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Letter Michael Tiemann objects to the distinction between "open" and "free" software we suggested in the article entitled Is your software free, open or litigated?.

Here's Michael's reply in full…

Andrew,

With these statements, you completely mis-characterize Open Source software and the Open Source movement.

By contrast, [protecting users from patent-encumbered software] isn't something that all "open source" advocates have felt worth is going to the stake for. Open source is a superior development methodology, and to assure its success one may need to deal with the devil. Just as some open source companies have felt comfortable linking to, and distributing closed source code, other have been able to license patent-encumbered code without the qualms of free software developers. It's simply a question of expediency.

Not only are you misleading your readers, but it appears to indicate that your own understanding of Open Source is seriously in error. I shall take them one at a time, to help you better understand.

1. The Open Source Definition #1 requires that software be freely distributable and not require the payment of a royalty. Any Patent- encumbered software that can restrict distribution, or that can be taxed with a royalty is not open source. Clause #3 requires that open source software permit the creation of derived works. Software patents are a particular threat to innovation because the practice of a patent in /any/ context, including an innovative derived work, can be restricted by the patent holder. An effective enforcement of a software patent would therefore also likely invalidate the software as open source by clause #3. Clause #6 requires that people be able to use open source software for any purpose. Any patent that conditions how the software may be used (for example, a grant to individual developers to practice patents in private, but with no permission to practice patents in any software they redistribute) is a violation of that clause. Clause #8 requires the license to be general--not specific to a product. Any assertion of a patent against software that's specific to a product, for example, a product shipped by a particular vendor or vendor, would not be open source under this clause.

Now, there is much open source software that provides the freedom to take the software proprietary, as Apple did when they replaced their MacOS operating system with some variant of the Berkeley Unix operating system. But Apple's OSX, as a proprietary product, is not open source. It was once open source, and open source developers continue to make enhancement to the open source versions to Apple's (and presumably their own benefit), but what Apple ships is not open source.

Your statement about the conditions for which open source developers would go to the stake is therefore confusing. Yes, some open source developers are willing to see their work become proprietary, but they, and we, recognize that at that moment, IT'S NO LONGER OPEN SOURCE. And thus it is wrong to characterize any activities post that point as being related to open source.

2. You generously characterize open source software as a superior methodology and then in the same breath, conclude that /therefore/ one must therefore do business with the devil. Would you argue that capitalism is superior to communism, and therefore it is necessary to ignore all environmental, health, safety, and labor concerns in order to ensure that companies can earn record profits? Would you argue that democracy is a superior form of government, and therefore it is necessary to kill millions of people in order to ensure it's supremacy? I struggle to see any valid connection between the superiority of the open source development model and any need for the compromise of the very principles that make it superior.

3. Licensing patent-encumbered software under terms that do not provide the effective freedom to practice those patents fully and freely according to the OSD makes the software not open source, qualms or no qualms. There are companies who have made either outright patent grants or promises not to assert patents against software licensed under reciprocal (and OSI-approved) licensing terms. These grants and promises /are/ effective for open source developers. We will always welcome more. But an exclusive licensing arrangement, meaning a licensing arrangement that excludes anybody in the open source community from enjoying the full benefits that open source has to offer, including the benefit to make better the software they receive without paying an innovation tax to the original provider, is not open source and is not helpful to the open source community.

4. The open source model is not predicated on the expediency of doing business in ways that hurt the community. There are expedient, and pragmatic, and even scientifically sound aspects to what we do, but selling out our principles to a proprietary patron is not any part of that.

Michael Tiemann President, Open Source Initiative

Thanks Michael. ®

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