Bruce Perens -- The Apple Public Source License - Our ConcernsMar 17, 1999, 15:01 (14 Talkback[s])
(Other stories by Bruce Perens)
Perens, Primary Author: The Open Source Definition.
Co-Founder: The Open Source Initiative.
We welcome Apple Computer, Inc. as a participant in the Free Software Community. We feel that a few problems in the present version of the Apple Public Source License (the APSL) disqualify it as "Open Source(TM)" or "Free Software". We hope that Apple can address these issues to everyone's satisfaction.
The participation of companies like Apple and IBM should be considered in the same way as the participation of any free software developer. Everyone is welcome to make a contribution. Individually, we each decide whether or not to accept a particular developer's contribution, for reasons that range from technical to legal and licensing concerns. We openly discuss these issues before our community, often quite harshly, as a means of developing consensus and charting our course. One consensus that we've reached is the Open Source Definition, a generally accepted definition of Free Software licensing, written by Bruce Perens and the Debian GNU/Linux developers in 1997.
We note that much of the material that Apple has just released under the APSL originated at The University of California, Berkeley and at Carnegie-Mellon University. That work was sponsored by the U.S. Government, paid for with our taxes, and was already available as Free Software under the BSD license and other well-accepted Open Source licenses. Many of these files do not significantly differ from the pre-Apple versions except that they bear the addition of a new copyright and license. Other files are entirely authored by Apple or bear significant modifications that should indeed be considered Apple's property. Where Apple has not significantly modified individual files from their pre-Apple versions, their original licenses should be preserved without the addition of the APSL.
Section 2.2(c) of the APSL requires that the producer of modifications to APSL-licensed code use a particular URL in the Apple.com domain to notify Apple. While the demise of Apple Computer, Inc. is unlikely in the near future, that sad event would leave us unable to comply with this section of the APSL. This would constitute a restriction on all rights granted by the license, including those rights necessary to qualify under the Open Source Definition. The Free Software community plans a very long lifetime for its software, and we hope that Apple will cooperate by changing this provision so that APSL-licensed software could survive without Apple. We suggest that the simple publication of modifications, such as posting on a personal web site accessible to the global internet and pointed out in any binary distributions, be all that is required. This is consistent with other licenses in our community.
Section 9.1 of the APSL allows Apple to terminate our rights to
use any or all APSL-covered code, at its sole discretion, in the
event of an unproven claim of infringement, no matter how specious.
This is derived from a similar objectionable portion of IBM's
license, which disqualified that license from being referred to
as "Open Source". We hope that Apple will consider the investment
that members of the Free Software community will put into
APSL-licensed code when they write modifications for it. An
arbitrary termination could cause us to suddenly lose that
investment at some future date, with no chance for appeal. The
licenses accepted by our community do not provide the possibility
of termination in this manner. If termination due to an
infringement claim is to be allowed at all, it should be explicitly
limited to the particular source-code lines that are considered to
infringe upon an existing patent. This would make it possible for
the free software community to "write around the problem" and
create a non-infringing version. The authors of the APSL apparently
did not consider that patents expire. It should be possible for us
to store infringing code for restoral to use upon the expiration of
the patent in question. Apple might also consider if it's possible
to allow third-parties to defend the disputed code from an
infringement claim that would cause us all to lose our rights under