Subject: RE: [Fwd: FW: For Approval: Generic Attribution Provision]
From: Michael Tiemann <tiemann@redhat.com>
Date: Sun, 21 Jan 2007 21:54:21 -0500

On Sun, 2007-01-21 at 18:18 -0800, Lawrence Rosen wrote:
> Rick Moen wrote [about OSD #10]:
> > That provision is _necessitated_ (and implied) by the right to fork and
> > to create derivative works and use them for any purpose, but OSI had
> > failed to realise it was necessary to say so in the OSD -- until the AAL
> > come along and made OSI realise that, yes, some people _do_ feel
> > impelled towards such goofy things.  Thus, it passed a new OSD provision
> > to say "No, we meant to say, you can't do that, either."
> 
> That isn't historically correct.
> 
> OSD #10 was written in response to something entirely different. There were
> attempts at that time to propose licenses that mandated "click-wrap" and
> similar "I accept the license" interfaces in distributed open source
> software. Much of the community thought it was unseemly to force a specific
> method of license acceptance onto future software distribution modes,
> specifically downstream derivative works that would have to retain
> technologically obsolete or interactive code for contract formation
> purposes. The OSI Board decided to foreclose such license provisions by
> adopting OSD #10. Thereafter, an open source license could require a
> "reasonable effort under the circumstances to obtain the express assent of
> recipients" (see AFL/OSL 3.0  9) but nothing more technologically specific.
> 
> As with the Amendments to the U.S. Constitution, when you say something in
> the OSD you are bound to interpret that provision consistently when other
> newer technologies and facts come around. So if it was improper under OSD
> #10 for an open source license to mandate upon derivative works a technology
> of license assent (presumably to encourage people to do what's best to
> protect them legally, but that's not enough reason to tamper with freedom!),
> shouldn't it also be improper to mandate a technology for author
> attribution?
> 
> There may also be another object lesson in here for attorneys proposing GAP.
> At the time of OSD #10, I was general counsel of OSI, and I simultaneously
> was leading the effort to allow open source licenses to mandate "click-wrap"
> because some licensors felt they needed the extra level of legal protection
> that contract formation brings. I was roundly Slash-dotted. The Board
> overrode my objections when they adopted OSD #10 and I, as their lawyer, did
> what my clients wanted. 
> 
> By way of apology, I long ago realized the community was right and I was
> wrong. The general principle that today's technology shouldn't lock in the
> future is a sound one. The Board made the right decision when it adopted OSD
> #10. 
> 
> We should not give up that principle lightly now that the GAP is before us.
> In particular, any specific technology mandated by a license for derivative
> works ought to be justified upon the strongest of grounds. I haven't heard
> that yet for GAP. 
> 
> Business model success isn't, in my mind, those strong grounds. Remember
> that, regardless of what the OSI Board decides about the GAP, its licensors
> will remain free to distribute source code and to authorize their licensees
> to create free copies and derivative works--and free to demand certain
> attribution (or contract formation) procedures in derivative works. It
> simply won't be an OSI-approved license. It won't conform to OSD #10. It
> won't be open source software as we now define it.

Larry,

I'd like to thank you for writing such a clear note about both the
history and lessons learned surrounding OSD #10.  You show great courage
in acknowledging a past mistake, and in so doing, you contribute to the
greater good of the community.  Thanks for doing so, and thanks for
staying involved in the process of community discussion of these very
important topics.

M