Subject: RE: Successful FSBs
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Sun, 27 Oct 2002 19:35:15 -0800

Tim O'Reilly wrote:
> In general, I believe that the GPL and other viral licenses 
> that prohibit mixing with proprietary software will produce 
> less total value for end users and software developers than 
> BSD-style licenses.  But I also believe they are sometimes 
> necessary to protect a piece of software that will otherwise 
> be particularly targeted for embrace and extend.
> 
> I like the ability to choose strategically.

So do I.  

I also personally agree with you that BSD-style licenses will
potentially produce greater value for end users and software developers
than certain types of reciprocal (e.g., "viral") licenses.  They should
perhaps be used preferentially by government and academic institutions
to license their software technology.  

The Open Software License wasn't written to advocate a position, but
merely to create an enforceable *contract* license that can accomplish
certain goals found desirable by many in the free and open source
community.  In particular, it supports the same reciprocal licensing
strategy as the GPL.  If you want to "protect a piece of software that
will otherwise be particularly targeted for embrace and extend," the OSL
is a license to accomplish that.  

For those who prefer a BSD-style license, OSI now recommends the
Academic Free License (www.rosenlaw.com/afl1.2.html).  It, too, is an
enforceable *contract* that addresses many of the legal deficiencies of
the BSD/MIT/X11/UoI and Apache licenses.  

Choose strategically....

Let's please just stop referring to the GPL and BSD licenses as the only
"canonical" examples of strategic licensing alternatives.  There are
some fundamental improvements in the OSL and AFL that we're trying to
encourage, among them a patent "mutual defense" provision that is in
both licenses:

   Mutual Termination for Patent Action. This License 
   shall terminate automatically and You may no longer
   exercise any of the rights granted to You by this 
   License if You file a lawsuit in any court alleging
   that any OSI Certified open source software that is
   licensed under any license containing this "Mutual
   Termination for Patent Action" clause infringes any
   patent claims that are essential to use that software. 

/Larry Rosen