Innovation in Open Source Licensing

The constant drive for innovation is one of the distinguishing factors of the technology industry. Even the most significant technological inventions can become virtually obsolete in the span of only a few years. Until recently, the longevity of the most familiar open source licenses stood in stark contrast to the the rapid pace of change in the technologies licensed under their terms. But is the pace of change growing for open source licensing too?

Evidence of the longevity of open source licenses is easy to find. The Mozilla Public License 1.1 was created in the late 1990s. It has not only survived in the same form to the present day, but it remains one of the most popular and well respected licenses. The Apache license, originally released in 2000, has been consistently used in the same form since it was updated to version 2 in 2004. Until the recent release of version 3 of the GNU General Public License, version 2 survived as the most popular and longest lasting open source license of all time, remaining unchanged for more than 15 years. The stability of these licenses over time spans of more than 10 years is impressive when one considers that most proprietary software vendors revise their end user license agreements every one or two years with each new release.

On the other hand, recent developments might be an indication of innovation in open source licensing. The release of version 3 of the GPL in 2007 indicates that the open source marketplace needed a license that performed essentially the same functions as version 2, but refined the application of those functions to the new realities of the software industry, such as the rise in importance of patents, and the awareness that use of GPL-licensed code is prevalent in embedded hardware components. The Affero version of GPL (treating network access to an application as a form of distribution that triggers application of the GPL's source code distribution obligations), a seldom used option for GPL users, was originally released in 2002, but it too has been revised in connection with the release of GPLv3. (Note: The 2006 release of the Honest Public License by Funambol CEO Fabrizio Capobianco directly equated "network communication" with "distribution", whereas the Affero GPL v1 itself used different terms but probably had the same effect.)

Other, more significant types of license innovations are occurring. Consider the Cilk Arts Public License, a newly created license made pubic in November 2008 by a company named Cilk Arts, which provides multiprocessor application platform performance optimization. This license is intended to address the "loophole" in the GPL concerning the fact that users of GPL-licensed software can modify and use the software internally without any obligation to release modifications to the public. This concept truly is an innovation when you consider that the right to use software internally without obligation is one of the inherent freedoms the Free Software Foundation tries to protect. Whether it will be adopted to any significant degree by the open source community remains to be seen.

It is also important to point out that not all of the recently released licenses are necessarily innovative. Consider approval of the Microsoft Public License (Ms-PL) and Microsoft Reciprocal License (Ms-RL) in 2007 by the Open Source Initiative as meeting the OSI's definition of open source (though the licenses have been in use since 2005). These licenses are not innovative in that they operate much like the new BSD, Apache 2.0, and MPL. In fact, these licenses turned out to be quite controversial, not because they contradicted the norms of open source licensing, but because people feared Microsoft was attempting to gain an unfair advantage by having its own version of open source licenses while many other comparable, popular licenses already existed.

In recent years we have seen new open source licenses released to, among other things, address changes in the software industry (GPLv3), address perceived deficiencies in existing open source licenses (Cilk Arts Public License), and to spin existing open source license templates to address a particular company's business needs (Ms-PL and Ms-RL). In my view, of the licenses discussed above, only the Cilk Arts Public License represents true innovation in the field of licensing. The others are simply incremental improvements applying the same license features to new situations. Maybe there are other "out of the box" attempts at creating a new license out there and I would love to hear about them (please send your comments). At the same time, however, we should all consider whether we truly need license innovation and at what point a company-specific twist on open source licensing transforms from addressing a legitimate business need, to being nothing more than a vanity license.