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Open Source Weblog
Does OSI have the right to enforce the use of the term "open source"?
June 21, 2007
I find it interesting that much of the reaction on Slashdot to the OSI cracking down on the use of the term "open source" questions whether the OSI has the right to do so.
"So my license I make up for the hell of it with my terms that still allows anyone to view and audit my code if not approved by OSI means I can't market open source? Even though my code is open?" is one comment.
"Not using an "approved" license doesn't mean that the program is not OS. That only means that the program is not Open Source by the rules of (insert the tyranic powers you like here)" is another.
"So, they're all for open software and open licensing and open everything, but only if it's the kind of open approved by them?" asks another.
It is true to say that the OSI is a self-appointed organisation and it is also true to say that just because a license isn't on the OSI-approved list, does not mean it is not an open source license.
However, as Tiemann pointed out, the whole point of the OSD (and therefore the OSI) is to ensure that people can trust open source because they have a common definition of what it is - and isn't.
To my mind the argument about whether or not OSI should be the organisation that decides whether a license is open source or not is like asking whether Linus Torvalds should be the one who decides what code to include in the Linux kernel.
He is, because he created and maintained it, and the OSI is, because it has created and maintained the OSD.
If you want to claim to be offering open source software it's pretty clear that you have two choices when it comes to licensing:
1. Use an OSI-approved license - and I think you'd have to have very good reasons not to, for ease and understanding if nothing else
Or
2. Ask the OSI to approve a different license you have come up with. Just as SocialText has done.
Of course a decision from the OSI on this would help clear up the confusion related to SugarCRM, SplendidCRM, and others.
Comments
Matthew: Great points. It's true that the OSI has no legal standing to challenge others' use of the term "open source." But that's not the point.
Letter of the law is generally not the ethos of open source. Spirit of the law and the community voice is generally what governs. The OSI has moral authority over the term "open source." Not because anyone voted in the OSI (though I think that would be a good practice), but because it has proven to be a trusted, valuable steward of the term.
The problem with those claiming to be open source without formally submitting their licenses for review (to the OSI or any other body that has legal or moral authority in the industry) is that then open source can easily be skewed in favor of least-common denominator approaches to open source. Whatever I can get away with and scheme with my attorney. Once "open source" is defined by attorneys, the game is over....
My personal belief is that the minute I have to justify something, I'm on shaky ground and what I want to do is probably wrong. Right action generally confirms itself without the need for a lawyer dotting my "i's" and crossing my "t's."
This guy is under the impression that he owns the term "open source". He does not, nor does his company.
His trademark to 'OPEN SOURCE INITIATIVE APPROVED LICENSE' specifically denies ownership claim to the term 'open source' in the wordage.
heres the full text:
Word Mark OPEN SOURCE INITIATIVE APPROVED LICENSE
Goods and Services IC 035. US 100 101 102. G & S: Promotion of computer software which is distributed under agreements meeting certain requirements for distribution and redistribution of the software
Mark Drawing Code (3) DESIGN PLUS WORDS, LETTERS, AND/OR NUMBERS
Design Search Code 14.11.08 - Locks ; Locks and key holes; padlocks; combination locks; Locks, combination; Padlocks
26.01.03 - Circles, incomplete (more than semi-circles); Incomplete circles (more than semi-circles)
26.01.17 - Circles, two concentric; Concentric circles, two; Two concentric circles
26.01.21 - Circles that are totally or partially shaded.
Serial Number 78813707
Filing Date February 13, 2006
Current Filing Basis 1B
Original Filing Basis 1B
Published for Opposition October 10, 2006
Owner (APPLICANT) Open Source Initiative, Inc. PUBLIC BENEFIT CORPORATION CALIFORNIA P.O. Box 460008 San Francisco CALIFORNIA 94146
Attorney of Record Allyn Taylor, Esq.
Disclaimer NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "OPEN SOURCE" and "APPROVED LICENSE" APART FROM THE MARK AS SHOWN
Type of Mark SERVICE MARK
Register PRINCIPAL
Live/Dead Indicator LIVE
It's good to get two comments that demonstrate either side of the argument so well. There is what is legally correct, and what many would consider the correct thing to do.
While there might not be a legal reason why a developer should license his/her software under an OSI-approved license (or asking it to approve his/her license), there are clear advantages to doing so, and to specifically avoid doing so whilst claiming the advantages of being 'open source' does suggest he/she not doing the correct thing.
There's another side as well. Just because someone coined the term "Open Source" does not give them the rights to decide what that means. They would have the right to state what OSI means, but not Open Source. Claiming ownership over the term open source is the same as claiming ownership over the words "Operating System" or "Personal Computer". They are descriptive concepts, as is the term open source.
Linus Torvalds can decide what is called Linux because it is a tangible thing. It is a product (an OS kernel) with a specific use that has been developed according to a certain concept (open source) or principle. So there is a marked difference between Linux as a piece of software compared with open source as a concept.
Now, that's not to say that the OSI cannot make their own definition and people cannot use that definition to ascertain whether or not a license is open source or not. But to make the claim that they are the final authority on what that concept entails would not be accurate. The only authority the OSI has is that which people give them.
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