AOL Merger and Netscape Public License

[James Love <love@cptech.org>]

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Info-Policy-Notes | News from Consumer Project on Technology 
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November 24, 1998

       The Netscape Public License and the AOL Merger
       Jamie Love, Nov 24

This is a brief note about one aspect of the AOL/Netscape merger --
Netscape's "Open Source" experiment with the source code for its
browser.  Tonight I was asked to look at the Netscape Public License
(NPL), to see what AOL could do to the Netscape code if the merger goes
through.  It was pointed out that AOL could take all the contributions
made by the volunteer community and release a version of the browser,
with the Netscape trademark, under a different license agreement.  
There are several sections related to this, but especially the
Amendments V.2 and V.3. 

I am not a lawyer, and will stand corrected by a more informed person if
I am wrong about this.  But it does seem as though AOL could "take back"
the browser from the Open Source experiment, in the following way.  AOL
could not retrieve the code that has already been released, including
any modifications that anyone has made, but it could make any future
releases be protected under a new license agreement, including a
non-free and non-open license.  This would include all of the previous
modifications to its code by volunteers.  Indeed, AOL could continue to
"take" future modifications to its release code by third parties, since
they would still be covered under the terms of the NPL, particularly
Section 3,
"Distribution Obligations."

As a practical matter, users could not use any new features added by
AOL, without agreeing to the new license terms.  I found it interesting
that Mozilla.Org says that Netscape has been funding more than 100 full
time positions to work on the development of the Communicator code, and
it is not difficult to imagine a case where such new features would
become important.

It is also interesting to compare the Netscape Public License (NPL) to
the Berkeley freeBSD license and the GNU Public License (GPL).  Under
the Berkeley license, the code and all modifications would be in the
public domain, subject to embrace and extend, but by anyone (See
http://www.freebsd.org/copyright/freebsd-license.html).  Under the GPL
or the LGPL (See http://www.gnu.org for details), all the code and
modifications would not be subject to re-license as a non-free non-open
product.  This underscores Vinod Valloppillil's analysis for Microsoft
in the Halloween documents that the GPL provides greater assurances that
the code will continue to be available in the future.  And in the wake
of the AOL merger, it illustrates the shortcomings of the NPL. 

I welcome corrections or comments on this issue.  

  Jamie Love <love@cptech.org>

CPT's web page on this merger is 
http://www.essential.org/antitrust/mergers/aol-ns/index.html

The Netscape licenses are on the web at:  http://www.mozilla.org/NPL

Here is Section V of the Netscape Public License

V. Use of Modifications and Covered Code by Initial Developer. 

V.1. In General. 
The obligations of Section 3 apply to Netscape, except to the extent
specified in this Amendment, Section V.2 and V.3. 

V.2. Other Products. 
Netscape may include Covered Code in products other than the Netscape's
Branded Code which are released by Netscape during the two (2) years
following the release date of the Original Code, without such additional
products becoming subject to the terms of this License, and may license
such additional products on different terms from those contained in this
License. 

V.3. Alternative Licensing. 
Netscape may license the Source Code of Netscape's Branded Code,
including Modifications incorporated therein, without such additional
products becoming subject to the terms of this License, and may license
such additional products on different terms from those contained in this
License. 

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