For Approval: Common Precertification Development and Distribution License

[Marc Whipple]

To the license-discuss list:

We would like to propose a new Open Source license called the Common Precertification Development and Distribution License ("CPDDL") for certification. It is based on the Common Development and Distribution License ("CDDL") of which Sun Microsystems is the license steward. It is our hope that the CPDDL will encourage the development of Open Source software useful in commercial applications, even in highly regulated or sophisticated industries such as gaming, finance, or equipment control systems development, especially for software which is destined for eventual certification by independent certification or licensing authorities. Currently, implementing standards and protocols, especially new and advanced protocols, under Open Source terms is very difficult to do in some industries, especially highly regulated ones. This is because there is little incentive to participate or to allow employees to participate in Open Source development projects which are perceived to grant competitive advantages to competitors, especially in industries where involved certification proceedings are the norm. If an Open Source-derived piece of software obtains certification, a competitor could then incorporate it into their own products and, depending on the industry, either immediately reap the benefit of the certification or obtain a high degree of confidence that the product would be certified with little or no resistance.

In order to provide incentives for such development either by commercial entities or by the employees of such entities with their approval and consent, the CPDDL provides that commercial usage rights for software developed under its terms are limited to active contributors during the development process and for a limited time thereafter. Non-commercial use is allowed under very broad terms at all times. The changes to the CDDL all relate to this goal and incentive concept: Commercial Use is defined and restricted during development to active contributors, active contribution is defined, and the terms under which covered software may be certified and thereafter be covered by a less restrictive Open Source licensing agreement (the GNU Lesser Public License) are set forth.

Covered Software (software developed under the CPDDL) may be used at any time in combination with other Open Source software under any license which does not directly conflict with its terms. We are not aware of any license which is entirely incompatible with the CPDDL, although any license which claims to grant unrestricted Commercial Use rights to Covered Software which has not yet been certified would create a conflict. In such a case, the terms of the CPDDL are quite clear in that Commercial Use rights are not the contributor's to give and therefore any attempt to incorporate Covered Software into a broader and less restricted license would fail. The terms of the CPDDL would take precedence for derivative or combined works with regard to Commercial Use during the restriction period. After the restriction period, the extremely broad terms of the GNU Lesser Public License would apply.

To our knowledge, such a combination of temporary restriction and license-term shifting has not been incorporated into an Open Source license before. We are aware that this is a departure from customary Open Source licensing techniques, and we ask that you consider our goals and our attempt to attain them while maintaining the spirit of Open Source in a highly regulated, highly competitive environment with open minds. We are prepared to defend our aim, but we are also prepared to accept comment, criticism, and sincere attempts to improve our method of achieving it. We welcome, and would be grateful for, your input.

You will find the CPDDL attached to this message as a plain-text file. Anyone who would like a Word, HTML or PDF version of the document is invited to email me directly and I will be glad to forward one. Thank you for your attention.

Very truly yours,

Marc Whipple

-><-
 
Marc Whipple
General Counsel
Incredible Technologies, Inc.
3333 North Kennicott Avenue
Arlington Heights, IL 60004
V: 847-870-7027
F: 847-870-0120 (Please advise before transmitting sensitive documents.)
 
The contents of this message are (C) Incredible Technologies, Inc. and are confidential unless otherwise indicated. All content may be subject to confidentiality agreements, trade secret laws, the attorney/client privilege, and/or the US Economic Espionage Act. All rights reserved: do not copy or distribute without permission.


COMMON PRECERTIFICATION DEVELOPMENT AND DISTRIBUTION
LICENSE (CPDDL) Version 1.0
* 1. Definitions.

o 1.1 Commercial Use means a use of Covered Software in a product offered for
sale, lease, or otherwise for compensation, including uses where Covered
Software is not itself exchanged for compensation but services related to Covered
Software, including but not limited to support, warranty, indemnity, analysis of
output, or any other commercial activity related to the use of Covered Software,
are exchanged for compensation. The solicitation or acceptance of donations per
se does not create a Commercial Use, but if donations or any other form of
compensation are required to unlock features or otherwise enhance the
functionality of Covered Software, a Commercial Use has been made.
o 1.2. Contributor means each individual or entity that creates or contributes to the
creation of Modifications.
o 1.3. Contributor Version means the combination of the Original Software, prior
Modifications used by a Contributor (if any), and the Modifications made by that
particular Contributor.
o 1.4. Covered Software means (a) the Original Software, or (b) Modifications, or
(c) the combination of files containing Original Software with files containing
Modifications, in each case including portions thereof.
o 1.5. Executable means the Covered Software in any form other than Source
Code.
o 1.6. Initial Developer means the individual or entity that first makes Original
Software available under this License.
o 1.7. Larger Work means a work which combines Covered Software or portions
thereof with code not governed by the terms of this License.
o 1.8 Library means a central means of collecting Source Code as well as
communications relating thereto which is accessible by Contributors and to the
public at large as required to participate in Modifications.
o 1.9 Library Monitor means a person, persons, or entity, or any combination
thereof, who reviews Modifications for minimum standards of functionality and
compliance with generally accepted programming principles before they are
added to the Library. The Initial Developer will typically be the first Library
Monitor..
o 1.10. License means this document.
o 1.11. Licensable means having the right to grant, to the maximum extent
possible, whether at the time of the initial grant or subsequently acquired, any and
all of the rights conveyed herein.
o 1.12. Modifications means the Source Code and Executable form of any of the
following:
? A. Any file that results from an addition to, deletion from or modification
of the contents of a file containing Original Software or previous
Modifications;
? B. Any new file that contains any part of the Original Software or previous
Modification; or
? C. Any new file that is contributed or otherwise made available under the
terms of this License.
o 1.13. Original Software means the Source Code and Executable form of
computer software code that is originally released under this License.
o 1.14. Patent Claims means any patent claim(s), now owned or hereafter acquired,
including without limitation, method, process, and apparatus claims, in any patent
Licensable by grantor.
o 1.15. Source Code means (a) the common form of computer software code in
which modifications are made and (b) associated documentation included in or
with such code.
o 1.16. You (or Your) means an individual or a legal entity exercising rights under,
and complying with all of the terms of, this License. For legal entities, You
includes any entity which controls, is controlled by, or is under common control
with You. For purposes of this definition, control means (a) the power, direct or
indirect, to cause the direction or management of such entity, whether by contract
or otherwise, or (b) ownership of more than fifty percent (50%) of the outstanding
shares or beneficial ownership of such entity.
* 2. License Grants.

o 2.1. The Initial Developer Grant.
Conditioned upon Your compliance with Section 3.1 below and subject to third
party intellectual property claims, the Initial Developer hereby grants You a
world-wide, royalty-free, non-exclusive license:
? (a) under intellectual property rights (other than patent or trademark)
Licensable by Initial Developer, to use, reproduce, modify, display,
perform, sublicense and distribute the Original Software (or portions
thereof), as voluntarily submitted to a publicly-accessible Library, with or
without Modifications, and/or as part of a Larger Work other than in
Commercial Use; and
? (b) under Patent Claims infringed by the making or using of Original
Software, to make, have made, use, practice, and otherwise utilize, other
than in Commercial Use, the Original Software (or portions thereof).
? (c) The licenses granted in Sections 2.1(a) and (b) are effective on the
date Initial Developer first distributes or otherwise makes the Original
Software available to a third party under the terms of this License.
? (d) Notwithstanding Section 2.1(b) above, no patent license is granted:
(1) for code that You delete from the Original Software, or (2) for
infringements caused by: (i) the modification of the Original Software, or
(ii) the combination of the Original Software with other software or
devices.
? (e) The license granted under this Section shall not allow any Commercial
Use of the Original Software, or portions thereof, other than by a
Contributor who has submitted at least one (1) Modification which has
been accepted by an authorized Source Code Library Monitor. Any
Contributor who has submitted at least one (1) Modification which has
been accepted by an authorized Source Code Library Monitor may use the
Original Software, or portions thereof, in Commercial Use subject to the
other terms of this License.

o 2.2. Contributor Grant.
Conditioned upon Your compliance with Section 3.1 below and subject to third
party intellectual property claims, each Contributor hereby grants You a world-
wide, royalty-free, non-exclusive license:
? (a) under intellectual property rights (other than patent or trademark)
Licensable by Contributor to use, reproduce, modify, display, perform,
sublicense and distribute the Modifications created by such Contributor
(or portions thereof) as voluntarily submitted to a publicly-accessible
Library, either on an unmodified basis, with other Modifications, as
Covered Software and/or as part of a Larger Work; and
? (b) under Patent Claims infringed by the making, using, or selling of
Modifications made by that Contributor either alone and/or in combination
with its Contributor Version (or portions of such combination), to make,
use, have made, and/or otherwise dispose of other than in Commercial
Use: (1) Modifications made by that Contributor (or portions thereof); and
(2) the combination of Modifications made by that Contributor with its
Contributor Version (or portions of such combination).
? (c) The licenses granted in Sections 2.2(a) and 2.2(b) are effective on the
date Contributor first distributes or otherwise makes the Modifications
available to a third party.
? (d) Notwithstanding Section 2.2(b) above, no patent license is granted:
(1) for any code that Contributor has deleted from the Contributor
Version; (2) for infringements caused by: (i) third party modifications of
Contributor Version, or (ii) the combination of Modifications made by that
Contributor with other software (except as part of the Contributor Version)
or other devices; or (3) under Patent Claims infringed by Covered
Software in the absence of Modifications made by that Contributor.
? (e) The license granted under this Section shall not allow any Commercial
Use of any Contributor Version, or portions thereof, other than by a
Contributor who has submitted at least one (1) Modification which has
been accepted by an authorized Source Code Library Monitor at the
Library to which the Original Software was voluntarily submitted. Any
Contributor who has submitted at least one (1) Modification which has
been accepted by an authorized Source Code Library Monitor at such
original Library may use a Contributor Version, or portions thereof, in
Commercial Use subject to the other terms of this License.

* 3. Distribution Obligations.

o 3.1. Availability of Source Code.
Any Covered Software that You distribute or otherwise make available in
Executable form must also be made available in Source Code form and that
Source Code form must be distributed only under the terms of this License. You
must include a copy of this License with every copy of the Source Code form of
the Covered Software You distribute or otherwise make available. You must
inform recipients of any such Covered Software in Executable form as to how
they can obtain such Covered Software in Source Code form in a reasonable
manner on or through a medium customarily used for software exchange.
o 3.2. Modifications.
The Modifications that You create or to which You contribute are governed by
the terms of this License. You represent that You believe Your Modifications are
Your original creation(s) and/or You have sufficient rights to grant the rights
conveyed by this License.
o 3.3. Required Notices.
You must include a notice in each of Your Modifications that identifies You as
the Contributor of the Modification. You may not remove or alter any copyright,
patent or trademark notices contained within the Covered Software, or any notices
of licensing or any descriptive text giving attribution to any Contributor or the
Initial Developer.
o 3.4. Application of Additional Terms.
You may not offer or impose any terms on any Covered Software in Source Code
form that alters or restricts the applicable version of this License or the recipients
rights hereunder. You may choose to offer, and to charge a fee for, warranty,
support, indemnity or liability obligations to one or more recipients of Covered
Software. However, you may do so only on Your own behalf, and not on behalf of
the Initial Developer or any Contributor. You must make it absolutely clear that
any such warranty, support, indemnity or liability obligation is offered by You
alone, and You hereby agree to indemnify the Initial Developer and every
Contributor for any liability incurred by the Initial Developer or such Contributor
as a result of warranty, support, indemnity or liability terms You offer.
o 3.5. Distribution of Executable Versions.
You may distribute the Executable form of the Covered Software under the terms
of this License or under the terms of a license of Your choice, which may contain
terms different from this License, provided that You are in compliance with the
terms of this License and that the license for the Executable form does not attempt
to limit or alter the recipients rights in the Source Code form from the rights set
forth in this License, and further provided that the Executable version is not used
in Commercial Use unless You are a Contributor who has submitted at least one
(1) approved Modification to the Library where the Original Software was
originally submitted by the Initial Developer. If You distribute the Covered
Software in Executable form under a different license, You must make it
absolutely clear that any terms which differ from this License are offered by You
alone, not by the Initial Developer or Contributor. You hereby agree to indemnify
the Initial Developer and every Contributor for any liability incurred by the Initial
Developer or such Contributor as a result of any such terms You offer.
o 3.6. Larger Works.
You may create a Larger Work by combining Covered Software with other code
not governed by the terms of this License and distribute the Larger Work as a
single product. In such a case, You must make sure the requirements of this
License are fulfilled for the Covered Software, including that such Larger Work is
not used in Commercial Use unless You would be eligible to use Covered
Software for Commercial Use under the terms of this License.

* 4. Versions of the License.

o 4.1. New Versions.
Incredible Technologies, Inc. is the initial license steward and may publish
revised and/or new versions of this License from time to time. Each version will
be given a distinguishing version number. Except as provided in Section 4.3, no
one other than the license steward has the right to modify this License.
o 4.2. Effect of New Versions.
You may always continue to use, distribute or otherwise make the Covered
Software available under the terms of the version of the License under which You
originally received the Covered Software. If the Initial Developer includes a
notice in the Original Software prohibiting it from being distributed or otherwise
made available under any subsequent version of the License, You must distribute
and make the Covered Software available under the terms of the version of the
License under which You originally received the Covered Software. Otherwise,
You may also choose to use, distribute or otherwise make the Covered Software
available under the terms of any subsequent version of the License published by
the license steward.
o 4.3. Modified Versions.
When You are an Initial Developer and You want to create a new license for Your
Original Software, You may create and use a modified version of this License if
You: (a) rename the license and remove any references to the name of the license
steward (except to note that the license differs from this License); and
(b) otherwise make it clear that the license contains terms which differ from this
License.
4.4 Difference from Common Development and Distribution License (CDDL)
This License is based on the Common Development and Distribution License
(“CDDL,”) for which Sun Microsystems, Inc., was the license steward at the time
of its creation. It contains materially different terms from the CDDL and potential
licensees and licensors should review it carefully before making use of it.
* 5. DISCLAIMER OF WARRANTY.
COVERED SOFTWARE IS PROVIDED UNDER THIS LICENSE ON AN AS IS
BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES THAT THE
COVERED SOFTWARE IS FREE OF DEFECTS, MERCHANTABLE, FIT FOR A
PARTICULAR PURPOSE OR NON-INFRINGING. THE ENTIRE RISK AS TO THE
QUALITY AND PERFORMANCE OF THE COVERED SOFTWARE IS WITH YOU.
SHOULD ANY COVERED SOFTWARE PROVE DEFECTIVE IN ANY RESPECT,
YOU (NOT THE INITIAL DEVELOPER OR ANY OTHER CONTRIBUTOR)
ASSUME THE COST OF ANY NECESSARY SERVICING, REPAIR OR
CORRECTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN
ESSENTIAL PART OF THIS LICENSE. NO USE OF ANY COVERED SOFTWARE
IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
* 6. TERMINATION.

o 6.1. This License and the rights granted hereunder will terminate automatically if
You fail to comply with terms herein and fail to cure such breach within 30 days
of becoming aware of the breach. Provisions which, by their nature, must remain
in effect beyond the termination of this License shall survive.
o 6.2. If You assert a patent infringement claim (excluding declaratory judgment
actions) against Initial Developer or a Contributor (the Initial Developer or
Contributor against whom You assert such claim is referred to as Participant)
alleging that the Participant Software (meaning the Contributor Version where the
Participant is a Contributor or the Original Software where the Participant is the
Initial Developer) directly or indirectly infringes any patent, then any and all
rights granted directly or indirectly to You by such Participant, the Initial
Developer (if the Initial Developer is not the Participant) and all Contributors
under Sections 2.1 and/or 2.2 of this License shall, upon 60 days notice from
Participant terminate prospectively and automatically at the expiration of such 60
day notice period, unless if within such 60 day period You withdraw Your claim
with respect to the Participant Software against such Participant either unilaterally
or pursuant to a written agreement with Participant.
o 6.3. In the event of termination under Sections 6.1 or 6.2 above, all end user
licenses that have been validly granted by You or any distributor hereunder prior
to termination (excluding licenses granted to You by any distributor) shall survive
termination.
o 6.4 When any Covered Software, or a Larger Work containing Covered Software,
shall be certified as fully compliant with a defined and relevant industry standard
by an appropriate independent certification authority, one hundred and eighty
(180) days later, the terms of this license shall cease to apply to such certified
Covered Software as certified or as incorporated into a certified Larger Work in
favor of the terms of the GNU Lesser General Public License as it was posted on
the Open Source Institute website on the date of certification. If the terms of the
GNU Lesser General Public License could not be determined on the date of
certification, the terms of this license shall continue to apply. Self-certification
procedures, even if otherwise acceptable by independent certification authorities,
shall not be sufficient to cause this paragraph to operate. Only a certification
procedure which requires independent review and positive indication of full
certification by an independent certification authority shall suffice. Either the
Initial Developer or a Contributor, or both, can submit Larger Works containing
Covered Software for certification at any time. Both the Initial Developer and all
Contributors accept an active obligation to notify the Initial Developer and all
Contributors by a reasonable means, including but not limited to a message posted
on the forum where development of Covered Software is discussed, that Covered
Software or Larger Works containing Covered Software have been submitted for
certification and also to notify the same parties by the same means when Covered
Software or Larger Works containing Covered Software have been certified.
o 6.5 If You, or any person or entity acting under your control, authorization, or
actual or implied license, uses Covered Software, either as submitted to the
Library where the Original Software was originally submitted by the Initial
Developer or as later modified by You and/or a Contributor, in Commercial Use
when You or such person or entity are not otherwise eligible to do so under the
terms of this License, this License and the rights granted hereunder shall
immediately terminate.

* 7. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER
TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL YOU,
THE INITIAL DEVELOPER, ANY OTHER CONTRIBUTOR, OR ANY
DISTRIBUTOR OF COVERED SOFTWARE, OR ANY SUPPLIER OF ANY OF
SUCH PARTIES, BE LIABLE TO ANY PERSON FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF
GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR
ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SUCH
PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO
LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SUCH
PARTYS NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH
LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS
EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.
* 8. U.S. GOVERNMENT END USERS.
The Covered Software is a commercial item, as that term is defined in 48 C.F.R. 2.101
(Oct. 1995), consisting of commercial computer software (as that term is defined at 48
C.F.R.  252.227-7014(a)(1)) and commercial computer software documentation as such
terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48
C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users
acquire Covered Software with only those rights set forth herein. This U.S. Government
Rights clause is in lieu of, and supersedes, any other FAR, DFAR, or other clause or
provision that addresses Government rights in computer software under this License.
* 9. MISCELLANEOUS.
This License represents the complete agreement concerning subject matter hereof. If any
provision of this License is held to be unenforceable, such provision shall be reformed
only to the extent necessary to make it enforceable. This License shall be governed by the
law of the jurisdiction specified in a notice contained within the Original Software
(except to the extent applicable law, if any, provides otherwise), excluding such
jurisdictions conflict-of-law provisions. Any litigation relating to this License shall be
subject to the jurisdiction of the courts located in the jurisdiction and venue specified in a
notice contained within the Original Software, with the losing party responsible for costs,
including, without limitation, court costs and reasonable attorneys fees and expenses. The
application of the United Nations Convention on Contracts for the International Sale of
Goods is expressly excluded. Any law or regulation which provides that the language of a
contract shall be construed against the drafter shall not apply to this License. You agree
that You alone are responsible for compliance with the United States export
administration regulations (and the export control laws and regulation of any other
countries) when You use, distribute or otherwise make available any Covered Software.
* 10. RESPONSIBILITY FOR CLAIMS.
As between Initial Developer and the Contributors, each party is responsible for claims
and damages arising, directly or indirectly, out of its utilization of rights under this
License and You agree to work with Initial Developer and Contributors to distribute such
responsibility on an equitable basis. Nothing herein is intended or shall be deemed to
constitute any admission of liability.

[Matthew Flaschen]

Marc Whipple wrote:
> To the license-discuss list:
>
> This is because there is little incentive to participate or to allow employees to participate in Open Source development projects which are
> perceived to grant competitive advantages to competitors, especially in industries where involved certification proceedings are the norm. If
> an Open Source-derived piece of software obtains certification, a competitor could then incorporate it into their own products and,
> depending on the industry, either immediately reap the benefit of the
certification or obtain a high degree of confidence that the product
> would be certified with little or no resistance.

I'm not familiar with these types of industries.  However,  aren't these
certifications generally expensive and time-consuming?  Also, it was my
impression that they become invalid after slight modifications.  I don't
think it would be effective for a redistributor to reapply for
certification.  In fact, this seems like an inherent advantage for the
initial developer.

> In order to provide incentives for such development either by commercial entities or by the employees of such entities with their approval
> and consent, the CPDDL provides that commercial usage rights for software developed under its terms are limited

Really, that breaks it right there, in my opinion.  OSD #1 says, "The
license shall not restrict *any party* from *selling* or giving away the
software".  Limitations just aren't okay here, even for limited times.

 to active contributors
> during the development process and for a limited time thereafter.

It appears that this limited time can only end (180 days) after
certification.  That means a developer could create software that isn't
certifiable, and it would permanently be non-commercial.  Thus, even if
a limited non-commercial period were acceptable, this could end up being
permanent.

> The changes to the CDDL all relate to this goal and incentive concept:
Commercial Use is defined and restricted during development to active
> contributors

This is a violation of OSD #5, "The license must not discriminate
against any person or group of persons."

> We are not aware of any license which is entirely incompatible with the
CPDDL, although any license which claims to grant unrestricted
> Commercial Use rights to Covered Software which has not yet been certified would create a conflict.

Of course, all OSI-approved licenses do grant these unrestricted rights.

> We are aware that this is a departure from customary Open Source
licensing techniques, and we ask that you consider our goals and our attempt
> to attain them while maintaining the spirit of Open Source in a highly regulated, highly competitive environment with open minds.

This isn't a departure from customary technique.  It's abandoning a core
requirement of the free/open source ethos, and it just can't work.

The license you want is not open source.

Best,

Matthew Flaschen

[Chuck Swiger]

On Mar 7, 2007, at 10:37 AM, Marc Whipple wrote:
> We would like to propose a new Open Source license called the  
> Common Precertification Development and Distribution License  
> ("CPDDL") for certification. It is based on the Common Development  
> and Distribution License ("CDDL") of which Sun Microsystems is the  
> license steward.
[ ... ]
> In order to provide incentives for such development either by  
> commercial entities or by the employees of such entities with their  
> approval and consent, the CPDDL provides that commercial usage  
> rights for software developed under its terms are limited to active  
> contributors during the development process and for a limited time  
> thereafter.

Thanks for the submission, and I hope we can provide feedback which  
will help you obtain your goals while still using an Open Source  
license, but restricting commercial reuse is a non-starter.  See OSD  
#1, #5, & #6; your CPDDL clause 2.1e violates them:

> ? (e) The license granted under this Section shall not allow any  
> Commercial
> Use of the Original Software, or portions thereof, other than by a
> Contributor who has submitted at least one (1) Modification which has
> been accepted by an authorized Source Code Library Monitor. Any
> Contributor who has submitted at least one (1) Modification which has
> been accepted by an authorized Source Code Library Monitor may use the
> Original Software, or portions thereof, in Commercial Use subject  
> to the
> other terms of this License.

If the software is open source, it must permit people to use, change,  
and modify the software for both commercial and non-commercial purposes.

[ ... ]

> To our knowledge, such a combination of temporary restriction and  
> license-term shifting has not been incorporated into an Open Source  
> license before. We are aware that this is a departure from  
> customary Open Source licensing techniques, and we ask that you  
> consider our goals and our attempt to attain them while maintaining  
> the spirit of Open Source in a highly regulated, highly competitive  
> environment with open minds. We are prepared to defend our aim, but  
> we are also prepared to accept comment, criticism, and sincere  
> attempts to improve our method of achieving it. We welcome, and  
> would be grateful for, your input.

I proposed such a license back in 2003:

    http://www.pkix.net/~chuck/Licenses/ENRL.html

...and the OSI board's feedback was that this is not an Open-Source  
license as it stands, but would become OSD-compliant after the  
restriction period had expired.  I believe the same would apply to  
the CPDDL.

--
-Chuck

[Lawrence Rosen]

Marc Whipple wrote:
> To our knowledge, such a combination of temporary restriction and license-
> term shifting has not been incorporated into an Open Source license
> before.

There's very little new under the sun. (And I don't mean the company!)

Your business model is like that used by Aladdin (now Artifex Software) to
distribute Ghostscript. For a period of time, typically a year, Ghostscript
software is distributed under a non-open source license not for commercial
use. [See the Aladdin Free Public License,
http://www.cs.wisc.edu/~ghost/doc/cvs/Public.htm.] Commercial licenses are
also available to the company's customers during that period for a fee. None
of these licenses qualifies for OSI approval.

A year later the company elects to distribute the same software under the
GPL. This model builds a successful business upon that one-year time-period
commercial advantage. That's not contrary to open source, but it isn't open
source. I call it "Eventual Source" in chapter 11 of my book, available for
free at http://rosenlaw.com/oslbook.htm.

A slight bit of history: Peter Deutsch, the author of Ghostscript and of the
Aladdin Free Public License, is a good friend who originally introduced me
to open source. He was on the original board of directors of OSI. He knew
Richard Stallman well, and RMS was (I believe) sympathetic to Peter's
not-quite-free-software license and business strategy. While some of us
might wish that all software was open source from birth, others of us are
tolerant of a time-based commercial advantage that rewards innovation and
promises eventual freedom.

/Larry Rosen

> -----Original Message-----
> From: Marc Whipple [mailto:MWhipple@...]
> Sent: Wednesday, March 07, 2007 10:37 AM
> To: license-discuss@...
> Subject: For Approval: Common Precertification Development and
> Distribution License
>
> To the license-discuss list:
>
> We would like to propose a new Open Source license called the Common
> Precertification Development and Distribution License ("CPDDL") for
> certification. It is based on the Common Development and Distribution
> License ("CDDL") of which Sun Microsystems is the license steward. It is
> our hope that the CPDDL will encourage the development of Open Source
> software useful in commercial applications, even in highly regulated or
> sophisticated industries such as gaming, finance, or equipment control
> systems development, especially for software which is destined for
> eventual certification by independent certification or licensing
> authorities. Currently, implementing standards and protocols, especially
> new and advanced protocols, under Open Source terms is very difficult to
> do in some industries, especially highly regulated ones. This is because
> there is little incentive to participate or to allow employees to
> participate in Open Source development projects which are perceived to
> grant competitive advantages to competitors, especially in industries
> where involved certification proceedings are the norm. If an Open Source-
> derived piece of software obtains certification, a competitor could then
> incorporate it into their own products and, depending on the industry,
> either immediately reap the benefit of the certification or obtain a high
> degree of confidence that the product would be certified with little or no
> resistance.
>
> In order to provide incentives for such development either by commercial
> entities or by the employees of such entities with their approval and
> consent, the CPDDL provides that commercial usage rights for software
> developed under its terms are limited to active contributors during the
> development process and for a limited time thereafter. Non-commercial use
> is allowed under very broad terms at all times. The changes to the CDDL
> all relate to this goal and incentive concept: Commercial Use is defined
> and restricted during development to active contributors, active
> contribution is defined, and the terms under which covered software may be
> certified and thereafter be covered by a less restrictive Open Source
> licensing agreement (the GNU Lesser Public License) are set forth.
>
> Covered Software (software developed under the CPDDL) may be used at any
> time in combination with other Open Source software under any license
> which does not directly conflict with its terms. We are not aware of any
> license which is entirely incompatible with the CPDDL, although any
> license which claims to grant unrestricted Commercial Use rights to
> Covered Software which has not yet been certified would create a conflict.
> In such a case, the terms of the CPDDL are quite clear in that Commercial
> Use rights are not the contributor's to give and therefore any attempt to
> incorporate Covered Software into a broader and less restricted license
> would fail. The terms of the CPDDL would take precedence for derivative or
> combined works with regard to Commercial Use during the restriction
> period. After the restriction period, the extremely broad terms of the GNU
> Lesser Public License would apply.
>
> To our knowledge, such a combination of temporary restriction and license-
> term shifting has not been incorporated into an Open Source license
> before. We are aware that this is a departure from customary Open Source
> licensing techniques, and we ask that you consider our goals and our
> attempt to attain them while maintaining the spirit of Open Source in a
> highly regulated, highly competitive environment with open minds. We are
> prepared to defend our aim, but we are also prepared to accept comment,
> criticism, and sincere attempts to improve our method of achieving it. We
> welcome, and would be grateful for, your input.
>
> You will find the CPDDL attached to this message as a plain-text file.
> Anyone who would like a Word, HTML or PDF version of the document is
> invited to email me directly and I will be glad to forward one. Thank you
> for your attention.
>
> Very truly yours,
>
> Marc Whipple
>
> -><-
>
> Marc Whipple
> General Counsel
> Incredible Technologies, Inc.
> 3333 North Kennicott Avenue
> Arlington Heights, IL 60004
> V: 847-870-7027
> F: 847-870-0120 (Please advise before transmitting sensitive documents.)
>
> The contents of this message are (C) Incredible Technologies, Inc. and are
> confidential unless otherwise indicated. All content may be subject to
> confidentiality agreements, trade secret laws, the attorney/client
> privilege, and/or the US Economic Espionage Act. All rights reserved: do
> not copy or distribute without permission.

[Marc Whipple]

-----Original Message-----
From: Matthew Flaschen [mailto:matthew.flaschen@...]
Sent: Wednesday, March 07, 2007 1:15 PM
To: License Discuss
Subject: Re: For Approval: Common Precertification Development and
Distribution License

Marc Whipple wrote:
>> To the license-discuss list:

>> This is because there is little incentive to participate or to allow
employees to participate in Open Source development projects which are
>> perceived to grant competitive advantages to competitors, especially
in industries where involved certification proceedings are the norm. If
>> an Open Source-derived piece of software obtains certification, a
competitor could then incorporate it into their own products and,
>> depending on the industry, either immediately reap the benefit of the
certification or obtain a high degree of confidence that the product
>> would be certified with little or no resistance.

>I'm not familiar with these types of industries.  However,  aren't
these
certifications generally expensive and time-consuming?
[Marc Whipple]

That is a fair general statement.

>Also, it was my
impression that they become invalid after slight modifications.  I don't
think it would be effective for a redistributor to reapply for
certification.  In fact, this seems like an inherent advantage for the
initial developer.
 
[Marc Whipple]

That is a valid concern. However, in, for instance, the gaming industry,
every *product* must be certified by a licensing authority (usually by
submitting it to an authorized testing laboratory designated by each
jurisdiction,) even products which are mostly comprised of previously
certified material. There's no way around that requirement. Active
Contributors to the development process will all have equal access to
the project and can submit for certification at any time, including
contemporaneously with other certification submissions. There is no
competitive advantage for either the Initial Developer or Contributors.
In fact, the Initial Developer, assuming it has submitted anything like
a useful starting point, is assuming a huge competitive risk that later
Contributors will submit one or two extremely minor Modifications and
then use their access to catch up with or leapfrog the Initial
Developer's progress.

>> In order to provide incentives for such development either by
commercial entities or by the employees of such entities with their
approval
>> and consent, the CPDDL provides that commercial usage rights for
software developed under its terms are limited

>Really, that breaks it right there, in my opinion.  OSD #1 says, "The
license shall not restrict *any party* from *selling* or giving away the
software".  Limitations just aren't okay here, even for limited times.

[Marc Whipple]

I see your point. As I read OSD#1, my interpretation was that it could
be read to allow a temporary restriction for non-fee-related purposes.
(It specifies that fees cannot be charged.) If my reading was too
narrow, then it was.

Another list member (thank you, Mr. Swiger) has pointed out that he
submitted a similar license some years ago and it was denied
certification on this ground. If the territory has been covered, then it
has, and I am certainly not going to try to reverse something that has
been firmly established without more justification than, "If you don't
do this, then we can't do an Open Source project in our industry because
no one will participate." It is sad but true that not all applications
will at this time support an Open Source approach.

>> to active contributors
>> during the development process and for a limited time thereafter.

>It appears that this limited time can only end (180 days) after
certification.  That means a developer could create software that isn't
certifiable, and it would permanently be non-commercial.  Thus, even if
a limited non-commercial period were acceptable, this could end up being
permanent.

[Marc Whipple]

I won't deny that this is possible. As I pointed out, it is anticipated
that the CPDDL will be used with software destined for certification. In
some industries, non-certified software can't be used at all, and
furthermore, any Contributor can submit a Modified Version for
certification at any time, even if the Initial Developer or other
Contributors don't want them to. The actual likelihood of
non-certification being used as a tactical technique is vanishingly
small, in my opinion.

>> The changes to the CDDL all relate to this goal and incentive
concept:
Commercial Use is defined and restricted during development to active
>> contributors

>This is a violation of OSD #5, "The license must not discriminate
against any person or group of persons."

[Marc Whipple]
I submit that reading this limitation as a discrimination is too broad
an application of the term. All licenses discriminate against persons or
entities which violate their terms, at the very least by revoking some
or all of the license rights.

>> We are not aware of any license which is entirely incompatible with
the
CPDDL, although any license which claims to grant unrestricted
>> Commercial Use rights to Covered Software which has not yet been
certified would create a conflict.

>Of course, all OSI-approved licenses do grant these unrestricted
rights.

[Marc Whipple]

Do all OSI-approved licenses grant rights to, for instance,
misappropriated software integrated into a contribution? I don't think
they do, or could. My argument is simply that offering those rights
which one does not yet have under the terms of another license doesn't
grant the offer legitimacy.

>> We are aware that this is a departure from customary Open Source
licensing techniques, and we ask that you consider our goals and our
attempt
> to attain them while maintaining the spirit of Open Source in a highly
regulated, highly competitive environment with open minds.

>This isn't a departure from customary technique.  It's abandoning a
core
requirement of the free/open source ethos, and it just can't work.

>The license you want is not open source.

[Marc Whipple]

If it isn't, then it isn't, and I thank you for your time and effort in
addressing the situation. I hope that you and other readers accept the
fact that we really do want to do things right, and if we can't make it
work, at least we made the effort.

Very truly yours,

Marc Whipple

[Marc Whipple]

-----Original Message-----
From: Chuck Swiger [mailto:chuck@...]
Sent: Wednesday, March 07, 2007 1:25 PM
To: Marc Whipple
Cc: license-discuss@...
Subject: Re: For Approval: Common Precertification Development and
Distribution License

On Mar 7, 2007, at 10:37 AM, Marc Whipple wrote:
>> We would like to propose a new Open Source license called the  
>> Common Precertification Development and Distribution License  
>> ("CPDDL") for certification. It is based on the Common Development  
>> and Distribution License ("CDDL") of which Sun Microsystems is the  
>> license steward.
[ ... ]
>> In order to provide incentives for such development either by  
>> commercial entities or by the employees of such entities with their  
>> approval and consent, the CPDDL provides that commercial usage  
>> rights for software developed under its terms are limited to active  
>> contributors during the development process and for a limited time  
>> thereafter.

>Thanks for the submission, and I hope we can provide feedback which  
will help you obtain your goals while still using an Open Source  
license, but restricting commercial reuse is a non-starter ...

>I proposed such a license back in 2003:

    http://www.pkix.net/~chuck/Licenses/ENRL.html

>...and the OSI board's feedback was that this is not an Open-Source  
license as it stands, but would become OSD-compliant after the  
restriction period had expired.  I believe the same would apply to  
the CPDDL.

[Marc Whipple]

Thank you for your input. As I pointed out in a prior message, if it
won't work, it won't, and at least we tried. I appreciate the time and
patience of the list members.

Very truly yours,

Marc Whipple

[Marc Whipple]

-----Original Message-----
From: Lawrence Rosen [mailto:lrosen@...]
Sent: Wednesday, March 07, 2007 1:39 PM
To: Marc Whipple; license-discuss@...
Subject: RE: For Approval: Common Precertification Development and
Distribution License

Marc Whipple wrote:
>> To our knowledge, such a combination of temporary restriction and
license-
>> term shifting has not been incorporated into an Open Source license
>> before.

>There's very little new under the sun. (And I don't mean the company!)
>Your business model is like that used by Aladdin...

[Marc Whipple]

Thank you. While I like to consider myself at least an honorary computer
geek, I am fairly new to the "serious" side of Open Source licensing.
Our developers - most of whom *have* been involved in it for many years
- told me that they'd never seen an approach like this in an Open Source
license. I am grateful for the input of more experienced persons.

Very truly yours,

Marc Whipple

[Matthew Flaschen]

Marc Whipple wrote:
> In fact, the Initial Developer, assuming it has submitted anything like
> a useful starting point, is assuming a huge competitive risk that later
> Contributors will submit one or two extremely minor Modifications and
> then use their access to catch up with or leapfrog the Initial
> Developer's progress.

Such leap-frogging is an intended benefit of open source.  One idea is
that if an initial developer can't get things together, someone else can
pick up the slack.

> Another list member (thank you, Mr. Swiger) has pointed out that he
> submitted a similar license some years ago and it was denied
> certification on this ground.

I wasn't around for that, but it does seem similar enough.

> If the territory has been covered, then it
> has, and I am certainly not going to try to reverse something that has
> been firmly established without more justification than, "If you don't
> do this, then we can't do an Open Source project in our industry because
> no one will participate." It is sad but true that not all applications
> will at this time support an Open Source approach.

I understand that not all companies are ready for open source.  However,
 compromising the OSD gains nothing tangible in the short run and costs
a lot in the long run.

>> It appears that this limited time can only end (180 days) after
> certification.  That means a developer could create software that isn't
> certifiable, and it would permanently be non-commercial.  Thus, even if
> a limited non-commercial period were acceptable, this could end up being
> permanent.
>
> [Marc Whipple]
>
> I won't deny that this is possible. As I pointed out, it is anticipated
> that the CPDDL will be used with software destined for certification. In
> some industries, non-certified software can't be used at all, and
> furthermore, any Contributor can submit a Modified Version for
> certification at any time, even if the Initial Developer or other
> Contributors don't want them to. The actual likelihood of
> non-certification being used as a tactical technique is vanishingly
> small, in my opinion.

I'm not so sure.  I think it could conceivably be abused.  There's been
a lot of gaming going on in open source lately, no pun intended.  It
seems equally easy to game the other way though; i.e. even with the
restrictions it shouldn't be hard to find a "independent certification
authority" to make an irrelevant certification.  So maybe this objection
isn't relevant.

>> This is a violation of OSD #5, "The license must not discriminate
> against any person or group of persons."
>
> [Marc Whipple]
> I submit that reading this limitation as a discrimination is too broad
> an application of the term. All licenses discriminate against persons or
> entities which violate their terms, at the very least by revoking some
> or all of the license rights.

Maybe I wasn't clear.  The discrimination here is granting one group
(developers) commercial distribution right, and withholding it from
another (users).  You should be aware that this list is consistently
accused of interpreting 5 & 6 too broadly.

>
>>> We are not aware of any license which is entirely incompatible with
> the
> CPDDL, although any license which claims to grant unrestricted
>>> Commercial Use rights to Covered Software which has not yet been
> certified would create a conflict.
>
>> Of course, all OSI-approved licenses do grant these unrestricted
> rights.
>
> [Marc Whipple]
>
> Do all OSI-approved licenses grant rights to, for instance,
> misappropriated software integrated into a contribution? I don't think
> they do, or could.

No, of course not.  All I was saying is that your code couldn't be
redistributed under any other license.  That isn't itself a /problem/,
but it isn't a good sign either.

>> The license you want is not open source.
>
> [Marc Whipple]
>
> If it isn't, then it isn't, and I thank you for your time and effort in
> addressing the situation.

You're welcome.  Thank you for being respectful and communicating in
good faith.

Matthew Flaschen