rfc1394's Journal: On Criticism of Open Source Licensing

There is an article by DasBlonde criticising the issue of open-source licensing terms at this location.

Here is my response:

I'd like to comment on a number of points:

1. Free Redistribution: The software can be given as part of a package with other applications;

Not all third party applications require a license fee to redistribute therefore this does not "distinguish" open-source.

Many applications have, and in some cases might still, charge a fee for each run-time copy released, or over a certain number. I'm not talking about something like requiring the user to have, say, Access or Word to use a file, I'm talking about the case where someone compiles a program and is required to pay a licensing fee for each copy of the run-time system (that is compiled into their released application) that they release to their customers.

2. Source Code: The code must either be distributed with the software or easily accessible;

Great! So now our government IT departments will spend time writing code at the kernel level, and hopefully it won't introduce bugs to the system.

I do not know if you're intentionally raising straw men or simply do not understand the issue. The issue is not about people doing kernel-level device drivers, the issue is about access and transparency. When people have access to the exact same source code, they can see, with their own eyes, what is present and how it works, if they choose. They have the capacity to understand what is going on inside the system.

I found a bug in the installer for an open-source compiler once, when I noticed it was doing something wierd. I went and looked at the source to the installer, and discovered it was making a bad assumption regarding disk space. I was able not only to report the bug, but the exact line number in the source where the error was. All I would have been able to do in a closed-source application was note the misbehavior, I could have done nothing to help find it. This is free labor I donated to help improve the product.

3. Derived Works: The code can be altered and distributed by the new author under the same license conditions as the product on which it is based;

Right, and what's more, when those licenses are invalidated by all of the infringing patents that lurk, they get to violate those as well.

And you're saying that closed source programs are completely uninfringing of anyone else's patents? That there are never any possible patent infringement issues lurking in any closed source application?

Check out Microsoft's End User License Agreements. Not only do you have no ability to see anything inside the source code - unless you're a huge customer, and then all you might get is a 'view only' license and no means to make any changes - Microsoft will not stand behind you or grant you indemnification if their software infringes on patents issued to someone else. Their EULA specifically says that they make no promises that their software is non-infringing.

And I'd like to ask something else: How exactly do you think it was discovered that those potential patent infringements were there? Because people could examine the source and identify the points involved.

A number of software patents would probably be found to be invalid because they are trivial and/or fail to be non-obvious, but the examiner either didn't know that or couldn't prove it. The average patent examiner has less than 10 hours to look at a patent application and determine what it is doing and what it claims, and ask whether or not this is valid. And patents are written as legal statements, not as an algorithm, so deciphering them is not easy.

The problem here is with the broken and disfunctional patent scheme used in the U.S., not with open source.

4. Integrity of the author's source code: Derived works must not interfere with the original author's intent or work;

Terrific! So, correct me if I'm wrong, but basically does this mean that anyone who modifies source and gives it back to the community to share is on an honor system to "not interfere". And if someone fails to meet this requirement, are they sent to jail? Do they receive a good IM scolding? Will they lose all their network gaming friends?

It simply means that if you change the source you should indicate it is not the same as the original issued by the original author, out of common courtesy, so that if your code changes break something, people don't go back to the original author if they're using your changed version and inform him or her that their program is broken, when it's your change that is broken. Especially since the original author might either not know about the change (if you didn't pass it on to them) or might have decided not to use your change (if, they felt it was too buggy or the function was of too limited a scope to be generally useful other than in very limited cases.)

5. No discrimination against persons or groups;

This is an interesting bullet. So, do software vendors discriminate?

Some do or did; see the next item.

6. No discrimination against fields of endeavor: Distributed software cannot be restricted in who can use it based on their intent;

Again with the "discrimination" thing, but this is completely vague so I have nothing more to say here except: What on earth do you mean by this?

Some software back in the 1980s and later had restrictions such as not permitting it to be used in South Africa, or specifically prohibiting any police agency in South Africa from using it, generally because of disgust over apartheid.

While working to ban the practice may be a laudable goal, trying to do so through a software license is silly (because the person who put it in is unlikely to be able to enforce it, and those restricted by it are probably going to ignore it anyway for that reason.)

If you release a software package under that type of license, it means, for example, that you have to let abortion clinics and abortion protesters use it, no matter which side of the fence you're on on that or any other issue. (Somehow I feel I should toss something in here like I wish the baby murderers, and those who want to send women back to coat hangers, would leave the rest of us alone, but I don't want to sound strange because people would wonder how I could be against both sides, but sometimes I am strange, so I won't say it!)

8. License must not be specific to a product; Meaning that an operating system product cannot be restricted to be free only if used with another specific product;

Hey, free is free, however you get it free...who cares? Besides that, I have no idea how this comment really helps government IT.

Certain products from Microsoft are licensed only when used with Microsoft operating systems, and specifically prohibit use with non-Microsost operating systems or certain other software. This, in effect, is what is called a "tying clause" and in certain legal circles it is considered an unfair business practice.

9. License must not contaminate other software; and

Well, the term was "restrict" not contaminate...I guess this is intended to draw attention...and, well look there you have it. The point here was to ensure open-source software license didn't require other software shipped with it to be open-source. I don't know how other vendor's infringe on this... anyone else know?

It is also to prohibit an application from not allowing you to use other applications with it, so that neither a closed-source nor an open-source application or operating system can prohibit you from using any other software product, whether it be open or closed source.

10. License must be technology-neutral.

Meaning, you can use open-source software to build any type of software application your little heart desires. Yep, I can do that with other platforms as well.

Uh, in correspondence to #8, I believe that Microsoft Visual Studio specifically prohibits its use except on a Microsoft licensed Operating system. Or if not that, there is something else which I can't remember of the top of my head, but some of Microsoft's products specifically require in their license that you only use them with their operating system. Whether what the license meant was that you could only use them if you had a legitimately licensed copy of the operating system or that you could only use it with their operating system, I'm not sure, but the requirement was still there.

I've probably gone on too long as it is, and I have to stop because someone called me to do something, but there are some of the reasons behind why your comments are either misguided or incorrect, or simply arrogant and possibly unfair attacks on open source.

Paul Robinson