Subject: Jbilling: Possible unauthorised use of OSI Certified service mark
From: Rick Moen <rick@linuxmafia.com>
Date: Fri, 29 Dec 2006 19:27:50 -0800

Dear OSI Board members:

Please see http://www.jbilling.com/?q=node/7&pl=pr 
Note OSI Certified logo. 

The company in question, Sapienter Billing Software Corporation, is yet
another Web 2.0 company using MPL 1.1 + an "Exhibit B" badgeware
addendum, calling it "open source".  However, this firm takes one step
further the stance characteristic of Socialtext, SugarCRM, Alfresco,
Zimbra, Qlusters, Jitterbit, Scalix, MuleSource, Dimdim, Agnitas AG,
Openbravo, Emu Software, Terracotta, Cognizo Technologies, ValueCard,
KnowledgeTree, OpenCountry, and 1BizCom, by using OSI's certification
mark in outright violation of OSI's licensing terms -- or, at least, I'd
be surprised to learn otherwise.  Therefore, I'm mentioning that use, in
case corrective action is needed.


I'd suggest Sapienter illustrates why "Exhibit B" licences (though
certainly _not_ badgeware licences generically) have become, in my view,
a serious problem:  

o  Substantively all (probably literally all 19) of the above-listed firms 
   already have considerable history of claiming in public to be open source.

o  Few if any mention their licences' lack of OSI approval.  Many
   imply otherwise; one (Sapienter) outright claims approval (as noted).

o  Not ONE has applied for OSI approval, though many are demonstrably 
   aware of OSI's approval process.  It's also notable that 
   many of their modified-MPL licences were reportedly written by OSI
   General Counsel Mark Radcliffe in his private capacity -- so it's 
   doubtful many are unaware.

o  Several of those firms' officers have already turned a deaf ear
   (so far) to suggestions on OSI license-discuss that they make their
   licences comply with OSD#10 ("License Must Be Technology-Neutral" --
   the main problem) by adding "if any" qualifiers to their licences'
   requirements concerning "each user interface screen".

o  At least one, Socialtext, falsely claims in public to use MPL 1.1
   without mentioning its licence modifications at all.[1]

Aside from Sapienter's outreach breach of trademark law, some might
object that OSI simply cannot do anything, to correct this situation.  I
beg to differ, and ask that OSI take appropriate, measured, and
constructive action:  Please consider issuing a formal statement
deploring use of "modified MPL" licenses in circumvention of OSI
scrutiny, and especially their use without clearly disclosing lack of
OSI approval.

No one is denying the value of efforts to close the much-discussed ASP
Loophole through suitable "attribution" clauses that _do_ respect the
OSD and substantively allow code reuse, forking, and other underlying
core notions of open source.  Reasonable people can create licences
containing such clauses and get them approved.  Unfortunately, the
above-cited companies are pointedly eschewing any such effort, thereby
making a mockery of OSI's moral and other authority over open source.  

Please help us of the open source community's desire to help the OSI, by
issuing a clear statement that we can use to enforce open source
standards within this troublesome area.  Thank you.

[1] http://www.socialtext.com/node/88

Sincerely
Rick Moen
(representing himself)