Software Freedom: More Than Copyright

New Forest Reflection

I was surprised last week to see a posting from Michael Tiemann, the President of the Open Source Initiative and a VP at Red Hat. Any posting with a subject of line of "Simon Phipps Was Right" is bound to catch my eye, but this one was especially unexpected because in the original discussion I had thought that Michael was largely right! Michael's posting graciously said:

Simon, I'm beginning to think that you were right and I was wrong. You said a standard's process is a crucial aspect of the standard's product, and a process that is not open cannot be trusted to produce a product that can be considered open. I maintained that I had seen and used many wonderful standards that took absolutely zero input from me, and therefore I didn't see my participation as a necessary prerequisite for assuring quality in the future. I believed that no matter what the process, a standard should be judged by the product. Watching the fallout settle from the [ISO ballot resolution meeting] in Geneva, I'm beginning to think that you were right and I was wrong.

I've been thinking about the posting for a week or so now and I've tried to respond thoughtfully. Here is the response I sent to Michael (still awaiting moderation):

Thank-you, Michael - it's not often I see a posting like this. Actually, when we spoke about this at OSCON I found I agreed with many of your arguments, even if that doesn't show in the on-list discussion. The problem is that standards are orthogonal to open source, and attempting to define them in a way that promotes and protects software freedom may be impossible. It's been said that when we create any system we create the game that plays it. The standards system is fully mature and as such is fully gamed, as the DIS29500 debacle you reference is proving.

Maybe a more productive approach going forward is to try to do for the other kinds of so-called intellectual property what the Open Source Definition (OSD) currently does for copyright licensing. Perhaps we need to rename OSD to "Open Source Copyright Definition" and then work on an "Open Source Patent Definition", so that we can avoid the kind of entrapment that software patents can threaten? And as you know I am convinced we need an "Open Source Trademark Definition" to help us as a community of communities to avoid the IceWeasel problem.

If these are interesting, I'd be pleased to spend time exploring them together. Let me know.

New Definitions

The current Open Source Definition doesn't actually define Open Source - rather, it defines a subset of the requirements that protect software freedom, in this case the copyright license. I actually think renaming it ("Open Source Copyright Definition"?) would be good since there's more to Open Source than just the copyright license. I then suggest we explore creating an "Open Source Patent Definition" and an "Open Source Trademark Definition".

What would be in these two new definitions? Both would need to define what promotes software freedom and how it can be protected. Both would need to be pragmatically principled.

  • An Open Source Patent Definition would do for patents what the OS(C)D does for copyrights. I've posted a lot on this subject before, notably in Protecting Developers from Patents and Ten Reasons The World Needs Patent Covenants, so I'd go mining there for my contributions to the discussion. But it may also be that in addition there needs to be a call for patent law reform, maybe as I outlined in Seven Patent Reforms While We Wait For Nirvana.
  • When it comes to an Open Source Trademark Definition, we would need to similarly define the signs that a developer or user needs to know whether software freedom is being promoted in a trademark policy. I've not written about this yet, but I do believe we need to collectively understand the bounds trademark law places on people who have responsibility for trademarks (read: all developers and open source communities as well as all vendors). We then need to construct a path that promotes software freedom without placing impossible demands on trademark owners to behave in ways that are contrary to their responsibilities.

This is not easy stuff. But I do believe that certain recent events between the open and proprietary software worlds mean that it's time for software freedom fighters to get together and work on these things. I'm ready to work on it. What do you say, Michael?

Comments:

Brilliant post, Simon. I was about to write something up comparing the processes embraced by Creative Commons and compare them to those adopted by the OSI. Frankly, the way Creative Commons explicitly recognizes different use cases is, IMHO, a superior model. While your ideas on different types of OS definitions aren't exactly the same thing as what Creative Commons does, I think it's a step in the right direction of creating a more nuanced, flexible OSI.

Eventually, I would love to see the OSI change a bit to recognize that, while all "open" technologies are not OSI-compliant at the moment, they certainly aren't proprietary in the traditional sense either.

-John Mark
http://tinosc.blogspot.com/

Posted by John Mark Walker on March 17, 2008 at 08:52 AM PDT #

Simon--thanks for the comment on the my blog. I missed it as it came through the queue--to many other spammers have me off my game.

As to creating a new coalition, look for an announcement in the next week or two. We'd love to have you join that team.

Posted by Michael Tiemann on March 17, 2008 at 10:15 AM PDT #

Having a trademark policy that is reasonable is very important when it comes to Free Software.

While the copyright licenses might protect one's ability to use, modify, and redistribute the software, it doens't even touch on trademark rights. It's rather hard for someone who doesn't know how to code to remove all references of a trademark from a piece of software.

As such, all a company would have to do to effecively prevent casual distribution of their GPL licensed product is require that all references to their name be removed prior to any kind of distribution, even verbatim copies.

It seems to me that it's reasonable for someone to restrict the use of their trademark to original versions of the software, as that's what trademarks are supposed to do -- verify the source of the goods. So if the software is modified, it makes sense that the trademarks should be changed.

But verbatim duplication should be protected by an appropriate trademark policy, otherwise the software really isn't Free (as in freedom).

Posted by Tony Lovasco on March 19, 2008 at 08:41 AM PDT #

"Frankly, the way Creative Commons explicitly recognizes different use cases is, IMHO, a superior model."

It is confusing and divisive. CC have recognised this. They have reduced the number of licences that they offer, deprecated those that do not give core freedoms, and explicitly identified those that are Free.

"Eventually, I would love to see the OSI change a bit to recognize that, while all "open" technologies are not OSI-compliant at the moment, they certainly aren't proprietary in the traditional sense either."

OSI should not weaken their standards.

if people want to call something "Open" without actually opening it up that isn't something that OSI owe it to them to support.

Posted by Rob Myers on March 19, 2008 at 07:49 PM PDT #

Thanks for clarifying these things, Simon. I've noticed the changes at MySQL's site also.

Keep fighting for \*development\*, not litigation.

Posted by Roy Schestowitz on March 20, 2008 at 08:15 PM PDT #

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Thoughts and pointers on digital freedoms and technology markets. With a few photos too.

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