A new organization called the Open Standards Alliance became active on September 14, 2004 at the close of an inaugural meeting convened under the title "Open Source, Open Standards: Maximising Utility While Managing Exposure."

Organized by John Terpstra and underwritten by Sun Microsystems, the "Open Source, Open Standards" conference brought together "a team of open source experts, standardization consultants, and information and communications technology specialists to discuss practical strategies for strengthening open source growth."

The conference included four principal topics with presentations and panel discussions: (1) Business Risk and Exposure in Open Source Utilization; (2) The Open Standards Deficit in Open Source: Problems in IP Management, Stability, and Market Growth; (3) Implications for Open Source Adoption; (4) Strengthening Open Source: Consideration of Alternative Solutions. Some seventy-five people attended the event, where invited presentations were given by "prime movers from standards-setting organisations such as W3C, ECMA, ETSI, and OMG, along with representatives from a broad spectrum of industry, including banking and finance, software development, manufacturing, public service, government, universities, law, and representatives from key Open Source organisations such as OSSI and the Free Standards Group."

According to the published conference report, "the meeting placed great importance on the necessity of collaboration between the open source software community and bodies that have a vested interest in open public standards. The meeting coalesced around Lawrence Rosen's observation that traditional IP protective measures, including licensing, are based on an underlying notion that a consumer or user is always a licensee. The Open Source paradigm challenges that traditional perception with the principle that every licensee is a potential licensor. Therefore, a successful standardisation process for Open Source software must accommodate this fact. Potential sub-licensing is the principle that lies at the heart of the value proposition that open source software provides to the end user."

The Conference Wrap-Up presented by Conference Chair John H. Terpstra reinforced the notion of sub-licensing as the most significant value proposition of Open Source: sub-licensing is a key determinant and central principle. Therefore "an Open Standard must guarantee entitlement to sublicense to a new licensor under terms of original license."

Conference attendees reached a consensus that "open standards are the natural concomitant of Open Source software, and a necessary preservative of the ability of organisations to use Open Source and proprietary software."

The Open Standards Alliance launched at the conclusion of the conference is being constituted as a 501(c)3 not-for-profit organization "aimed at bridging the gap between standards bodies, software developers and software users (consumers)." Funding is being sought to create a reference base for open standards and software applications that meet the definition of "open" as determined by members in a subsequent meeting.

The Open Standards Alliance "aims to operate with an industry-wide panel of companies to steer open standards throughout the software industry. Based upon results from a series of one day conferences held around the world to gain further insight into the perceptions of interested parties, the members will "document requirements for cooperation to define open standards and seek to gain broad industry commitment to creation of such open standards. The Open Standards Alliance will then set in motion a plan necessary to create open standards for all software, especially Open Source software, where none presently exists."

Principles for Open Source and Open Standards

The opening Keynote Address at the "Open Source, Open Standards" conference was delivered by Lawrence Rosen, General Counsel for the Open Source Initiative. His presentation "Open Source + Open Standards" articulates key (draft) principles that will be discussed and refined by the Open Standards Alliance.

"Larry Rosen proposed five normative principles for open standards that are compatible with Open Source software licensing. The five principles of open standards are:

1. Everyone is free to copy and distribute the official specification for an open standard under an open source license.
2. Everyone is free to make or use embodiments of an open standard under unconditional licenses to patent claims necessary to practice that standard.
3. Everyone is free to distribute externally, sell, offer for sale, have made or import embodiments of an open standard under patent licenses that may be conditioned only on reciprocal licenses to any of licensees' patent claims necessary to practice that standard.
4. A patent license for an open standard may be terminated as to any licensee who sues the licensor or any other licensee for infringement of patent claims necessary to practice that standard.
5. All patent licenses necessary to practice an open standard are worldwide, royalty-free, non-exclusive, perpetual and sublicenseable."

Larry Rosen also set out Open Source Principles; he "hopes these principles will serve as a starting point for discussions on how the Open Source and Open Standards communities can work together to realize the benefits of open standards while preserving the unique value and culture of the open source community.

1. Licensees are free to use open source software for any purpose whatsoever.
2. Licensees are free to make copies of open source software and to distribute them without payment of royalties to a licensor.
3. Licensees are free to create derivative works of open source software and to distribute them without payment of royalties to a licensor.
4. Licensees are free to access and use the source code of open source software.
5. Licensees are free to combine open source and other software."

Sublicense: Key Issue in "Apache Projects Unable to Deploy Sender ID"

The Apache and Debian responses to the Microsoft Patent License Agreement on Sender ID illustrate the importance of sublicense in the Open Source business model. Details are provided in the news story "Apache Software Foundation Rejects Microsoft Patent License Agreement for Sender ID."

On September 2, 2004 the Apache Software Foundation (ASF) sent an open letter to the IETF MTA Authorization Records in DNS (MARID) Working Group announcing the decision of ASF projects not to implement or deploy the IETF Sender ID specification under terms required by Microsoft's Patent License Agreement. The letter from Apache also expressed concern that "no company should be permitted IP rights over core Internet infrastructure" and urged the IETF to "revamp its IPR policies to ensure that the core Internet infrastructure remain unencumbered." The issue of sublicense was key in the legal review, as excerpted here:

The open source development and distribution process works as well as it does because everyone treats open source licenses as sublicenseable, and most of them are expressly so. Open source licenses contemplate that anyone who receives the software under license may himself or herself become a contributor or distributor. Software freedom is inherited by downstream sublicensees. Meanwhile, the Microsoft Sender ID patent license continues the convenient fiction that there are "End Users" (S1.5) who receive limited rights. That is unacceptable in open source licenses.

I have explained to Microsoft that their license is expressly incompatible with the warranty of provenance in the Academic Free License and the Open Software License:

"Licensor warrants that the copyright in and to the Original Work and the patent rights granted herein by Licensor are owned by the Licensor or are sublicensed to You under the terms of this License with the permission of the contributor(s) of those copyrights and patent rights." (AFL/OSL S7)

The "nontransferable, non-sublicenseable" language in their reciprocal patent license (S2.3) also imposes an impossible administrative burden on the open source development community and, in essence, creates additional downstream patent licenses that will be incompatible with the AFL/OSL and similar open source licenses, and with the open source development process.

The requirement that Microsoft Sender ID patent licenses be formally executed (e.g., S6.10) is incompatible with the way the open source development and distribution process actually works. Furthermore, the requirement that "If you would like a license from Microsoft (e.g., rebrand, redistribute), you need to contact Microsoft directly" (S2.2) gives Microsoft information about its competitors' plans that it has no reason to know. No open source license — and all of them allow rebranding and redistribution — can be conditioned on informing Microsoft of anything at all. Other proposed licenses have been rejected by OSI and FSF because they required licensees to notify the licensor of their intentions.

About Open Source

"During the 1980s, software engineers were growing increasingly frustrated with the multiple incompatible and proprietary versions of the Unix operating systems being distributed by software vendors. In February 1989, Richard Stallman first released his GNU project software for Unix under version 1.0 of the GNU General Public License (GPL). In June of that same year, Bill Joy first released a free version of Unix software under the University of California's Berkeley Software Distribution (BSD) license. These relatively quiet events signaled a new era in software licensing. Almost imperceptibly at first but with increasing speed and energy, this licensing revolution, now widely referred to as open source, spread around the world.

By the first year of this century, approximately 17,000 open source projects were active on the SourceForge servers (www.sourceforge.net). Four years later there are over 74,000 such projects and more than 775,000 registered SourceForge users. The majority of that open source software is currently licensed under the GPL or BSD licenses; the rest use one of about fifty other licenses based on the same open source principles. [Note updated statistics for SourceForge 2004-10-20: "Registered Projects: 89,368 and Registered Users: 937,896"]

Open source is now dominating many of the market conversations in the software industry. While software companies continue to release valuable and high-quality products under proprietary licenses, most are also embracing open source product development and distribution models as well as the software licenses that make those models possible...

Open source is built upon a foundation of intellectual property law, particularly copyright law. Open source software is owned by its authors, who license it to the public under generous terms. Open source licenses do not seek to destroy or steal intellectual property: intellectual property laws that make open source licensing possible..." [excerpt from Lawrence Rosen's Open Source Licensing: Software Freedom and Intellectual Property Law]