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Why, Why, Why OSI? - Updated
Tuesday, August 21 2007 @ 06:23 PM EDT

Matt Asay writes that he can't understand why Microsoft's submission of its Microsoft Permissive License is not being welcomed by one and all with open arms at OSI. So I thought I'd try to explain it.

Here's what he wrote:
I really, really don't understand this. I understand that Microsoft has a history of aggression against open source, as Chris DiBona wrote recently on the Open Source Initiative's (OSI) license-discuss e-mail list. I compete with Microsoft and have for many years. I get that Microsoft has been bad.

But discrimination is explicitly against the OSI's Open Source Definition, as Bill Hilf noted in responding to criticism from Google's Chris DiBona on the e-mail thread...

I understand that Microsoft may be using the OSI's license approval process to its own ends, and potentially ends that may be anti-open source. I'm still not sure, however, that it's appropriate to treat an incoming license from Microsoft any differently than one that comes from Linus Torvalds.

First of all, please note that the OSI's Open Source Definition doesn't say one word about discrimination against entities offering licenses for approval. It requires that an approved *license* not discriminate, not OSI:

5. No Discrimination Against Persons or Groups
The license must not discriminate against any person or group of persons.

6. No Discrimination Against Fields of Endeavor
The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.

See? It doesn't say OSI can't discriminate. It can if it wants to, as far as the OSD is concerned. So Microsoft's representatives and defenders need to stop twisting the definition's words.

So the question becomes, should OSI discriminate? Will a farmer let a fox into the henhouse if the fox puts on a chicken suit?

I think not. Not if he wants to have any chickens. A fox in a chicken suit is still a fox and is still planning to eat his chickens. So only a stupid farmer would reason that a fox in a chicken suit, even one made from real chicken feathers, should now be allowed to reside in his chicken coop with his tasty chickens. Farmers are supposed to consider what foxes are known to do to chickens and what a fox's motives and likely purpose might be in putting on a chicken suit and sweetly pawing on the door to the henhouse.

The farmer's chickens need him to protect them, because chickens don't win battles with foxes. The fox has all the fangs in this picture. So a farmer naturally will think ahead and take steps to try to prevent such battles on his watch. The devious fox may still figure out a way to slip inside and kill some chickens, but at least the farmer wasn't the one who held open the door.

The law distinguishes between monopoly players and everybody else. Is that discrimination or is it acknowledging reality? Is there any reason for OSI to ignore reality factors, some of which Asay enumerated himself? For sure, if there is a Microsoft motive to obtain an OSI-approved license so as to use it against the community, as he posits, that would be an excellent reason not to approve it. Otherwise, the community is likely to decide OSI has become irrelevant to the community because of failure to look out for its best interests.

If in fact OSI suspects that Microsoft's real purpose is to cause harm, since OSI is a California 501(c)(3), can it approve a license it believes will harm the community's interests? The By-laws seem to me to be incompatible with any action OSI knows will cause harm, or is foreseeably likely to cause harm, to the community's interests. I'm just a paralegal, so OSI probably needs to ask its lawyers about that, but as I read it, I can't see how it can ignore a threat that an OSI license might be used against the Open Source community. A number of community members have told OSI they think accepting this license would be harmful to the community's interests, after all. Can OSI ignore that? I honestly don't see how, unless they rewrite the by-laws.

Update: I just thought of another reason to think very seriously about what licenses get approved by OSI:

11 Jan 2005: IBM today pledged open access to key innovations covered by 500 IBM software patents to individuals and groups working on open source software. IBM believes this is the largest pledge ever of patents of any kind and represents a major shift in the way IBM manages and deploys its intellectual property (IP) portfolio. The pledge is applicable to any individual, community, or company working on or using software that meets the Open Source Initiative (OSI) definition of open source software now or in the future.

IBM intends for this pledge to form the basis of an industry-wide "patent commons" in which patents are used to establish a platform for further innovations in areas of broad interest to information technology developers and users.

So approving a Microsoft license brings all that with it. Is that your intent? It's a serious responsibility now on OSI's shoulders to make sure the patent commons stays peaceful and isn't misused. It's not just about a license. There is all that goes with being on the approved list.

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