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A Microsoft Shared Source license was submitted to the Open Source Initiative for official approval as an open-source license—but it wasnt Microsoft who submitted it.
“Someone submitted the Microsoft Community License, one of our Shared Source licenses, to the OSI without our knowledge or approval, but the OSI contacted us and asked if we wanted them to proceed with that,” said Bill Hilf, Microsofts director for platform technology strategy.
“We told them that we did not want to be reactive and needed time to think about it.”
Hilf said he could not remember who had submitted the license to the OSI, saying “it was some name I hadnt seen before.”
But, in an extensive search of the OSIs license-submit archives, eWEEK found that the license was submitted by John Cowan, who is a programmer and blogger in New York and who also volunteers for the Chester County InterLink, a nonprofit organization in Chester County, Pa., that promotes e-literacy and community development using information technologies.
Chester County InterLink was founded in 1993 by former OSI president Eric Raymond and Jordan Seidel.
Raymonds personal Web site also hosts the controversial “Halloween Documents,” a series of confidential Microsoft memoranda on potential strategies related to open-source software and Linux, written in the late 1990s.
In his submission e-mail, Cowan said that “Microsoft is adding new licenses to its Shared Source Initiative, which I believe qualify as open-source licenses. The second of these is a simple permissive license called the Microsoft Community License (MS-CL) … I include the full text in plain form here for convenience in commenting.
“I believe that this license should be approved by OSI even though it is basically similar to more widely used weak-reciprocal licenses, because it is better to encourage Microsoft in particular to release under an OSI-approved license than not–I think it very unlikely that they will go back and adopt some existing license,” the e-mail stated.
In response, Brendan Scott, an open-source advocate and a proponent of customer copyright, who set up OSL (Open Source Law), a “micro boutique” legal practice based in Sydney, Australia, noted that “the process of approval is undermined unless the copyright holder of the license submits to the jurisdiction of the OSI. Exactly who does it is not to the point, but there must be a clear chain of authority from the ultimate copyright holder. I would repeat similar comments in relation to licenses which contain a trade mark as part of their name.”
A Serious Wrongo
Russ Nelson, an OSI board member and president for less than a month, advised giving Microsoft a chance to submit these licenses on its own.
“I think that the general principle should be that authors have preference over third parties when it comes to submitting licenses,” he said.
“Microsoft has said neither that it will nor that it wont submit its two licenses.
“Theyve said that theyre not submitting them at this time. Perhaps they have revisions to make? If so, then approving draft licenses would be a serious wrongo. If you insist, we can take it to the next board meeting, but Im reasonably confident that the boards decision will be to defer approval,” Nelson said in the e-mail string.
Cowan then responded that “I defer to your vast expertise.”
Hilf, when asked to confirm that Cowan had submitted the license to the OSI, told eWEEK that the name “sounds familiar—I think hes the one.”
But OSIs Nelson confirmed to eWEEK in an e-mail exchange from India that Cowan had indeed subitted Microsofts license for approval. Asked if it was common for people to submit licenses for OSI review to which they have no affiliation or connection, he replied, “It happens.”
With regard to the OSIs official submission policy, Nelson said, “We discourage such submissions. If the license could be improved, the third-party submittor cannot change it. Thus, we are presented with a binary approve this or not. Since our primary role is education, this is not a good situation for us to be in.”
Asked if he would like to see Microsoft submit its Shared Source licenses for OSI approval, Nelson questioned whether “the world needs yet another open-source license,” but added, “Weve all read the licenses, and theyre reasonable, succinct and very likely to pass muster, so why not?”
The submission of the license and the subsequent discussion on license-submit came several months after Microsoft said in October 2005 that it was slashing the number of licenses it used for its Shared Source Initiative to just three template, or core, licenses, while at the same time radically shortening and simplifying the text of those licenses.
At that time, many in the open-source community felt that at least one of the new licenses would meet the criteria for OSI approval as an open-source license.
Then, in February 2006, open-source vendor SugarCRM announced plans to launch a distribution of its Sugar Suite 4.5 software under the Microsoft Community License.
Full documentation, including the full text of the Shared Source licenses, can be found here.
But, while Microsoft does not have a problem with one of its licenses being OSI-approved, the challenge is that the OSI has previously positioned itself as “anti-Microsoft,” Hilf said, pointing to the fact that even though the OSI has removed the controversial Halloween Documents from its Web site, a link on the site still points to former OSI president Eric Raymonds Web site, where the documents are available.
“The fact that people can still get to the Halloween Documents via the OSI Web site bothers us. They are old and dated, and a lot has changed since they were written.
“We would like to see the OSI meet us halfway on this to indicate they have moved on from their earlier bias before we are willing to submit our license for approval,” Hilf said.
This means that Microsofts position has not changed from October 2005, when the OSI board met with Jason Matusow, then director of Microsofts Shared Source program, to discuss the matter.
At that time Matusow said that the OSI had “taken positions that have made it more difficult for us to work with them … Whats needed is a neutral environment that is comfortable for all participants in order to build consensus. They have made changes to their board and are looking at building a workable definition of open for open-source licenses and what it means to wrestle with the issues that come with that,” he said.
For his part, Hilf said that having an OSI-approved license was something that appeals to vendors more than customers, adding that “not once has a customer ever told me they wanted or needed this.”
But Diane Peters, the general counsel for the Open Source Development Labs and a member of OSIs License Proliferation committee, told eWEEK in a recent interview when asked about Microsofts feeling that the OSI was still biased against it, that the OSI Web site had been revamped fairly recently.
“Part of that, my understanding is, was in response to the pressure to get rid of this legacy bad blood. We have also come quite far since the time of those documents … Microsoft is a very smart company, and they should embrace this and use it in a way that complements their business model, just like open-source companies get value out of their proprietary add-ons and services,” she said.
“Thats the wave of the future, which will not be all open source or free software or all proprietary,” Peters said.
Editors Note: This story was updated to include comments from the OSIs Russ Nelson.