Subject: Re: Are implicit dual-licensing agreements inherently anti-open?
From: Michael Bernstein <webmaven@cox.net>
Date: Fri, 22 Jul 2005 09:29:10 -0700

On Fri, 2005-07-22 at 01:49 -0700, David Barrett wrote:
> Michael Bernstein wrote:
> > The ID is set up perpetually as the sole proprietary free
> > rider. In the worst-case scenario, the ID (and no one else) can continue
> > to use the forked code as the basis for their proprietary product, even
> > though they are now expending no effort to maintain it.
> 
> Ok, so the worst possible outcome is that the initial developer 
> freeloads on a successful open source project?  And... that's it?
> 
> Both the severity and probability of this outcome is certainly a value 
> judgment.  I wager you believe the severity is high, and the probability 
> is likely -- and I won't try to convince you otherwise.  But I 
> personally believe developers aren't so easily manipulated, nor are 
> initial developers so Machiavellian. 

Severity: Reciprocal licenses (which on the face of it the OVPL is)
exist largely in order to avoid this scenario. So, I would assume that
many others would consider the severity of this loophole high,
especially as the ID gets to relicense the work under it's own terms *to
anyone else*. Effectively, the ID can become a paid proxy for anyone
else's desire to violate the reciprocal spirit of the license.

Probability: Likely low for any particular project, but near certainty
overall if the license is at all widely adopted, and plenty of IDs *are*
that Machiavelian, witness the continued attempts by various IDs to
define their licenses as 'Commercial Open Source'. Besides, IDs have
successors in interest, for a variety of reasons (death, buyouts, etc).
It's not unreasonable to ask what such a successor could do in a worst
case scenario.

> >>Furthermore, you seem to be discounting that there's any possible way 
> >>that such an arrangement could go "right".  I mean, do you disagree that 
> >>it's possible an ID could be smart, could treat his community of 
> >>contributors fairly, and could actually release code in an open way -- 
> >>code that probably wouldn't have been released at all otherwise -- such 
> >>that he and everyone benefits?
> > 
> > Ah, but in the positive scenarios, the normal dynamics of open-source
> > licensing with a dual-licensing business model would suffice, and the
> > additional safeguards (in the form of perpetual special privileges) in
> > the OVPL for the ID are unnecessary.
> 
> "Would suffice" is another judgment call.

I was simply responding to the question you posed. The circumstances you
stated under which the OVPL arrangement would "go right" are the same
under which a more usual dual-licensing situation would "go right".

> In your case, I recognize you 
> see the hassle of gathering contributor agreements to be negligible. 
> That's fair; I recommend you do so.  But in my case, I'm a nomad.  I 
> literally have no physical address that lives longer than a month.  It's 
> not possible (or, at least, convenient) for me to harvest physical 
> contributor agreements because of the simple matter -- to where would 
> they send them?  Likewise, I live out of a tiny backpack.  I don't have 
> a file cabinet.  Even if I received all this paperwork, where would I 
> keep it?  In my case, "normal dynamics" do not suffice.

Hmm. Have you tried asking a lawyer whether electronic contributor
agreements would be enforceable, especially if digitally signed?

If physical agreements are still needed, then a suitable proxy could
surely be found, such as (perhaps) the Software Freedom Law Center.

> I'm not trying to convince you that you should use the OVPL.  I'm not 
> trying to convince you you should contribute to the OVPL.  I'm just 
> asking that you accept that there are others who need, would use, and 
> would contribute under the OVPL.

I am not yet ready to accept the need, and you should be trying to to
convince me of that.

And I am sure there are those who would use and contribute, so what?
That has no impact on the desirability of OSI adding it's imprimatur on
the license.

> I enjoy and appreciate your personal opinions on the matter.  But what I 
> really want is precise feedback on where the OVPL violates OSI 
> principles, or where it includes language that is unenforceable under 
> certain jurisdictions.  And if you don't see any such conflicts, I'd 
> like you to state that, too.

I am simply not qualified to find such conflicts.

> > I do realize that these are not *necessarily* arguments against OSD
> > compliance (I'll leave that determination to others).
> > 
> > I would however argue that the OVPL does not represent a useful (from
> > the OSI's point of view) innovation in software licensing, and I
> > strongly urge you to reconsider whether you truly need the special
> > privileges the OVPL grants to the ID.
> 
> That's fair and useful feedback -- thank you.  But I respectfully 
> disagree.  I believe the inclusion of an implied contributor agreement 
> does in fact serve as a useful innovation, does not conflict with OSI 
> principles, and is necessary for certain people and situations.
> 
> Such as me, and mine.

Perhaps. I'd like you to demonstrate that need a bit more clearly,
though.

- Michael Bernstein