Update: IBM has addressed all of the problems that I complained about in this article! Their license is now fully compliant with the Open Source Definition. They were very cooperative in solving the problems I complained about. It's great to see them showing such consideration to the free software community.

Bruce Perens

Here's the old story, for historical interest only.

Is Your Software In Danger of Termination?

Bruce Perens <bruce@perens.com>


Most free software is covered by licenses that never terminate. Unfortunately, some important new free software licenses can terminate at any time,  and at the sole discretion of the copyright holder. Your right to run the software covered by these licenses could be taken away tomorrow, and you'd have no recourse, no means to appeal the decision at all.

One example of this sort of license is the one that covers IBM's Jikes Java compiler and their Secure Mailer. Here is the paragraph on termination from that license:

In the event an intellectual property claim is made or appears likely
to be made with respect to the Software, you agree to permit IBM to
enable you to continue to use the Software, or to modify it, or replace
it with software that is at least functionally equivalent.  If IBM
determines that none of these alternatives is reasonably available, you
agree, at IBM's request, upon notice to you, to discontinue further
distribution of the Software and to delete or destroy all copies of the
Software you possess.  This is IBM's entire obligation to you regarding
any claim of infringement.
This looks friendly enough, at first, but if you read it carefully, you'll realize that IBM has the right to stop you from using their software if they even think there might be an intellectual property claim, and they get to define what reasonably available means. Now, I'm not saying that IBM would use this to trick us - they are sincerely trying to be members of the free software community. However, people make contracts so that when managers change, the spirit of the agreement is still preserved. Software licenses are the only contracts the free software community has, and we should be careful about them.

To paint the worst-case scenario, suppose at some time in the future, after our current crop of IBM managers have moved on, it became to IBM's advantage to withdraw Jikes and Secure Mailer. All they would need is a threat of a possible intellectual property claim, whether it could ever be enforced or not. They could post a notice to their web site saying Sorry, but your license is terminated. Please destroy all of your copies of the software. That is all the notice they're required to provide. You'd have no right to continue to distribute or run the software, and any investment that the free software community had made in improving those programs would be lost... lost to you, at least. It's possible that IBM could still use the improvements you'd written. The whole free software community, however, would be penalized because of some absurd patent infringement claim. If your business depended on Jikes or Secure Mailer, you'd be in trouble.

Again, I'm not saying that IBM would do this. We just don't want a license that would ever let it happen, even in the most unlikely of circumstances. And we definitely don't want other people copying that termination clause. Any big company that joins the fray is likely to copy IBM, so more licenses with bad termination clauses are very likely, and that makes it much more likely that some important piece of free software will suddently have its license terminate.

A while back, Richard Stallman pointed out that this termination clause makes the IBM license fail the Open Source Definition
and the Debian Free Software Guidelines. As the primary author of those documents, I have to agree with him. The OSD and DFSG require that software be freely redistributable, which certainly isn't the case if the license has been terminated arbitrarily. I'd hoped that we could work this issue out with IBM by now, but I think they need your encouragement to solve this little nit in their otherwise fine license.

IBM should take the example of Netscape. In their new draft of the Mozilla Public License, Netscape showed the proper way to handle patent infringement lawsuits: The Mozilla license terminates:

    If You initiate patent infringement litigation against Initial Developer or a Contributor

Here, Netscape penalizes only the person or company who brings a suit, rather than the entire free software community. Use the above link to read the entire license.

Now, I can understand IBM's policy from their own standpoint: they own 10% of all software patents, and they have declared their intention to make $1 Billion a year from licenses on those patents. They aren't after money from us in the free software community, we're just caught in the middle of a clash of titans. However, it's entirely up to us to decide to accept the IBM license, or reject it. As long as their license can be terminated arbitrarily, we should not accept it, and we should tell them why. I'm sure that if enough of you complain, they'll fix the problem. It's also time for us to start insisting on protection for free software authors against software patent lawsuits. While I think that a much broader rennovation of the patent system is called for, in the short term we need that protection to assure our continued viability.

    Bruce Perens