It's worth noting that the conversation last night (my time) was without me having the benefit of having read the license in question. After some googling, I found a copy of the README, which gives the license as follows:

+--------------------------------------------------------------------------+
|                                                                          |
|  Copyright (C) Rutherford Appleton Laboratory 1990, All Rights Reserved. |
|                                                                          |
|  This source may be copied, distributed, altered or used, but not sold   |
|  for profit or incorporated into a product except under licence from     |
|  the authors.                                                            |
|                                                                          |
|  It is not in the public domain.                                         |
|                                                                          |
|  This notice should remain in the source unaltered, and any changes to   |
|  the source made by persons other than the authors should be marked as   |
|  such.                                                                   |
|                                                                          |
|  Original author:   R T Platon    (RAL CCD)                              |
|                                                                          |
|  Contributors:      C D Osland    (RAL CCD)                              |
|                     A R Mayhook   (RAL CCD)                              |
|                     C D Seelig    (RAL CCD)                              |
|                     N M Hill      (RAL CCD)                              |
|                     K E V Palmen  (RAL CCD)                              |
|                     P L Popovic   (RAL ID)                               |
|                     W K Liu       (RAL ID)                               |
|                     A H Francis   (Page Description Ltd.)                |
|                     W M Lam       (RAL CCD)                              |
|                     A M Reay      (RAL ID)                               |
|                                                                          |
+--------------------------------------------------------------------------+

Based on a quick read, I'd say that that is not OSD-Open.

In our analysis, we can ignore the second clause, "It is not in the public domain"; that's obvious, given that it has a copyright notice at the top, complete with "all rights reserved".

The last clause let's split into two parts to talk about. "This notice should remain in the source unaltered" is a complete statement, even though it appears to be related to the rest of the paragraph; that's just English obfuscating somewhat.

"This notice should remain in the source unaltered." What parts of the OSD apply here? It doesn't speak to the subject matter of any clause of the OSD. We can therefor ignore it in our analysis.

The second half of the last paragraph is "Any changes to the source made by persons other than the authors should be marked as such." How about that?

3, "Derived Works" appears to touch on it -- "The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software." Well, that doesn't forbid modifications and derived works completely, so we're good up to the first comma. It doesn't fail the second part either, since it doesn't require the modifications to carry a license other then the license of the whole.

That clause may actually be in violation of clause 5, "no discrimination against persons or groups". However, the GPL, amongst other licenses that are OSI-Approved, contains a similar clause, so this is clearly not the intent of the OSI. This clause, and the next one, are somewhat unclear as they do not define "discriminate". The rational provides some hints, however, in as much as they refer to "locking anybody out of the processes" -- that is, removing rights from certain people, so as to make it OSD-Open, but only for some people, or for some fields of endeavor.

We've now gotten past paragraphs 2 and 3 of the license. Lets get to the meat, the first paragraph. This reads

This source may be copied, distributed, altered or used, but not sold for profit or incorporated into a product except under licence from the authors.

How about this? What bits of the OSD does this speak to? Well, the answer is most of them, since this grants us the rights that the OSD requires -- unless we're selling it for profit or incorporating it into a product. Now we get to the sticky bits.

Lets first just talk about the restriction against "selling [the source] for profit". This is in violation of clause 1, which says "The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources." Well, we were just restricted from selling the software. Does this include when it's a component of an aggregate software distribution? Well, they placed no such limitation, so we must assume so. One violation of the OSD is enough to make it not OSD-Open, so I'm going to stop here, for now, with my analysis of the license against the OSD.

Mostly. I said last night that the license violates point 6 of the OSD, that is, that it discriminates against the field of endeavor of making a profit.

I'm not sure that I agree with that, doing a more careful (but not exhaustive) reading, and some rethinking. (Remember, my comments last night were without reading the license at all, but only Intrepid's description of the license.)

Anyway, on to my other point -- trademarks. I was wrong in many things I said last night. In particular, the Open Source Initiative does not claim a trademark on "open source". It is perfectly legal to refer to your software as open source when it does not fit the open source definition. I can't say it better then the OSI FAQ already does, so I won't attempt to (under 'How do I use the term "open source"'). You may also be interested in 'How is "open source" related to "free software"'.

Anyway, this is a long post, so thank you for reading all the way to the bottom, and I'm sorry for any errors I promoted last night.

Quick interpretation, after reading these:
The license itself says: This source may be .. not sold for profit .. . You compare this to clause 1 which says: The licence shall not restrict any party from selling or giving away the software ... . Now, I've no idea if the OSD defines 'Software' and 'Source' anywhere extra, but my understanding of that would be that this licence is not in violation (at least here), its not disallowing sale of the software created using its source code, it is merely disallowed the sale of the source itself.

Made sense to me, anyway.

C.

You are right that the license does not even come close to satisfying the OSD. However your reasoning is slightly wrong.

First of all under copyright law, any right given to the copyright holder that is not explicitly permitted by the license is retained by the copyright holder. Therefore the above license retains all copyright restrictions on any binary produced from the source. That immediately fails of items 1, 2, and 4 of the OSD. Incorporating software into product is a normal way of creating derived works, so I'd argue that it fails item 3 as well. Whether or not it fails 1 again because you can't sell source-code depends on how one interprets the phrase "the software". But I guarantee that while the OSI might or might not (probably wouldn't) argue about that, the Debian project would find that utterly clear since they want third parties to be able to sell CDs containing source-code to everything.

It therefore fails the OSD so blatantly as to be laughable. That Intrepid could think otherwise indicates a deep misunderstanding of what "open source" is supposed to mean.

However you have seriously misrepresented what item 6 means. See my post elsewhere in this thread for more on that.

I should add that I am not a lawyer, and this is not legal advice. I'll further add that whoever wrote that license probably wasn't a lawyer either, and probably should consult one before creating any more licenses.

This OSD thing is so terse and incomplete that it has lost my support, at least at the present;

and release all the software I author for my own use / pleasure under either it specifically, the LGPL, or the "Terms of Perl", which we must all be familiar with (which according to user choice may be exactly identical to the GPL, or may be different but still compatible with it -- the "Artistic License").

Abigail, preferring a BSD, MIT, X or TeX style license.

I havn't yet replied to the root node, as it's long and demands a fairly long reply, at least from me. This one, however, I can give a fairly short response to.

Most of the licenses mentioned in this post are not only OSD-Open, but have even been certified by the Open Source Inititive as being OSD-Open. The two exceptions I see are TeX and BSD. I'm not sure if you're refering to the "old BSD" or "new BSD" licenses, and I'm not sure if the entry on their list of approved licenses refers to the old or new BSD license either. TeX is not listed, but since it's distributed by Debian in the main section, they consider it to be Free according to the Debian Free Software Guide, which is almost identical. (The OSD started as a copy of the DFSG, and has /mostly/ had minor wording changes since then -- with the exception of clause 10, "No provision of the license may be predicated on any individual technology or style of interface.")

Oh, also, /under the same terms as perl (itself)?/i is not a listed license, but since both the Artistic License and the GPL are listed, there is no doubt in my mind that "under the same terms as perl" qualifies as OSD-Open. (Note that it would only take one of the two being OSD-Open to make the statement as a whole OSD-Open.)

I won't respond to your musings about what it means to loose his support of the OSD, because I'll do that in response to the main post.

---

All copyrights are relinquished into the public domain unless otherwise stated. I am not an angel. I am capable of error, and err on a fairly regular basis. If I made a mistake, please let me know (such as by replying to this node).

I'm not sure if you're refering to the "old BSD" or "new BSD" licenses, and I'm not sure if the entry on their list of approved licenses refers to the old or new BSD license either.

As far as I know, everyone's talking about the "new" BSD license. In 1999, U of C retroactively expanded the license terms on all of the existing software that was distributed under the old license to fit the terms of the new one, which is OSI Certified.

For documents that attempt to provide ethical or legalistic guidelines it is a very serious matter. Imprecise language or language that leaves too much room for interpretive 'wiggle' is truly a problem.

The OSD isn't a legal document. It's a community-supported guideline. It is based on the Debian Free Software Guidelines, which isn't a legal document, either. It isn't intended to hold up in court, because it doesn't have to. This works because the OSI owns the trademark for the term "Open Source" and gives rights to use the term only to licenses that comply with the OSD. If a company wanted to contend in court that their license qualifies as Open Source when the OSI says it isn't, then a judge would likely say that the OSI owns the trademark and can stop (or allow) whomever they want from using it under trademark law.

Note that the OSD and GNU Free Software guidlines are actually quite similar (both ESR and RMS have stated this in the past), but the OSI is looser with its interpretation.

The software can be used in the most general, non-technical sense . . . contrasting interpretation . . . The software, if it is compliant with the OSD, must be free of license restrictions which forbid its inclusion in a commercial product . . . These two definitions are really greatly at odds.

I don't see how they are at odds. Rather, they are complementary. The OSI considers "use" as both the running of binaries and working with the source code (using it as part of another program or modifying an existing one). It could also mean linking (dynamically or statically) to a library.

So when the OSI says you can't stop commercial software from using Open Source software, they refer to both commerical end-users (those running binaries) and the inclusion of the source code by commerical developers.

1. I agree with your definition of 'use' in Item 6, if its not defined elsewhere. OTOH how likely is anyone to do that anyway? Some programs have 'personal' and 'commercial' versions, whereby the one is free, and the other should be paid for, but none I know of say 'no use by commercial users' (what are commercial users, anyway?) - But maybe Im wrong, and there are such things.

2. I quite disagree with your definition of 'Redistribute', why should that have anything to do with source code, and nothing to do with the actual software? Redistribute means to give to other people ('spread to other areas', says the m-w). Nowhere does the clause mention 'source', it says 'programs' and 'software'. And people *do* talk about redistributing MS software, thats what happens with OEM stuff, gets redistributed with the computers its installed on.

(I'll skip the rest, and note for the record that I havent read (the rest of) the OSD either.)

C.

Some programs have 'personal' and 'commercial' versions, whereby the one is free, and the other should be paid for, but none I know of say 'no use by commercial users' (what are commercial users, anyway?) - But maybe Im wrong, and there are such things.

Actually, that's a pretty common restriction. Off the top of my head, Netscape 3 and the old version of StarOffice (when it was still owned by StarDivision) were both free for non-commercial use (e.g., home use or in education, government, ...), but to use it in a business you needed to buy a license.

njudge (a derivative of the Ken Lowe adjudicator) is an example of software that's free for non-commercial use, but commercial use is utterly prohibited and licenses for that are just plain not available. (This is due to an informal agreement between the hobbyist community that maintains it and Avalon Hill / Hasbro, who own the rights to the game that the software implements.)

Read more... (620 Bytes)

Both of these kinds of restrictions disqualify the software from meeting with OSD approval or being hosted on OSDN.

---

;$;=sub{$/};@;=map{my($a,$b)=($_,$;);$;=sub{$a.$b->()}} split//,".rekcah lreP rehtona tsuJ";$\=$;[-1]->();print

A commerical user is generally understood to be someone for whom the primary use of the software is in the furtherance of generating profit.

This is different from the use of software by not-for-profit organizations or home users. For the latter, there's no money at all. For the former, there is no profit motive.

Please note that these are the understandings (as I know them) in the US. I think the EU and the US generally track together in this, but I'm not positive.

------
We are the carpenters and bricklayers of the Information Age.

Please remember that I'm crufty and crochety. All opinions are purely mine and all code is untested, unless otherwise specified.

You are right that the structure of the document is suboptimal. That is because it was not originally intended as a legal document. It was a written guideline for the Debian project, intended to be understood by people deeply involved in that project.

The wording of item 1 of the OSD is complicated by the fact that they were trying to make sure that Perl's Artistic license was covered. Item 5 of the Artistic license reads,

5. You may charge a reasonable copying fee for any distribution of this Package. You may charge any fee you choose for support of this Package. You may not charge a fee for this Package itself. However, you may distribute this Package in aggregate with other (possibly commercial) programs as part of a larger (possibly commercial) software distribution provided that you do not advertise this Package as a product of your own. You may embed this Package's interpreter within an executable of yours (by linking); this shall be construed as a mere form of aggregation, provided that the complete Standard Version of the interpreter is so embedded.

The license shall not restrict any party from selling or giving away the software. The license shall not require a royalty or other fee for such sale.

Your pleading that they mean something special by distribution misses the mark, and will singularly fail to convince anyone at the OSI. Your pleading further fails because common usage of the words "distribution" and "redistribution" are exactly opposite from what you say. If you don't believe me, I invite you to skim this Microsoft document for the word "redistribution".

In case you think that there is any lack of clarity, read the first sentence of item 2 of the OSD. The program must include source code, and must allow distribution in source code as well as compiled form. Item 4 is also clear on this, The license must explicitly permit distribution of software built from modified source code. What do you think that "built from" means?

Moving on, I have you idea whether you correctly portrayed what theorbtwo said about item 6 of the OSD. But your description of what it means seems correct to me. The point this to block people from doing things like produce software for editing video, and say that it is OK to use it for anything other than producing movies and television shows. Allowing it to be included in a commercial product (like Xanadros) is already covered well enough by item 1.

And addressing your summary, I doubt that anyone particularly cares whether any single hacker cares to support the OSD. Whether or not you choose to recognize the fact, a community has developed around the OSD. If you don't wish to play by those rules, you are free to pick up your marbles and move elsewhere with whoever you can convince to come with you. (Which is, after all, how the Debian project, and then later the OSI got going.)

Geez guys, since when did Perlmonks morph into debian-legal? This thread is starting to get scary.

My own issues with the OSD are that they confuse Open with Free. Open means (to me) that the code can be inspected and modified. Free (as in beer) means (again, to me) that you are not charged a fee for it. Free (as in speech) means (still, to me) that no one can stop you from Saying it (ie, redistributing). Section 1 is incompatible with Open (my definition) code that is not Free (costs money/not redistributable).

For myself, I choose licenses on my own work as I see fit, often from the Creative Commons license generator. Some of those are compatible with the OSD, some are not. If it won't meet SourceForge's terms of service ... announce it on Freshmeat instead, which provides less, but restricts less.

BTW, the company for which I work is Open but not Free by the above definitions. So this isn't just Ivory Tower semantics, this is a thriving business model.

I won't comment on the actual licensing discussion, that appears to have been done to death. In terms of GNU though; I've never heard that the FSD is more "indoctrined" or "rigid" than the OSD. The OSD is directly descended from the GNU/FSF outline, along the lines of FSD -> DFSG -> OSD (where -> indicates Bruce Perens at work). But, the DFSG is vastly more complex than the free software definition, and actually encompasses a *different* meaning of "software" (at least, that is current opinion).

It's not the wording, nor the "does this pass", that is meaningful - it's the spirit. One of the reasons the FSD is so simple is because it's meant to be applied with common sense. You can argue that the GPL fails the DFSG because programming proprietary software is a field of endeavor; most people wouldn't argue that it's non-free though.