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How NOT to Push a New Open Source License, Part 1

How NOT to Push a New Open Source License, Part 1

Bruce Perens wrote several times that he had to check with the lawyers to see what the various terms of his open source covenant really mean. If this license is so complicated that he doesn't understand it, shouldn't it be fixed? And why would he be publicly advocating others use a license he doesn't fully understand? This doesn't inspire confidence.

Bruce Perens recently introduced what he calls a "Covenant" open source license on behalf of Lexis-Nexis, owned by Reed Elsevier (readers may know them better as "the scientific journal paywall people"), for one of Lexis-Nexis' internal projects.

It didn't take long for readers on both slashdot and lwn to rip it apart. Of particular concern was the requirement that contributors assign their copyrights to Lexis-Nexis so that Lexis-Nexis would gain the exclusive right to commercialize the code. Contributors would only be able to use their own code under an AGPL license.

When I proposed that it would protect the authors' rights more if the author

  1. kept his or her copyright, or
  2. granted a dual license right to the company that terminates if the conditions are not respected,

Perens claimed,

"In general, companies want to be able to enforce the copyright of the entire product," and "the risk and legal load for the company are appreciably higher than what I have proposed."

The Heavy Burden of Licensing

I pointed out to him that this simply isn't true. Most commercial software companies don't own the copyrights to all the components in the products they sell. For everything from software written in Java or using Windows libraries to media players using h.264 decoders, quicktime libraries, or other code licensed from third parties, licensing -- not copyright assignment -- is the norm.

Businesses that take out a license instead of getting copyright assigned to them also have legal recourse against the licensor if any of the licensed code is found to be infringing. Microsoft has gone to court many times, and paid plenty of judgments, to protect its users and licensees. Perens' arguments are ill-informed at best.

In a follow-up, he also claimed that

"the added burden on L-N to try to manage all the licenses would probably make it easier to forgo open sourcing their codebase."
My first thought was "Wow, maybe the BSA (Business Software Alliance) should knock on their doors to see if all their Windows software is properly licensed." Instead, I pointed out that parent company Reed Elsevier is a US$9 billion dollar business that derives the bulk of its earnings from managing data, copyrights and licenses. It can certainly manage a few more license grants from contributors.

Checking With the Lawyers

Readers were also concerned that the whole "covenant" was too vague on many points, as well as being lopsided in favor of Lexis-Nexis. Perens' response to lwn reader lutchann revealed why:

"When you are working with a company as large as that (LN is a big division of huge Elsevier) with as many separate stake-holders in legal, management, etc., it's always a negotiation. That's what I could get."
Sad.

It didn't help his case that Perens was also telling two different stories about the effects of copyright assignment -- one to readers of lwn, another to slashdot. Two hours after he wrote lwn poster iabervon to say

"this isn't a problem because of a key feature of copyright law: A developer is always free to grant their own work to others under his/her own terms. The covenant doesn't make you promise not to do so,"
... he wrote on slashdot,
"I agree that licensing your contribution back to you is desirable. I'll include that in the feedback I'm sending them."
Perens is apparently a bit confused as to whether developers would need a license back. The answer is yes, because copyright doesn't work the way he pretended it does. Original developers are not free to continue to grant rights to their work after they've assigned their rights to someone else. That's the key point of a copyright assignment.

This probably explains why Perens wrote several times that he had to check with the lawyers to see what the various terms of the covenant really mean. It's becoming painfully obvious that he doesn't really understand "his own" license.

If this license is so complicated that he doesn't understand it, shouldn't it be fixed? And why would he be publicly advocating others use a license he doesn't fully understand? This doesn't inspire confidence.

Hand Over Those Assets

In reality, it is obvious that the covenant is not a meeting of the minds between equals, but a deal drafted by Lexis-Nexis to take as much and give back as little as possible. The "snatch-and-grab" was revealed in a follow-up to slashdot poster Roger W Moore, who wrote:

"I fail to understand the need to assign copyright. Surely the developer can just give HPCC a license to the code which includes the right to relicense the code under any commercial license they wish so long as they continue to support and release an open source version. Call this the HPCC Turkish Delight license and then just say that you are releasing your code under this license instead of GPL/.... By assigning copyright HPCC could use the code in a different, closed source product without compensating the developer in anyway." (emphasis added)
Perens pretty much admitted it when he replied,
"In building a balance that will motivate multiple parties to participate, you have to consider all of their needs. In the case of HPCC's needs, this allows them to continue to own their entire product, and to list their entire product as an asset." (emphasis added)
The real reason for demanding copyright assignment instead of a license is to add to its copyright portfolio so it can list those additional copyrights as business assets, and also open up the ability to license the assigned copyrights individually outside of the project.

Think of it -- how would you react if your neighbor asked for your blender for a party?

Neighbor: I'm having a party. I need your blender.
You:        Sure, you can borrow it.
Neighbor: No, you don't understand -- I want you to give it to me                permanently.
You:        Why would I do that?
Neighbor: Because I'm having a big party and I'm going to make lots of $$$.
You:        So just borrow it. You don't need to keep it forever.
Neighbor: But if I don't own it outright, it will prevent me from having lots of                parties and making lots of money!
You:        ???
Neighbor: Don't worry -- I'll let you borrow it back...
You:        Gee, you're so generous.
Neighbor: -- but only for your own personal use. You can't use it with guests                or to throw parties or make money with it.
You:        Enough! You're giving me a headache. Just. Go. Away.

Open Source Magic

Does Perens really believe this is a great deal? What's good for the goose is good for the gander, so I made him the same offer that his "covenant" provides:

"assign ME your copyrights and I'll give you a grant-back to use all the copyrights in the pool under the AGPLv3. I'll go one further than Loopy-Noopy -- I'll even give you a grant-back to use them under a separate GPLv2 or later license, so you can contribute to projects like Linux, which is GPLv2 only. What could possibly go wrong?"
He hasn't yet taken me up on my oh-so-generous offer. I guess when the shoe is on the other foot, it doesn't fit so well...

There are still some people who think that slapping "open source" on something will magically attract coders as sure as manure attracts flies. It doesn't, but freetards won't accept that. Coders that work on the sort of projects that Perens is proposing cost six figures a head. A one-sided "covenant" won't interest them, and it just inflames everyone else.

This whole "covenant" shows disrespect for both the work and the rights of authors. Add to that the way that each iteration of the GPL adds more restrictions, and maybe it's time for yet another license -- but Bruce Perens' covenant isn't it.

And now for something completely different...

Part 2: The Respect The Programmer License (RPL) Version 0.3


Barbara Hudson's daughters and her dogs are a large part of who she is. As for computers, she's been writing code for longer than she really wants to admit. Now that she's returned to independent development, her current focus is on creating simpler and more secure code libraries. Her dream project? Creating the ultimate chess program. You can contact her at barbara.hudson@milsecure.org.


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