question is whether enshrining such an asymmetry
in a license squares with open source principles or whether it is
discrimination.

It would also probably be a defensible position for OSI to say:
"Contributors beware: Some open source licenses treat everyone the same
and other open source licenses grant special rights to certain people.
Be sure you are comfortable with this before you contribute under such a
license."

Approving or rejecting OVPL will show us which position OSI has taken. I
just think they should realize that they will be taking such a position
and think it over carefully.

Brian

[snip]