For all sorts of reasons beyond the scope of this article, the open-source community has long been divided into several camps, which often seem to be defined by people’s feelings are about the Free Software Foundation and it’s leader Richard M. Stallman but are frequently in substantive disagreement about what it means for software to be open source software.

It’s an all too common situation to find companies publishing software under an OSI-approved open source license and then being attacked by open source developers and community leaders who make the claim that their software is not truly an open source project. The problem goes deeper than just technicalities, and touches on what it really means to be open, and the reason I’m writing this is to suggest that we be more intentional and discriminating about our terminology.

My proposal is simple: In addition to the current definition of “Open Source Software,” which is well established by both the FSF and the OSI, we should define “Community-Driven Software” which is software which goes beyond open source licensing requirements to have what some would call an “open source development model.”

The FSF and OSI each have web pages where they explain at great length what free software and open source software are. They both agree on what the FSF calls (in homage to President Roosevelt):

The Four Freedoms (of software):

1. The freedom to run the program for any purpose. This means the license can’t discriminate against certain uses, certain people or groups, or against use by people performing certain types of work.
2. The freedom to study how the software works, and change it to make it do what you wish. This means the source code must be available, and the user must be allowed to modify it.
3. The freedom to redistribute copies. This means that the software can’t have restrictions about giving copies away (modified or unmodified), and can’t charge royalties or license fees.
4. The freedom to distribute modified versions. Essentially, this is the freedom to fork the software.

Although their respective pages go on about these at great length, and discuss other terms and conditions, these four freedoms are the simplest definition of what open source software is.

Moving the Finish Line

As more and more corporations have begun to accept the concept of open source software licenses, the community of open source developers, hobbyist, and users have begun to expect more than simple open license terms, and (as I said before), have even begun to claim that an open source license is not enough for a program to be considered open source.

Essentially, there has been a growing group which is redefining open source software to mean software which is developed through a “community process” whereby anyone can potentially submit patches and bug fixes which can eventually be incorporated into the original project. Of course, neither the FSF, nor the OSI, (nor any software license I am aware of) has attempted to define free software or open source as meaning that anyone can contribute alterations to the original project but only that you have the right to fork and create a new project.

I believe that it’s important to the integrity of the open source “movement” and the acceptance by corporations of the concept of not just using open source software but actually creating it, that we not try to redefine “open source” to mean something that it has not meant historically. It’s critical that even as we are, in essence, moving the finish line … we not leave corporations feeling that we have changed the rules mid-game.

There is really no upside to disputes about whether or not a particular software program is “really” open source — these debates alienate developers who must sometimes work very hard to get their corporations to accede even to a limited source code release, and then find their efforts bashed by the very people they thought would be most pleased.

Community-Developed Software

I would like to suggest that we allow the definition of “open source” to be simple, and to mean what it has always meant (software which is provided under legal terms which ensure the four freedoms). But lets push individuals and corporations who release open source software to make sure that they also have a community-driven software development model.

What does that mean? Well, I don’t really want to set that standard in stone myself right now — it’s certainly still being debated by many people — but I want to put something out there as a starting point. Of course, we’re starting from the basis that the project is under an open source software license, but what else is required in addition for a project to be considered a community project? Do we need to know who all the developers with check-in rights are? Are projects in a “benevolent dictator” system with just one authorized check-in user automatically not community projects?

I think we can probably break it down to just two additional freedoms (if we’re willing to twist the concept a little bit). Obviously the four freedoms above are all implied … but additionally, a community project should give you:

1. Freedom from ignorance:
   • Users should be able to see what’s getting done on the project.
   • External developers should be able to see what still needs doing on the project.
2. Freedom to contribute:
   • Users should be able to submit bugs and feature requests
   • External developers should be able to submit patches (and see them applied).

Personally, I believe that seeing what’s getting done, and being able to submit patches requires that the development team to be developing on a publicly visible source repository (or at least performing regular pushes to one). If you’re only pushing source to a public repository when you do a release, then users can’t see if there’s any progress happening on the project at all, and even if you’re pushing source once a month or once a week, depending on the speed of development, external developers will be reluctant to submit patches for bugs or features which might already be implemented by someone else.

Additionally, I think seeing what needs doing, and being able to submit bugs and feature requests requires a public tracker that is, at least, connected to the actual tracker used by the development team. There shouldn’t be a censorship layer between developers and users when discussing bugs and feature requests, and the public bug and feature request tracker should be updated when a fix is accepted or a feature is implemented, so that external developers don’t waste time creating patches for issues that are already resolved.

Obviously the point here is that users and external developers need to feel like they’re able to interact with the development team, and external developers should be able to submit patches which can be applied to the project. The idea is that end users and external developers shouldn’t have to go through a PR person or even a single public facing contact, and if I know how to fix a bug, or how to implement a features, I shouldn’t have to fork the project to get my fix applied.

None of that is meant to imply that every submitted feature request or patch will be applied — the development team always has the right to take their software in the direction they think it should go (even if users think they’re wrong). People who completely disagree with the direction a project is taking are still free to fork the project and go a different way.

What do you think?

The first tool out of the gate, of course, was the Windows API Code Pack for the .Net framework. A nice library that makes it simple to write applications that take advantage of new Windows Vista and Windows 7 features like Libraries, Task panes and jump lists. Of course, that library has a major problem: it’s got an ugly and confusing license. Rather than using one of the standard Microsoft Open Source Licenses, the team used a license from the dark ages that features the vague “Excluded Licenses” clause and other ugly terminology.

More recently, Microsoft has announced a Platform Update for Vista which is intended to allow Vista to run most applications designed for Windows 7. The Platform Update is a set of runtime libraries which includes the Windows Ribbon control; Automation Manager Library; DirectX updates for hardware acceleration; DirectCompute for hardware-accelerated parallel computing support; the XPS printing library; the Windows Automation API; and the Windows Portable Devices Platform, which standardizes data transfers across apps and portable devices. This important package will be made available through Windows Update (and applications will be able to prompt you to download it) and it is in public beta with more information on the Windows Team blog. A couple of pieces of that will be made available for Windows XP; particularly the Automation API, which allows accessibility tools and test automation tools to access Windows user interface in a consistent way — this will mean that the next release of WASP will work flawlessly across Windows XP, Vista, and Windows 7.

Also in the works is the Remote Desktop Connection 7.0 (RDC7) client for Windows XP and Windows Vista to allow these older clients to take advantage of all new server features in Windows 7 and Windows Server 2008, including multi-monitor support and media redirection. There’s more information about that on the Remote Desktop team blog.

And finally, the release candidate for the Windows Management Framework (WMF) is also available. The WMF will include WinRM (Microsoft’s implementation of the WS-Management spec), PowerShell 2.0, and BITS for Server 2008, Windows Vista, Server 2003, and of course, Windows XP. This means that if you’re on Vista, or still using Windows XP, you can now upgrade from the PowerShell 2.0 CTP 3 to this release candidate and expect remoting to work!

All of these should be seeing final releases in the very near future, and some of them possibly by the time Windows 7 is released to the public.

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By now, those of you who have previously read my rants about software licenses know to avoid Evernote. But let me tell my story anyway. I downloaded the installer and ran through it, noting that the click-through license displayed in the installer is for the software only, and references possible additional terms for a “service” ... So far, so good, the most annoying thing I noticed while scanning was:

9. Monitoring and Removal of information. ... Evernote Corporation and its designees shall have the right to refuse or remove any information that violates this Agreement or is otherwise objectionable, in Evernote Corporation sole judgment…

I didn’t particularly like that in a software license, but it wasn’t enough to get me to stop installing the software. However, I have to say, the license it is ridiculously huge:

• Roughly 3500 words
• On 330 lines of text
• (which you’re expected to read in a 10-line window)

• Making 33 pages of license (about 8 pages printed on letter size paper)

Nobody should be expected to put up with this. Let me say this for the record:

Put your license on the download page.

This will allow people like me to read the license before we download the software and possibly save us the trouble. Pretending you think people will read something like that in the tiny little window is a cruel joke.

The worst joke, however, was yet to come.

When I tried to actually use the software, it became clear that in Evernote 3, you cannot actually use the software without a service account. This, of course, means another click-through on their Terms Of Servitudece and Privacy Policy…

• Approximately 5600 word TOS
• That’s thirteen pages of license!
• Another 1800 words in the Privacy Policy
• For a grand total of:
  • Over 10,000 words

• Over 25 pages

If you try to actually read the terms of service for the online service, you’ll find the classic evil genius license terms:

If you do access our web site and use our Service, your use shall be deemed to accept the Terms of Service and be a party to a legally binding contract … be sure to regularly check these Terms of Service for any updates or other changes, which shall be legally binding upon you when we post them, whether or not we provide you any other notice of such changes. The then-applicable Terms of Service will be posted at www.evernote.com/about/tos, and we will indicate the date of each update at the end of the Terms of Service. Your continued use of the Service after any update will be deemed to represent your consent to be bound by, and agreement with, the new Terms of Service.

Let’s be honest. Having read that … there’s really just no point in going any further. To paraphrase an earlier rant: I do not agree to review contracts on a regular basis — that’s preposterous. If even half of the applications I use required me to review their contracts every day before I used them, I would be spending hours each day just cutting-and-pasting their licenses into Win-Merge so I could spot the differences. Imagine trying to read ten thousand words of legalese every day before you start taking notes, just in case Evernote decided that now they want you to chant “Evernote rocks” out loud every 15 minutes while using it or pay a $150 monthly user fee retroactively…

It’s bad enough when companies like Microsoft and Paypal do this and send me a notice that they’ve changed their terms and I should review them. I can accept that a business might need to change their service agreement occasionally. But to put the burden on the users to routinely check 25 pages of license terms for changes you have to be barking mad. The worst thing is that this isn’t the end of it:

Of course, you may also be required or elect to enter into a separate written agreement or click “accept” or “agree” to become a party to another contract with Evernote (a “Separate Agreement”), and these Terms of Service shall not be considered to supersede the specific contractual terms of the Separate Agreement. If there is any contradiction between the terms of the Separate Agreement and these Terms of Service, then the terms of the Separate Agreement shall take precedence over the contradictory terms in the Terms of Service with respect to the subject matter of such Separate Agreement.

So basically, as you go on about using the service or application, they may layer on additional provisos, and a few quid-pro-quos, addendums, and modifications, leaving it to you to not just keep up to date on them, but to figure out for yourself what parts of which apply!

And yes, they also beg out of the need protect your data whatsoever:

“Personal information such as name, e-mail address, contact preferences, which Evernote products and services you use, and transactional information such as your credit card number” ... will be stored along with “Demographic infromation such as your occupation and where you use your devices” and they “cannot ensure the security of information you transmit” to them, and “you acknowledge that you do so at your own risk.” Although at least they promise that “once we receive your data transmission, we make all commercially reasonable efforts to ensure its security on our systems” (what they really mean is Amazon’s systems, since they appear to be using S3 for storage but nevermind).

The best thing in this agreement is that they got the copyright portion right:

Evernote acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms of Service in or to any Content that you submit, post, store, transmit or display on, or through, the Service, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist).

Good for you, Evernote. Now, try and condense this all into one agreement, and don’t make me promise to check it every day — you have my email address (and you promised to cancel my account if I provide you with incorrect information) ... so use it for good, and notify your customers before you make changes to your contracts — like every other trustworthy company.

My standard disclaimer applies here:

I am not a lawyer, and these terms are not unique to Evernote — that’s why I’m writing about them — it’s a disgrace that companies are allowed to post licenses like this and users just shrug and click “accept” without even reading them, and we need to raise a ruckus until companies stop treating us like farmland where they grow money, and start treating us like customers.

Call your representatives, tell your friends and warn your boss — don’t let yourself or your company get tied down by agreeing to contracts which are one-sided. If YOU have to agree to whatever THEY say, and they can just change the license whenever they like — then they’re not under contract, only you are. That’s not a contract, that’s a sentence.

P.S. Don’t let your company be the next one I rant about, either.

We may change this contract at any time. You must review this contract on a regular basis. You can find the most recent version of the contract at http://www.digsby.com/tos.php. The changed contract is in effect right away.

I do not agree to “review this contract on a regular basis” — that’s preposterous. I have several hundred software applications installed — imagine if they all required me to review their contracts every day before I used them, just in case they had modified them. Imagine if I had to read 16 points spread out over 1200 lines of legalese for each application I use, just in case you decided that the terms of service should require me to mew like a cat every 15 minutes while using it or pay a $1500 monthly user fee…

I most certainly do not agree to any changes that go into effect right away before I’ve even been notified of them or had a chance to read them. What if you change them to involve a daily fee …. while I’m on vacation?

All upgrades, updates or enhancements of the Software shall be deemed to be part of the Software and will be subject to this Agreement…. By installing the Software, you hereby agree to automatically request and receive Updates from dotSyntax’s servers.

I most certainly do not agree that you should be allowed to change your software at any time automatically without my permission. And especially not when you also say …

DOTSYNTAX IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE SOFTWARE, (2) ANY INCOMPATIBILITY BETWEEN THE SOFTWARE AND OTHER WEB SITES, SERVICES, SOFTWARE AND HARDWARE...

Unbelievable!

Oh, yeah, and don’t forget … you would also have to check their privacy policy:

The Privacy Policy available at http://www.digsby.com/privacy.php explains dotSyntax’s information practices that apply to … information about you and your use of Digsby.

Acting on the advice of the License Approval Chair, the OSI Board today approved the Microsoft Public License (Ms-PL) and the Microsoft Reciprocal License (Ms-RL). The decision to approve was informed by the overwhelming (though not unanimous) consensus from the open source community that these licenses satisfied the 10 criteria of the Open Source definition, and should therefore be approved.

Not much to say about that, except: about time! (oh, and thank goodness Richard Stallinman isn’t in charge of the OSI).

The official license is as follows:

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

Here’s the download …