Google’s WebM license could undermine the meaning of ‘open source’

As Apple and Adobe sparred over the inclusion of Flash in the iPhone OS, supporters of the emerging HTML5 standard — including Apple, Google, and Microsoft — touted the H.264 video codec specified in HTML5 as a reason that Flash is unnecessary. But H.264 is proprietary technology that requires a license for use and redistribution, which effectively means Mozilla can’t adopt it for the open source Firefox browser. So Google has come up with WebM, an open and royalty-free media format based on the VP8 video codec.

Problem solved? Not exactly. After examining the software license, open source pundits have questioned whether WebM should be classified as open source software. But the larger question is why Google allowed this debate to occur in the first place and what it means for your organization when evaluating an “open source” product.

[ Check out Savio Rodriguez’s update on the WebM issue: “Google responds to WebM license backlash.” | Keep up on the current open source news and insights with InfoWorld’s Technology: Open source newsletter. ]

Google has positioned WebM as an open alternative to the popular H.264 video codec. Browser vendors such as Microsoft, Mozilla, Opera, and of course Google have signaled support for WebM based on its open nature. The royalty-free angle surely helped in this decision. As would be expected of an open source project, Google released the source code to WebM.

Open source in theory or in practice? But Google did not, however, use an Open Source Initiative (OSI)-approved license for WebM. As such, at least in theory, WebM cannot be considered open source software under the open source definition (OSD). This is imporant, as ComputerWorld UK columnist and OSI board member Simon Phipps wrote:

Many government and business policies around the world point to OSI when defining what is acceptable as “open source.” The OSD remains the gold standard and we all have much to lose if it is subverted.

The WebM FAQ explains that Google desired to use a standard BSD or Apache license, but ending up using a BSD-based (rather than standard BSD) license to meet Google’s needs:

The Apache license is somewhat similar in effect to this license. The main reason it was not used is that filing patent litigation against someone using the Apache 2 license only terminates patent rights granted under the license. Whoever filed the litigation would still be able to use the software they are suing over and still be in compliance with the license. This [WebM] license, however, terminates all rights when patent litigation is filed. Rather than modify the Apache license to meet our needs, which would probably lead to significant confusion, we went with the simpler approach of a BSD style license plus patent provision.

Bruce Perens decided to submit the WebM license to the OSI for review and approval as he would like to create a derivate work based on it. Google’s open source programs manager, Chris DiBona, responded by asking the OSI to delay a review of WebM:

Please hold off on submitting this while we determine certain compatibility issues internally at Google. … I would also point out that we’re uncomfortable with making license proliferation worse and, in the event we do submit it, we will want a couple of changes to how OSI does licenses:

1) We will want a label explicitly deterring the use of the license. 2) We will want the bod (board of directors) list archives open for any discussions of webm. We are not comfortable with OSI being closed. 3) We need to know OSI’s current corporate status.

Responses from Perens and Phipps to DiBona quickly addressed Google’s three requirements as being nonissues.

Suppose for a minute that Microsoft has followed Google’s approach with WebM licensing, and furthermore required the OSI agree to “changes to how OSI does licenses” as a precursor to submitting a license for OSI review and approval. Microsoft would have been lynched by virtually every open source pundit.

Google is treated quite differently by open source pundits because the company contributes much to open source projects and generally tries to release source code under an OSI-approved license whenever possible — meaning, when it suits Google’s business needs.

Wither the “open source” brand? There is, however, a larger issue at hand. As open source becomes mainstream, vendors are under pressure to market their offerings using the “open source” brand to the highest degree possible without misleading customers.

For better or worse, an OSI-approved license has become the de facto requirement for vendors calling themselves or their products “open source.” When Google, one of the largest supporters of open source, goes out and purposefully circumvents the OSI, what signal does this send to other vendors? How important is using an OSI-approved license likely to be in the future if other vendors follow Google’s lead?

If an OSI-approved license is no longer the precursor to using the “open source” brand, enterprises and — more important — developers (who often make the initial decision to adopt an open source product) risk implementing purported open source software that may be at odds with the enterprise’s legal policies.

I completely understand that Google felt its business needs were not met using an existing OSI-approved license — even if some suggest otherwise. I also understand why Google would want to limit its patent offer in the WebM license until the user decides to sue another user for patent infringement related to WebM usage. Google has every right to make business decisions and use a license closely aligned with those decisions. However, Google, for all its open source credibility, should be expected to work with — not around — established open source processes. If the process is broken, help fix it. Don’t make it worse.

Because of Google’s WebM actions, it becomes even more critical for you to validate that software carrying the “open source” marketing badge aligns with your expectations.

Follow me on Twitter at SavioRodrigues. I should state: “The postings on this site are my own and don’t necessarily represent IBM’s positions, strategies or opinions.”

This article, “Google’s WebM license could undermine the meaning of ‘open source’,” was originally published at InfoWorld.com. Read more of Rodrigues et al.’s Open Sources blog and follow the latest developments in open source at InfoWorld.com.