» Publishers, Monetize your RSS feeds with FeedShow: More infos (Show/Hide Ads)
The ability to reverse engineer a product and the amorphous fair use privilege are not inviolate. They can be waived or supplanted by agreement. Contracts control subject only to ordinary standards that might find them anti-competitive or unconscionable in very limited cases.
The interface between contracts and property rights laws such as copyright or trade secret law has sometimes been controversial, but it should not be. A person who might otherwise have a privilege to act in a certain manner can waive that privilege. Indeed, many of the most fundamental privileges in U.S. law can be waived by agreement. So too the privilege to make copies for purposes of some forms of reverse engineering and most other forms of "fair use."
"Reverse engineering" is a process by which the owner of a copy or a product takes a product apart in order to discover how it works or what it contains. For trade secret law, this is a recognized, lawful means of discovering previously secret designs or technology embodied in the product that has been sold on the open market. It has been an important practice in industries where much technology is not protected by patents or copyrights and where products are distributed by outright sales.
But - what if reverse engineering requires making copies of a copyrighted work? Different story. The copies invade the copyright owner's exclusive rights and are permitted under copyright law only if fair use. These copies are fair use in some cases, but not all cases. In general, the cases allow making copies by owners of the copy and only if and as needed to obtain information not protected by copyright.
What if the contract precludes reverse engineering? Should that contract be enforced? Of course. If a person can agree to waive fundamental privileges, such as against self-incrimination, certainly a person can contractually waive the privilege to reverse engineer a product or engage in other acts that might be described as fair use. While some lawyers, and some well-funded organizations such as the EFF, claim that reverse engineering is an inalienable right, that viewpoint is not supported in policy or in copyright law and is not accepted by courts in the U.S.
Some federal statutes protect limited reverse engineering in some contexts, but they do not override contracts. In Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079 (9th Cir. 2005) the court reached that conclusion about the SCPA. The court held that a claim for interference with contract was not preempted. The contract limited licensees to being the sole user of the chip, but the defendant allegedly induced a licensee to allow reverse engineering by it. The court commented: "Most courts have held that the Copyright Act does not preempt the enforcement of contractual rights. We find the logic of these cases persuasive here." The contractual agreement provided a separate source of obligations independent of the property rights rules contained in the statute.
Other courts have reached similar conclusions regarding the copyright law issue. For example, in Davidson the Eighth Circuit held that a shrink wrap license precluding reverse engineering did not conflict with copyright laws. A similar result occurred in the Baystates case.
Copyright sets out property rights, but contracts can establish different obligations, different restrictions and, in this context, can waive privileges otherwise available under copyright law.
This sets an appropriate boundary. U.S. law explicitly recognizes the difference between contract obligation and property rights. The agreement does and should control as to the obligations it sets out and the waivers it implements between the parties to the contract. While the EU Software Directive and the 2002 Official Draft of UCITA override reverse engineering clauses in narrow instances, the overall thrust of case law and practice is properly aimed at enforcing contracts.
The policy is simple: unless there is fraud, unconscionability, or clear violation of competition law, parties and more generally the market should be free to make contractual arrangements suited to an actual market unencumbered by pervasive regulation.
I have accepted the interim deanship at the University of Houston Law Center. I am eleated at the opportunity this creates. With the help of others, this will be an exciting time. I attach my first thoughts.
Today marks the first day of my deanship -- and I want to use the occasion to share my view of the road ahead, and the work that it will entail. I will tell you what I told Provost Foss: the UH Law Center is on the cusp of great achievement.
This is a great school with great resources in people, including students and faculty. We are gifted with an outstanding faculty and student body, as well as institutes of Health Law & Policy and Intellectual Property & Information Law that hold international prominence. We will continue to excel.
In short, we have the raw material and the resolve to push this school into the higher ranks of the nation's top law schools. My friend and predecessor Nancy Rapoport believed very deeply in the potential of our school, and I am honored to follow her as dean and to continue expanding on the initiatives she pursued.
Every dean has their own distinctive approach. Here's what you can expect from me. I am pragmatic, oriented to understanding and explicating the role of law and lawyers in society, and I am committed to continuing to making this Law Center among the best in academia as well as a major factor in the practical practice of law. I am committed to action and achievement. I applaud people who target goals--and invest the necessary work to achieve them. I believe in allowing our highly skilled faculty, administrators and students to maneuver and achieve.
Those are the simple rules, and I have no doubts about our eventual success. Our advocacy teams routinely score national and international wins. Our faculty are making extraordinary contributions. Our Health Law Institute is the top program in the country. Our Intellectual Property and Information Law is among the best in the world. We have nationally famous programs in criminal justice and consumer protection law.
The U.S. Supreme Court rendered its much-anticipated ruling in Ebay v. Merchexchange and the U.S. remains safe for property rights, although more complex. The Court held that injunctions are an appropriate remedy for infringing a patent, but not in all cases.
The Court unanimously ruled that a traditional four-factor test for a permanent injunction, after a trial finds that the defendant infringed, applies in patent cases as it does in other cases. That result, while not surprising since it puts patent cases in line with other cases, creates the potentially unfortunate result that an owner of property who proves a defendant is infringing might not receive judicial assistance in ordering the defendant to stop. This does not mean that the defendant gets a license to continue infringing; it simply means that the patent owner's remedies might not include a permanent injunction unless the traditional test is met.
This might be a distinction without a difference given that if the same infringing conduct continues, that infringement is also actionable, And in the subsequent action, trebled damages might be allowed and the issue of whether infringement is present may be a slam dunk (i.e., already foreclosed by the first ruling).
In any event, the Court laid to rest two extreme theories about IP remedies, but did not announce any striking change in IP law. One theory was what Ebay and its amici (an organization comprised of Microsoft, Intel, and Micron, among others) described as "automatic injunction"- permanent injunctions automatically issue on a finding of infringement except in unusual cases. Justice Thomas writing for the Court rejected the automatic injunction rule because it they ignores the traditional four-part test which demands an equity analysis to determine if damages alone are an adequate remedy or whether equity requires an injunction too. The "automatic injunction" approach treated patents differently from other property. Justice Thomas found no support for that in the statute. This gave a partial win to anti-rights proponents, while not rejecting the idea that a typical outcome is to enjoin future infringement. Nicely done!
The other rejected theory used in the District Court, categorically precluded injunction in many cases, including where the patent owner does not itself exploit the patent (such as by bringing to market a product utilizing the patent) but simply seeks to license it for royalties. Merchexchange had no business other than licensing its patents. The Supreme Court unanimously rejected the district Court approach. Justice Thomas said:
"[The] District Court [held] that a "plaintiff's willingness to license its patents" and "its lack of commercial activity in practicing the patents" [established] that the patent holder would not suffer irreparable harm if an injunction did not issue. But traditional equitable principles do not permit such broad classifications. [Some] patent holders ... might reasonably prefer to license their patents, rather than ... to bring their works to market themselves. [We] see no basis for categorically denying them the opportunity to [satisfy the traditional test]."
Indeed, persons who infringe instead of obtaining a license, are disrupting the patent owner's right to choose the licensees and the rates at which it will license its property. The trial court was captured by a notion that property rights should be restricted if not used commercially. This would be like saying that, because I offer to rent my building, but leave it unoccupied if no one agrees to the rent, I am not harmed if a squatter takes over the building and pays damages. I have a right to control my own property and make decisions about it, including allowing it not to be used. A rule that permits squatters use of intellectual property creates a compulsory license, which Congress has repeatedly refused to do, except in narrow cases.
Some rights owners feared that Ebay would enforce the trial court's approach, but the Court rejected it. This was a win for, and a reaffirmation of, property rights.
So, what now?
The "four part test." To obtain an injunction, a plaintiff must demonstrate: (1) that it suffered or will suffer an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
How does that test work if the defendant infringed the property right and is likely to continue to do so? In most cases, the balance favors an injunction because mere monetary damages are unlikely to remedy the harm of having a squatter continuously infringe the property rights. Just because the patent owner is willing to license the patent does not mean that a stranger can force a license to the stranger by infringing and paying damages.
What of the case where the patent covers only a tiny part of a much larger process or product? Ebay and its supporters argued that no automatic rule should apply because the balance of hardships weighs in favor of allowing the innovative technology or product to continue to be sold. Arguably, that now becomes an issue.
What if a court does not grant an injunction? Can the defendant safely continue to use the patented property (i.e., can a defendant infringe forever as long as he pays simple damages)?
Not at all.
Damages do not buy a license to infringe in the future. Indeed, a subsequent lawsuit for subsequent infringement should be a simple one - unless the defendant's conduct changed, the prior ruling resolves that the conduct infringes. Indeed, damages may be enhanced or an injunction deemed proper because the defendant knew it was infringing because of the prior court decision.
So, what happened here? Very little. In my view, the most important result is that the Court affirmed the right of a property owner to prevent use of its property in most cases. The risk avoided by the Court was that this case would be a vehicle to diminish the strength of patents and copyrights as property. The Supreme Court got it right by rejecting that result.
A further interesting thing about this unanimous ruling is that seven (of nine) justices also signed onto two concurring opinions. Chief Justice Roberts, joined by Scalia and Ginsburg, suggested that, consistent with historical practice, courts should still issue injunctions in most cases. Justice Kennedy, joined by Stevens, Souter, and Breyer, suggested that courts should consider "rapid technological and legal developments in the patent system" and specifically argued that three factors might alter the four-factor test: (1) the patent holder uses its patents "primarily for obtaining licensing fees"; (2) the patent covers only a small part of the infringer's product and the threat of injunction is "simply for undue leverage in negotiations"; and (3) the patent is a business method patent that is vague or of "suspect validity." Justice Kennedy, thus, confused this case with issues about preliminary injunctions. A finding of infringement, in most cases, is a finding that the patent is valid. Continued use of a patent in even a small part of a product is still infringement, subject to treble damages.
But under all three opinions, injunctions will continue to be a common remedy for infringement.
The Houston Intellectual Property and Information Law Institute has recently launched a new website providing information about selected cases and articles relating to licensing transactions.
The site contains brief references to several hundred reported decisions on intellectual property, online, and software licensing. It will be updated periodically and users are invited to suggest new cases or articles to be included on the site. The site also provides summaries of recent articles on contract law and licensing.
Please feel free to visit Licensing-contracts.org.
No, not unless the copyright owner permitted or invited that. The idea that downloading a file is permitted because it is so easy on Internet is simply wrong. Downloading is copying and infringement. Indeed, it can have massive adverse effects on copyright owners.
One myth on Internet is that so-called personal or private uses of copyrighted works are fair use. It is not clear where this image cam from, but it is not true. Think about your reaction if I told you that I have a right to borrow your car whenever I like, so long as I don't sell it to someone else. You would not be happy. Copying does not become fair use simply because the person making the copy does not resell the copy.
To be clear, however, if copyrighted files have been posted on Internet by the copyright owner (or with its permission) and the context of the posting invites copying, downloading a file might be covered by an implied or express license depending on the circumstances. In the absence of express or implied permission, however, downloading is infringement unless fair use doctrine applies.
In cases where the downloader engages in further copying and distribution of the work for profit, the case against fair use is quite clear and consistent. See Micro Star v. Formgen Inc., 154 F3d 1107 (9th Cir. 1998) ; Storm Impact, Inc. v. Software of the Month Club, 44 USPQ2d (BNA) 1441 (ND Cal. 1997). There is no viable argument that making multiple copies and distributing them is fair use simply because the work appeared online or simply because the downloader does not charge for the copies it makes and distributes.
Arguments that downloading is fair use center on downloading for personal use, rather than reuse for redistribution. Courts properly reject arguments that downloading for personal use constitutes fair use. "Fair use" refers to uses that do not harm the copyright owner. This is typically not the case where the defendant merely downloads for its personal benefit the entire copyrighted work without authorization. Indeed, as the court Napster observed, obtaining value without compensating the copyright owner can be commercial use of a work, even if the downloading party did not sell the unauthorized copy for a profit. A&M; Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001)
The question is not whether the one copy made by the one defendant of the one work harms the copyright owner, but whether allowing millions of persons to make one copy without compensating the copyright owner would be harmful. Usually, it would. Recently, in BMG Music v. Gonzales, 2005 WL 3336532 (7th Cir. 2005), the Seventh Circuit in an opinion by Judge Easterbrook made this explicit. The defendant there was an individual who, over a period of time, had downloaded over one thousand music files - supposedly to review the files to make a decision about whether or not to purchase a copy. The person claimed that copying for purposes of review was fair use because it did not affect the market for the work. The court rejected this. Judge Easterbrook observed:
As she tells the tale, downloading on a try-before-you-buy basis is good advertising for copyright proprietors, expanding the value of their inventory. The Supreme Court thought otherwise in Grokster, with considerable empirical support. As file sharing has increased over the last four years, the sales of recorded music have dropped by approximately 30%. Perhaps other economic factors contributed, but the events likely are related. Music downloaded for free from the Internet is a close substitute for purchased music; many people are bound to keep the downloaded files without buying originals. That is exactly what Gonzalez did for at least 30 songs. It is no surprise, therefore, the only appellate decision on point has held that downloading copyrighted songs cannot be defended as fair use, whether or not the recipient plans to buy songs she likes well enough to spring for.
Arguments that the copyright owner is benefits from uses that it never authorized rightfully fail. The right to choose a method of developing or exploiting a copyrighted work resides in the copyright owner. The claim, by another party, that its use of the work benefited the owner attempts to turn the principle of property rights upside down. Judge Easterbrook commented:
Although BMG Music sought damages for only the 30 songs that Gonzalez concedes she has never purchased, all 1,000+ of her downloads violated the statute. All created copies of an entire work. All undermined the means by which authors seek to profit. Gonzalez proceeds as if the authors' only interest were in selling compact discs containing collections of works. Not so; there is also a market in ways to introduce potential consumers to music.
As noted by Judge Easterbrook, the Supreme Court's ruling in the Grokster decision similarly is based on an assumption that downloading (copying) files is not fair use. Metro Goldwyn Mayer Studios, Inc. V. Grokster, Ltd., 125 S.Ct. 2764 (2005).
The court in BMG affirmed an award of statutory damages at $750 per infringed work. Ooooops! Lets try one last quote to make the point:
Limited copying may be permissible for certain noncommercial, educational purposes, taking into account the nature of the copyrighted work and market considerations. These factors, however, weigh against application of the fair use doctrine to cases involving Internet piracy. PWA allowed members to obtain unlawful, digital duplicates of thousands of commercially available software programs. The government also presented expert testimony on the harmful effect of Internet piracy on the potential market for the copyrighted work, though we think this point is fairly obvious. It is preposterous to think that Internet piracy is authorized by virtue of the fair use doctrine.
U.S. v. Slater, 348 F.3d 666 (7th Cir. 2003)
The Supreme Court in Grokster established an action for "inducing" copyright infringement. This changes the context of debate between "rights enforcers" and "rights restrictors" and benefits protection of property rights. But the rule raises questions about its scope and how it affects other relationships.
The Grokster site and commercial system is history. Its brief existence will be a minor historical blip. But the Supreme Court decision is a major event.
If copyright is to balance interests of copyright owners and others, it is important that law and technology not shift the balance too strongly against copyright owners. Grokster responded to this risk by establishing the tort of inducing infringement. Under this rule, a company or person can be liable indirectly even though its acts were not themselves infringing and even though it did not substantially contribute to infringement, so long as the person induced infringement by others.
The systems set out by Grokster, Napster and others were designed to use new technology to exploit a weakness in copyright law protection. That weakness, it was argued, allowed a company to make a system available for infringing conduct and promote it in that way without liability, so long as the technology or service had non-infringing uses. While that was probably never true, the Supreme Court clearly closed that door in Grokster.
What does the new tort mean?
While the copyright rule is new, the idea that you can be liable for inducing wrongful behavior has a long history in law, including in intellectual property law. It has been referenced in the Patent Act since 1952 ("Whoever actively induces infringement of a patent shall be liable as an infringer." 35 U.S.C. § 271(b)). The patent statute refers to "active" inducement, a term the Supreme Court did not use in describing the copyright law rule. While cases in patent law provide some guidance, the circumstances involving inducing patent infringement are different in many ways.
The important thing is that, while the Grokster decision arose in a very clear, mass-market setting, its implications are far broader than in the mass market. Indeed, Grokster involved a licensing system. Everyone dealing with intellectual property needs to understand the implications of this decision.
Let's talk some basics.
First, as with any type of indirect infringement (e.g., being held liable for what someone else does), there needs to be direct infringement. You can't be held liable for inducing wrongdoing when no wrongdoing occurred. But the induced target does not have to be a specific person. Selling, licensing, or giving away a product with intent to induce an infringement which then occurs is infringement by the distributor. This is true even if most customers or licensees do not infringe.
Second, the inducement must have some connection to infringement that occurs. Saying at a cocktail party that everyone should copy Microsoft Word is not inducement unless the comments, in context, lead to actual infringement. There must be inducement, not a mere desire to induce.
Third, inducement is different from substantially contributing to infringement. The two overlap, but are different. The difference lies in intent, the words and the motivations involved. For inducement, it is not necessary that the inducer substantially contribute to enabling the infringement. For inducement, you must intend to induce the conduct that constitutes infringement and the infringement must in some way be said to occur because of your acts. The patent law cases are unclear on whether you must know that the acts infringe a patent, as compared to knowing what acts are being induced, but that difference will seldom be relevant in copyright contexts.
Compare inducement to its cousins - other forms of indirect liability in copyright law:
· Inducement liability: acts or words that manifest an intent to induce others to conduct that infringes when at least some of those others actually infringe in part because of the acts or words.
· Contributory infringement: acts that substantially contribute to an infringement by others where the actor knows or has reason to know that infringement is occurring, the infringement(s) in fact occurs, and the person does not act to stop its contribution.
· Vicarious liability: obtaining a direct or indirect financial benefit from acts of infringement by others where you have the right and ability to control that conduct.
It is likely that conduct that constitutes contributory infringement or vicarious liability often constitutes "inducement." But there are acts that constitute inducement and meet neither of the other two causes of action. That is, you can infringe by inducement even if 1) you lack the control and financial incentive for vicarious liability, and 2) you did not substantially contribute to infringement with knowledge that it was happening.
What does this mean? It means that the infringing conduct involves intent, rather than control or impact. The Supreme Court explained that there was no social purpose served by acts or expressions aimed at causing infringement, nor is there a social harm involved by holding the actor liable for infringements reasonably attributed to or caused by its inducement. In other words, like other protected social and property interests, copyright merits protection against acts that cause and enable others to take actions to harm the legally protected interest.
Simple enough. But it is on the issue of intent that the rubber meets the road. Inducement is intent-based liability. Proving intent is the key. This will often (not always) be a question of fact. Intent can be proven by circumstantial evidence (e.g., something other than you standing up and shouting it to the mountains). Here are a few guidelines:
· Distributing a product that has both infringing and non-infringing uses: Results in inducement liability or not depending on how the product is marketed. Marketing will be viewed in context, rather than simply in terms of what is directly said. Distributing a "copy" program without more is not inducement.
· Licensing a technology: Inducement liability hinges on the nature of the license and the authority of the licensor. Some licenses do not grant a "right" to do specific acts, but merely a promise that, if you do those acts, I will not sue for infringing my rights. Whether or not your acts infringe others' rights is not pertinent.
· Indemnity clause in a transfer: Is not in itself proof of intent to induce, but might be so in context where the goal of the transferor is to cause the infringing acts to occur.
· Distributing a technology that allows the user to circumvent copy protection technology: This is now at risk under copyright law. It has always been at risk under DMCA and the federal Communications Act.
This new law requires reconsideration of licensing, advertising and other business practices.
Ray
The desire of OSI to curb "license proliferation" by changing its policies and the effort of FSF to draft a new version of GPL should cause many to pause. Why are these changes being considered? Is it finally time to understand FSOS on terms other than the communities own, self-defined terms given that those terms may change over time? Is it time to recognize 'Free Software" and "Open Software" (FSOS) as inherently a heterogeneous phenomenon that is part of a continuum of software licensing styles, rather than entirely separate and apart from other means of software distribution? I think so.
Why does license proliferation occur and is it bad?
I think that it is actually inevitable and a manifestation of the maturation of the FSOS movement. It is an assertion of productive and healthy individualism and, arguably, reflects an expansion of the core ideas of open source outside the narrow confines of its own limiting doctrines. Except in a closely regulated world that would be inconsistent with the politics of many involved in open source, individualization of approaches around or related to core principles is an inevitable process.
But some do not agree. Among those who disagree, there are different explanations for why proliferation is bad. OSI might prefer to curb "license proliferation" at least in part because the expanding number of licenses creates a disincentive for others to use open source (creating a daunting morass of options) and a sense of anarchy; this builds a feeling of unease that inhibits broader acceptance of the movement.
Certainly, license proliferation is a nuisance, but more to the point, one effect is that the proliferating licenses create incompatibilities - the inability of one user to concurrently comply with the terms of two separate licenses. Larry Rosen, former General Counsel of OSI comments succinctly: "As a license musician, I'm not bothered as much by "too many notes" as I am by the fact that the notes aren't always in the same key. License proliferation has become an important problem because software under those different licenses cannot always be played consistently and compatibly everywhere. Perhaps ... we should throw out the off-key notes?"
But, of course, these incompatibilities are the result of choices made by licensors that one set of license restrictions are inappropriate for their work, while another set are appropriate.
OSI may attempt to curb proliferation through control of OSI certification standards; narrowing qualification criteria is certainly one accepted purpose of managing a certification mark. But in a community or a philosophy defined by its licenses, changes of this sort effect change in the philosophy itself.
The point of discussion here, however, is not that FSOS members or groups should (or should not) adopt a different definition or that their current self-description is wrong. Everyone and all groups are free to describe themselves however they like. The point is that others are also free to reject the description and to search for a more useful way of describing and understanding the software community. The terms of a group's self-description may not be the best way of understanding the group's role in the broader context of the software industry.
The FSOS movement today is self-defined. "It is" what it says "it" is. Actually, it is defined by its leaders in their response to various licenses. The Free Software Foundation (FSF), for example, describes various licenses as "free" or not "free", "open" or not open, based on standards its leaders accept. Why should non-members care into which category a license falls? What is the relevance of OSI certification?
There are many answers to these questions. But none involves a conclusion that being within the definition makes one inherently different in all respects from other products, licenses, or persons in the overall software or technology communities, except for the label itself. Indeed, it is not necessary to search far to find products and licenses that are not approved or certified by FSOS groups, but that incorporate terms corresponding to many or most of the "principles." What is the position of a person who releases source code under a license allowing modification and redistribution, but limiting uses to non-commercial or educational uses? This is neither a free, nor an open source license by the definition of those groups, but except for the field of use limitation, the license and marketing may correspond to all of the fundamental principles of advocated by the community.
Self-defined philosophies are common. Indeed, joining a group is inherently an act of self-definition for the new member. Self-definition in open source reflects the FSOS movement's philosophical, some might say quasi-religious, core; it corresponds to the ordinary desire of groups to create a self identity by allowing members to say "we are we" and "they are the others."
But what occurs when a person adheres to the core philosophy, but not to every detail of the doctrine? From the perspective of the group itself, they can accept the deviation or exclude that member - "perfect adherence to perfect doctrine is a required step in continued membership." While attractive to some extremists, a platonic view of doctrine that excludes all non-conformities is seldom followed in large organizations, even religious organizations. While Catholic doctrine rejects birth control and abortion, for example, many of its members support both. The church is free to reject or terminate membership of those people, but such a use of official doctrine does not often happen. A de facto coexistence exists because there is acceptance of more basic principles.
Given this, what should be the approach of a person who wants to ask broader questions than members of a self-defined group? The answer depends on what question is asked. If the issue is "how do Christians as an overall group view birth control", the proper approach is not to question Catholics only. Instead of asking what is the effect of FSOS and which licenses are part of it, consider asking "what role does, or should, the idea of releasing code and allowing modifications and distribution of a product play in the software community?" Asked in this way, one would not draw a line at the boundaries of approved FSOS licenses. Rather, the line would be drawn based on more fundamental or at least different premises. For example: what are the various ways in which modern practices reflect the idea that releasing source code and allowing changes and redistribution of it is one way of developing software?
This change in focus is not an academic exercise. Let's assume that making source code available with the right to modify it is a good way of improving software. Accepting this assumption, how should one promote that goal? Is it best promoted by the exclusionary doctrines of FSF and OSI? Is it better promoted by less exclusionary methods and more acceptance of choices voluntarily made by others that promote the goal but not every doctrinal detail? A colleague of mine, Greg Vetter, has argued and many others believe that the viral or reciprocal provisions of many FSOS licenses (including especially the GPL) discourage or impede adoption of some of the basic themes of the movement, rather than helping achieve them. There is at least enough evidence of that to ask the question of whether a different model might be better to achieving the goals of the movement itself.
In fact, there are many models other than the "approved-disapproved" self-definition of membership or compliance. One illustration is in the Creative Commons project. That project has a goal of encouraging more creative material to be made available under terms that assert less exclusionary rights as to the content. The project approaches that goal by setting out a platter of licensing options attaining differing levels of balance between openness and control. This platter of options, then, serves as a framework that can be used by authors who desire to achieve a degree of openness; but those authors might not otherwise understand how to use a licensing model to achieve their personal goals. The model has been described in terms of "some rights reserved" as a counterpoint to the frequently seen "all rights reserved" label. The options, however, range from complete dedication of a work to the public domain (a step not treated by the FSF as qualifying as "free" software) to some relatively restrictive licenses (e.g., precluding commercial use).
One difference between other membership groups and FSOS groups is that people do not become members of FSOS, but licenses do. That is, the same person or company might distribute some software under a license approved by FSF, while distributing other content or code under completely non-compliant licenses. This means, ultimately, that software authors make a choice in adopting or not adopting FSOS for their works and must make that choice anew with each distribution they make, as to that distribution. Today, it is quite common to see the same software released under an FSOS license, and under a different license that does not meet FSOS criteria.
The companies include Apple, Sun Microsystems, IBM, and others. More recently, Microsoft announced a package of license alternatives under a "shared source" program, which, like the Creative Commons approach, includes different levels of restriction and of openness.
The temptation might be to evaluate these initiatives solely in terms of whether they conform to FSOS doctrine. But in a broader perspective, the deployment of these licensing approaches is important even if they are not granted strict doctrinal approval. No law requires compliance with FSF or OSI doctrine in order to be part of a broadening sense of options re how software can and should be distributed.
But we can get to that realization only by recognizing FSF and OSI as part of a broader theme. In that broader context, other options and approaches are important and valuable, even if they do not fully conform to strict FSOS doctrine. It is in that broader context that the "movement" and the "community" need to be understood.
Indeed, there are many in the community who understand and advocate this broader approach. Russell Nelson, a leader of the open source and OSI certification process, in announcing OSI rejection of a newly proposed license (the OVPL), commented: "It is unfortunate that some licenses which almost exactly comply with the open source definition will not gain our approval. There must be a line somewhere, and after careful and thoughtful review we find that clause 5 of the OSD requires that we draw that line between the OVPL and OSI certification. We encourage everyone to release as much of their source code under whatever terms they are comfortable. They could call it Shared Source as Microsoft does. We encourage the use of the term "Source Available" software since the source is available but not open for all uses."
I completely agree with this broader perspective, regardless of labels used.