The question presented is actually a very good one in my opinion because it calls out a subtle complexity with discussing open source and understanding what is really meant by the various uses (and, possibly, misuses) of the term. I think a programmer may freely identify their software as "closed source," "open source," or "friendly source" as long as there is no trade mark issue and the intent is not to mislead consumers or create unfair competition among competitors. As far as I can tell, the term or phrase "open source" is generic, and often used as a marketing phrase in much the same manner as "diet soda" is used. I cannot imagine what the legal basis would be to bring a fraud claim on the use the term "open source."
On the other hand, I think the member organizations representing the open source community as well as vested individuals might have some obligation to keep the press informed of what their view is of what it means to develop and distribute open source/free software as that term is used in the open source community. In this respect, I see troubling uses of the term "open source" in the press when covering the open source community far more frequently than I notice free-riding software developers using the term as a marketing scheme that one might say is inappropriate, but hardly illegal. OSI's OSD is a different question entirely, but that is matter for OSI, although the issue is not whether someone "violate[d]" the OSD. There is no legal harm arising from "violat[ing]" a definition. More important, the OSD needs some helpful re-working, and it may not be unexpected that some open source projects have significantly diverged from the OSD. Rod Rod Dixon Visiting Assistant Professor of Law Rutgers University Law School - Camden www.cyberspaces.org [EMAIL PROTECTED] > On Friday 30 November 2001 03:31 pm, Tina Gasperson wrote: > > ACARA (http://www.openchannelsoftware.com/projects/ACARA) > is a program > >originally developed by NASA. ACARA is now being handled by > the Open > >Channel Foundation (http://www.openchannelsoftware.com). ACARA's > >license terms > >(http://www.openchannelsoftware.com/project/view_license.php? group_id=1 >29&l >icense_id=20) violate at least three points of the Open Source definition > (AFAIK, IANAL), yet the Open Channel Foundation claims all of the software > it distributes is open source. > > Is this OK from a legal standpoint? It's legally okay to use the term "Open Source Software" without getting permission from anyone. But some uses of "Open Source Software" can be considered misrepresentation or fraud, activities that are illegal. The software they are selling is not Open Source Software, yet they claim that it is. That's fraud in my book. There's no trademark on the term "wool carpet", yet if I sold you a wool carpet that was really acrylic, I would be in a world of legal hurt. -- David Johnson ___________________ http://www.usermode.org pgp public key on website -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3