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Nokia says about Symbian: "We're Open". The New License Shows Otherwise. - Updated
Saturday, April 02 2011 @ 03:16 PM EDT

Nokia has reopened its Symbian page, with a new license on the code, declaring, "We Are Open:"
As we committed when we launched this blog, Nokia is making the latest version of the Symbian platform’s source code available to our platform development partners. We are excited about the completion of the transfer period, during which code delivery from the Symbian Foundation has now been replaced by an open and direct model from Nokia.
I take issue with Nokia's use of the word "open". Let me show you the new license, then we can compare it to the old, and you can be the judge as to whether this is a move to openness or even treading water in place, or as I view it, the exact opposite.

Here's the announcement from last November, where the promise was that the Symbian Foundation would morph into what it is now and that the code would be made available via an "open model":
Following a strategy review, the board of the Symbian Foundation has today decided to transition the role of the non-profit organisation. The foundation will become a legal entity responsible for licensing software and other intellectual property, such as the Symbian trademark. Nokia has committed to make the future development of the Symbian platform available to the ecosystem via an alternative direct and open model.
The "We Are Open" announcement is the fulfillment of this commitment. Here's the Symbian Foundation's "suicide note" now, as I read it. In fact, Google cache still has the Symbian Blog's "We Are Open" page in cache, so if you hurry you can see the way it used to look back in February of 2010. A snip:
As of now, the Symbian platform is completely open source. And it is Symbian^3, the latest version of the platform, which will be soon be feature complete.

Open sourcing a market-leading product in a dynamic, growing business sector is unprecedented. Over 330 million Symbian devices have been shipped worldwide, and it is likely that a further 100 million will ship in 2010 with more than 200 million expected to ship annually from 2011 onwards.

Now the platform is free for anyone to use and to contribute to. It is not only a sophisticated software platform, It is also the focal point of a community. And a lot of the foundation’s effort going forward will be to ensure the community grows and is supported in bringing great innovations to the platform and future devices.

It is a big day for all those people who have worked on preparing the Symbian source code over the past ten months.

Symbian was fully open sourced back in February of 2010. How about now? Did it turn out as you would expect from such a promise of an open model? Here's the license, the new one. Scroll down to "NOKIA SYMBIAN LICENSE VERSION 1.0" at the bottom of the page, and what do we find? There's no patent grant. That jumps off the page immediately. And here's the Copyright License:
Subject to the terms and conditions of this Agreement, Nokia hereby grants to You a personal, non-exclusive, non-transferable, irrevocable (except as set forth in Clause 7.1 and 7.2 below), royalty-free and worldwide license under Copyrights licensable by Nokia to: i) reproduce and modify Source Code Components; ii) reproduce Binary Components and Documentation; iii) use and reproduce Utility Software, and iv) publicly display, distribute and make available (a) the Source Code Components to third parties that have acquired a valid source code license from Nokia; and (b) Utility Software, Binary Components and Source Code Components in binary form to third parties, (c) Documentation in unmodified form in all cases i)-iv) solely as part of the Symbian Platform or for use with the Symbian Platform, under the terms and conditions of this Agreement.

You may have third parties to perform the above rights for you, provided that such third parties agree to be bound by the terms of this Agreement, and You agree to be liable for their activities under this Agreement, as if they were Your employees.

You could do that much back in the day with proprietary UNIX. There is also a no-reverse-engineering clause:
You may not reverse engineer, decompile, or disassemble any of the Binary Components, except to the extent allowed by the mandatory provisions of the applicable law.
And the cherry on top?
4. CONFIDENTIALITY

4.1 Confidentiality Undertaking

Subject to rights granted in Section 3.1 above, the Source Code Components are confidential information of Nokia and/or its licensors (“Confidential Information”). Further, You expressly acknowledge and agree that: i) You shall keep the Confidential Information as strictly confidential and provide limited access to Confidential Information only to those of Your employees and subcontractors for whom such access is necessary for the performance of this Agreement; and ii) You shall not, without the prior written permission of Nokia, disclose the Confidential Information to any third party. The confidentiality obligations of this Section 4 shall remain in force for a period of five (5) years from the date of disclosure of Confidential Information.

4.2 Exceptions

The above confidentiality undertaking shall not apply to Confidential Information, which: (a) is required to be disclosed by mandatory provisions of law, order or regulation of a governmental authority or a court of competent jurisdiction,; or (b) as proven by Your written records, certifiably: i) was publicly available at the time of disclosure or later became publicly available without breach of above confidentiality undertaking, including without limitation any information made lawfully publicly available by the Symbian Foundation; or ii) was disclosed by a third party without breach of any confidentiality undertaking; iii) was in Your possession prior to disclosure of the Confidential Information under this Agreement; or iv) was independently developed by You without use of any Confidential Information.

So. What exactly does Nokia mean by "open"? Worse, the prior Symbian code, still publicly available on Sourceforge was released [PDF] under the Eclipse Public License. Read it and weep when you see how NOT OPEN Symbian now is in comparison. Yes there is a patent grant. And none of the above restrictions. Here's the heart of the grant of rights:
2. GRANT OF RIGHTS

a) Subject to the terms of this Agreement, each Contributor hereby grants Recipient a non-exclusive, worldwide, royalty-free copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, distribute and sublicense the Contribution of such Contributor, if any, and such derivative works, in source code and object code form.

b) Subject to the terms of this Agreement, each Contributor hereby grants Recipient a non-exclusive, worldwide, royalty-free patent license under Licensed Patents to make, use, sell, offer to sell, import and otherwise transfer the Contribution of such Contributor, if any, in source code and object code form. This patent license shall apply to the combination of the Contribution and the Program if, at the time the Contribution is added by the Contributor, such addition of the Contribution causes such combination to be covered by the Licensed Patents. The patent license shall not apply to any other combinations which include the Contribution. No hardware per se is licensed hereunder.

c) Recipient understands that although each Contributor grants the licenses to its Contributions set forth herein, no assurances are provided by any Contributor that the Program does not infringe the patent or other intellectual property rights of any other entity. Each Contributor disclaims any liability to Recipient for claims brought by any other entity based on infringement of intellectual property rights or otherwise. As a condition to exercising the rights and licenses granted hereunder, each Recipient hereby assumes sole responsibility to secure any other intellectual property rights needed, if any. For example, if a third party patent license is required to allow Recipient to distribute the Program, it is Recipient's responsibility to acquire that license before distributing the Program.

d) Each Contributor represents that to its knowledge it has sufficient copyright rights in its Contribution, if any, to grant the copyright license set forth in this Agreement.

Now *that's* open. Here's the list of approved Open Source licenses, where you will find the Eclipse Public License and even a Nokia Open Source License, but not this new Nokia Symbian License. I doubt you ever will, either, given the terms.

Nokia can do whatever it wants with its own stuff. But please don't use the word "open" for this. Partnering with Microsoft may make you start to talk like Microsoft, I guess, and keep promises like Microsoft too. But I don't think this is an accurate use of the word "open".

Update: Nokia now admits Symbian's not Open Source any more:

Not Open Source, just Open for Business

We have received questions about the use of words “open”, “open source”, and about having a registration process before allowing access to the code.

As we have consistently said, Nokia is making the Symbian platform available under an alternative, open and direct model, to enable us to continue working with the remaining Japanese OEMs and the relatively small community of platform development collaborators we are already working with.

Through these pages we are releasing source code to these collaborators, but are not maintaining Symbian as an open source development project. Consistent with this, the Nokia Symbian License is an alternative license which provides an access to Nokia’s additional Symbian development for parties which collaborate with Nokia on the Symbian platform.

Also consistently with the announcement, we are monitoring the registrations and approving the aforementioned platform collaborators only. There is a backlog of registrations which we are processing continuously.

Additionally, Nokia is committed to supporting application developers to leverage the continuing opportunity from Symbian and Qt, they can get that support, including development tools, documentation and other assistance from Forum Nokia.

And Nokia's CEO has an odd view of Open Source:
"The premise of a true open software platform may be where Android started, but it's not where Android is going," says Nokia (NOK) Chief Executive Stephen Elop, a former Microsoft executive who recently inked a deal with his former employer instead of Google. He says he did so in part because he thought he would have more opportunity to innovate atop Microsoft's Windows Phone 7 software.

In the PC realm, Microsoft habituated its partners to expect equal access to new versions of Windows. If anything, says Gartner (IT) analyst Michael Gartenberg, the software giant was equal-opportunity to a fault. "Microsoft often got criticized for treating all partners the same, whether they were doing great work or mediocre work," he says. "Google seems to have no problem with playing favorites."

More innovation with proprietary? He's kidding or deluded. Well, FUD springs eternal, I guess.

As for Microsoft being known for granting equal access, I direct you to the Novell v. Microsoft antitrust action that was just argued on appeal. The entire case was about a lack of equal access. And here's where you can find Microsoft litigation, which I encourage you to peruse. And here's where you can find Microsoft emails, 11 pages of them, some of which talk explicitly about cutting off various companies that were out of favor. All of these links will help you to laugh when you read things like this statement about Microsoft being "equal-access to a fault".

This is why you need a Groklaw, to carefully gather all the pieces of true computer history, so when people talk like this, you have a place to send people to find what really happened.


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