Subject: Open Source and Creative Commons Licenses
From: burton@openprivacy.org (Kevin A. Burton (burtonator))
Date: 14 Jan 2003 22:10:43 -0800


http://www.peerfear.org/rss/permalink/2003/01/14/1042604945-Open_Source_and_Creative_Commons_Licenses.shtml

...

In the last few years we have seen the growth of Open Source in places where we
normally wouldn't have seen it.  Apple, IBM, Oracle, SUN, and other large
companies have given us very impressive examples that Open Source isn't just for
Linux geeks anymore.

The major problem is that right now it is a binary decision when it comes to
licensing your software.  You are either with us or against us.  You are either
fully Open Source software or you are proprietary software.

I don't think this is fair.  I think that a lot of applications (perhaps
BitKeeper [1] is a good example [4]) can't be Open Source for various economic
reasons.

Applications like Linux, Apache, SAMBA, etc are easier for developers to make
money from.  I have done this in the past.  For a number of years I worked
within Apache and was able to make money working for hardware and proprietary
software companies.

It worked out well!  I was able to make money working for real companies and I
was able to release my code as Open Source.  Most of my former employers could
care less that my source was open because they made their money off of selling
some type of Linux appliance.

Then I became interested in more vertical applications [2].  Applications that
are much harder to make money when available as Open Source.  These don't have
associated support or hardware alliances that I can leverage to make money.  The
only real alternative is to sell it as proprietary software or resort to more
pathetic [3] tactics and include adware or spyware (I would rather sell my soul
then do this to my users).

I thought of this a few years back when I was working on OpenPrivacy [5].  If
only we could release our software as proprietary software but keep it Open
Source at the same time.  Maybe we could do some sort of source escrow?

Then Creative Commons launches and O'Reilly mentions that it is going to try and
release its books under a "Founders' Copyright" [6].

    "The Framers of the U.S. Constitution understood that copyright was about balance
    ? a trade-off between public and private gain, society-wide innovation and
    creative reward. In 1790, the U.S.'s first copyright law granted authors a
    monopoly right over their creations for 14 years, with the option of renewing
    that monopoly for another 14 years."

What if this were applied to software that falls within the proprietary and Open
Source chasm.  What if this "balance" was applied to software?

I am specifically thinking of something that allows the developer to sell the
software (like O'Reilly with their books) but then allows the software to fall
into the Public Domain or become Open Source after a number of set months.

This ties in *very* nicely with what Lessig has recently said [7] about source
escrow: 

    "My proposal has two parts that it helps to keep separate. One is that the
    terms for software should be much shorter than they are today: 10 years
    rather than 95 years (for software written by an author but for a
    company). The other part is that the source code for that software be kept
    in escrow, so that when the copyright expires, the source code becomes free
    (as in both free beer and Free the Mouse!). Both parts, imho, would benefit
    the 'small and independent developers.'"

This is essentially very similar.   The only difference is that there is no
escrow, the source is *always* public.  

Public Source isn't as bad as it sounds.  This is essentially the ability for a
developer (or a human) to access the source code without worrying about legal
issues with the source.

Java has *always* been available as Public Source.  This leads to a lot of
confusion among Java developers (who don't read their licenses) that Java is
OSS.

Here is what I was thinking for the base terms of a CC Open Source style
license.

- Redistributions of source code must retain the copyright notice, the
  list of conditions of the license and the following disclaimer.

- Documentation may be redistributed (this could possibly be under an Open
Content style license.

- Standard disclaimer of warranty (the following is taken from the BSD)

    THIS SOFTWARE IS PROVIDED ``AS IS'' AND ANY EXPRESSED OR IMPLIED WARRANTIES,
    INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
    FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED.  IN NO EVENT SHALL
    OPENPRIVACY.ORG OR ITS CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT,
    INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
    LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR
    PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF
    LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE
    OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF
    ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

- Allows modification of the work and distributions of the patches but does not
allow distribution of the modification and the difference.
    
    Basically this is so that I can allow my users to fix bugs, release the
    fixes but still pay for the software.

- After X months (I was initially thinking 24) the software would become Open
Source under an approved OSS license.  In my situation this would probably be
GPL.  I realize that a lot of the CC effort is driven around pushing content
into the public domain but I am not sure this applies to OSS developers due to
the need to disclaim warranty and product fitness in order to avoid frivolous
lawsuits.

1. http://www.bitkeeper.com/
2. http://www.peerfear.org/newsmonster
3. http://www.kazaa.com
4. http://www.taniwha.org/bitkeeper.html
5. http://www.openprivacy.org
6. http://www.creativecommons.org/projects/founderscopyright
7. http://cyberlaw.stanford.edu/lessig/blog/archives/cooper.shtml

-- 
Kevin A. Burton ( burton@apache.org, burton@openprivacy.org, burton@peerfear.org )
             Location - San Francisco, CA, Cell - 415.595.9965
           AIM - sfburtonator,  Web - http://www.peerfear.org/
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... in fact what I would like to see is thousands of com- puter scientists let
loose to do whatever they want.  That's what really advances the field.
    - Donald Knuth