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Open Channel Software removes "Open Source" claim

OCS's business model is to host and market software from scientific and research institutions, providing support and service for users. Yesterday, after discussions with NewsForge, Open Channel president John Kennedy agreed that the phrase was misleading and changed the motto on the site to: "Publishing Software From Academic & Research Institutions."

Questions about the use of the phrase "Open Source" arose after the story at Newsbytes was picked up by Slashdot (also owned by OSDN). "It's my experience that some companies use the term 'Open Source' very loosely in connection with new licenses, often as more of a marketing term than a term intended to indicate compliance with the OSI guidelines," says Laura Majerus, an attorney specializing in intellectual property issues for Fenwick & West, LLP. "Sometimes this is done with the best of intentions, and companies simply wish to signal to their customers that they are somehow sympathetic with what they understand to be the goals of the open source movement, even though they are not always clear as to what exactly those goals are."

And it is not illegal to use the phrase "Open Source" to describe any software, says Rod Dixon, a visiting assistant professor of law at Rutgers University Law School. " As far as I can tell, the term or phrase 'open source' is generic, and often used as a marketing phrase in much the same manner as "diet soda" is used. I cannot imagine what the legal basis would be to bring a fraud claim on the use the term 'open source.'"

But it still isn't a great idea to label just any software application as Open Source, according to a number of posters on the license-discuss mailing list. "Many people might take it that the organization is misrepresenting its licensing terms, is free-riding the OSI's OSD definition, or is just plain lacking in judgement," says Karsten Self, an experienced programmer and network administrator who is a frequent participant in license discussions.

A random check of the NASA software collection showed that, while source code is available, the licenses don't square with the Open Source definition.

For example, NASA's ACARA program comes up first on a page of results for a search on "nasa." ACARA "analyzes availability, life cycle cost, and resource scheduling," according to the description. The cost for the source code is $200, and the documentation goes for $29.

ACARA's license appears to run afoul of the Open Source Definition on at least three points. To illustrate this, each violated point of the Open Source Definition is listed below, along with the offending portion of the ACARA license (in italics):

• Open Source Definition - 1. Free Redistribution - 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. The license shall not require a royalty or other fee for such sale.

  ACARA License - 3a: "RECIPIENT agrees not to sell, offer for sale, bundle Software with other software or equipment in a sales activity or otherwise market the Software or Modified Software without written permission of OCS."

• Open Source Definition - 3. Derived Works - 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.

  ACARA License - 5: "RECIPIENT may not distribute or otherwise grant rights to another or others with respect to the Software or Modifications. Any such attempt or use for public or commercial purposes will automatically terminate the rights granted under this License."

• Open Source Definition - 4. Integrity of The Author's Source Code - The license may restrict source-code from being distributed in modified form only if the license allows the distribution of "patch files" with the source code for the purpose of modifying the program at build time. The license must explicitly permit distribution of software built from modified source code. The license may require derived works to carry a different name or version number from the original software.

  ACARA License - Points 3 and 5 of the ACARA License appear to violate the Open Source Definition here as well.

• Open Source Definition - 5. No Discrimination Against Persons or Groups - The license must not discriminate against any person or group of persons.

  ACARA License - 10: "... The Software is intended for domestic use and distribution only and shall not be made available to anyone outside of the United States without the written agreement of OCS."

• Open Source Definition - 6. No Discrimination Against Fields of Endeavor - The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.

  ACARA License - 2: "Specifically regarding the right to reproduce, RECIPIENT may copy the Software only for non-commercial, private internal purposes to the extent necessary to exercise the other specific non-exclusive rights identified above."

There is also some question as to whether software that is created by or for a government agency can be copyrighted or restricted in distribution. Other government software at the site is released to the public domain, such as Spitfire, an intrusion detection environment developed for the government by MITRE corporation.

ACARA is not the only NASA program with a non-open source license. Keep clicking down the list and you'll find identical terms for each of the CLASSICS. In fact, each copy of the agreement appears to be a contract between the user and Open Channel Software, according to the first paragraph. However, according to Kennedy, the license language was a requirement placed upon them by the National Technology Transfer Center, the agency that previously had control over the NASA CLASSICS collection.

Doug Curry, who is responsible for developing the original concept of OCS and coordinates the relationship between OCS and the NTTC, says that NASA opened its license terms considerably over the original language. "Working with the Government one is met with hundreds of reasons not to do something, and very few reasons to try a different approach. I would give NASA a lot of credit because they were able to help us construct our current license for the NASA software which is much less restrictive than the original license we were instructed to use," he says. "While we would enjoy releasing the software under a less restrictive license, doing so on our own would violate the terms of our agreement with NTTC and NASA. All license changes must be approved. Additionally, NASA restricts our software distribution to the United States. Since the events of September 11th, the requirements to distribute software outside the US have increased ten fold."

Kennedy says that he has encouraged ACARA's owner to "go Open Source" with the program. "ACARA has had over 250 hits, but no downloads," he says, attributing the apparent lack of interest to the high cost of the program, the proceeds from which are distributed to the author, less a fee charged by OCS. "The NASA developers are not in the mainstream of what would be the hacker community."

Kennedy also says that, although OCS agrees with the Open Source philosophy, the company will not refuse to host and support software that is not Open Source. According to OCS's licensing policy page, "While the software we make available is released under several different licenses, OCF is license-neutral. Each individual institution for which we act as a distribution vehicle can place license requirements or other restrictions upon their software. Where possible, we encourage the developer to release under an open source model and remain active as the moderator of the project." The page goes on to describe OCS's definition of Open Source and free software.

Additionally, OCS's contributor FAQ page states, "As a software developer, you know the value of publishing your work in an open source environment. Likewise, you can appreciate how much effort it takes to develop and support an open source web site, especially if your release has met with wide acceptance and you have a large and growing community of users and contributors. We believe we have an alternative to publishing your program on your own that will actually enhance the value of your offering to your users and help to build a strong community."

Most of the software collected on the Open Channel Software site is from the NASA deal, but sprinkled within are several selections from the University of Chicago computer science department, where Open Channel has its roots.