...the download requires me to accept a non-open-source license that severely restricts what I'm allowed to do. I've heard Sun claim that Netbeans is open source, but that doesn't seem to be true.

So I went to the NetBeans download page, to see what he was talking about. And took a look at the license, and said to myself..."Whoa...this is a major screw-up!" Here was, indeed, this rather scary legal text. It didn't look like an open source license to me either. But it's what you agree to when you download NetBeans builds. Did I scroll down and go through the whole thing with a fine toothed comb? Nope. Neither did anybody else - that's the cautionary part of this tale.

The license text he's referring to is this. It's actually the same text you agree to when you download the JDK. And indeed, it doesn't look anything like an open source license. And I wrote to Elliotte, to mention that,

• I know for a fact that that license agreement is only intended to apply to libraries like javac and JavaHelp that NetBeans links to at runtime, not NetBeans itself, and
• It's the same license agreement that you agree to when you download the JDK, so how could someone be okay with agreeing to that for the JDK but have a huge problem with the same license when it comes to some libraries their IDE uses?

The license agreement is a bit of legal boilerplate. It is the result of a bunch of folks like me complaining that everything you download from Sun had its own unique, slightly different license agreement, and why couldn't we just have a generic agreement for most things and simplify everything. It worked. It got simplified. And it actually was done correctly, as you'll see below. But the document is written so perfectly backwards for an open source site that it's almost impossible to tell that. It definitely means I should be careful what I wish for. Correct doesn't necessarily mean human-readable.

In the meantime, Weiqi Gao picked up on what Elliotte had written, and repeated it, but his blog restated it as fact, saying flatly that NetBeans isn't open source. And that's the danger of this sort of thing - misinformation spreads, and nobody necessarily goes back and checks it. And we were all, myself included, not reading the whole thing. It just smelled bad, and we all said, "Yup, smells bad."

But the license text doesn't look like an open source license at all. In fact it isn't one. How in the world could that be kosher? I asked our legal folks about it, and they replied, in essence, "What's wrong with it? The license specifically mentions what it covers."

How could a lawyer think that it's perfectly clear that this agreement only applies to the libraries that are linked to by NetBeans, and I and everyone else would see something completely different? I put on my thinking cap, and tried to think like a lawyer for a minute. It hurt like hell and I took my thinking cap off. The answer is really an impedance mismatch in the kind of reasoning an engineer uses when he or she says "Let's see how this software is licensed," and the reasoning of a lawyer thinking about a legal agreement. If you're a lawyer, you look for the holes first. So I went back and really read it this time. For the missing piece of the puzzle, you have to scroll way down to section 6, which says:

Sun supports and benefits from the global community of open source developers, and thanks the community for its important contributions and open standards-based technology, which Sun has adopted into many of its products.

Please note that portions of Software may be provided with notices and open source licenses from such communities and third parties that govern the use of those portions, and any licenses granted hereunder do not alter any rights and obligations you may have under such open source licenses, however, the disclaimer of warranty and limitation of liability provisions in this Agreement will apply to all Software in this distribution.

So, here it is in a nutshell: When you download NetBeans, you click through a license. That license says "This license covers everything except the parts that are covered by open source licenses." Which, in this case, happens to be...all of NetBeans. For a lawyer, it is perfectly clear because it says it doesn't supercede the open source stuff - how could anyone read it and not figure that out?

For an engineer downloading software, the first thing you look for isn't what the license says it doesn't cover - and probably nobody expects a license agreement to say "This agreement doesn't apply to a bunch of stuff, and by the way, one of the things it doesn't apply to is the product you're downloading."

The agreement is, as I mentioned, boilerplate. It was created for closed-source software that uses open source components. It applies equally well to both, but I can't blame anyone for misunderstanding it - I did. And it's totally non-intuitive to find that on an open-source project's download page.

To be fair, I'm not saying that Elliotte is now perfectly happy about the agreement - we exchanged some emails, and it's clear he doesn't really like the agreement as it applies to Java either. At the same time, one of the things he objects to is the indemnity clause (4e) - we exchanged some emails about that, and do you know what? Neither of us noticed that that section is about redistributing libraries that are part of Java (i.e. the JDK, or JavaHelp, for example). So we were both talking nonsense to each other.

Also to be fair, there are people who will object to the very fact that NetBeans links to libraries that are not open source, even though they are all either parts of the JDK or Java standards like JavaHelp or JMI - even though they are under the same license as Java itself.

So let this be a cautionary tale about what happens when engineers read - or especially, skim - legal agreements. I had a lengthy, and ultimately useless (my fault) conversation about the indemnity clause, because neither of us had noticed that it doesn't apply to NetBeans users. The rumor could have taken on a life of its own and done quite a bit of harm (and nobody here was trying to do harm) - it was already repeated once. It wouldn't have been true, but that doesn't matter with rumors.

Richard Feynman once wrote about his experience reviewing science textbooks for the state of California in the 50s. It turned out that the book the group gave the highest marks to consisted entirely of blank pages. The publisher couldn't get it done on time, but the law required they submit a book by the deadline. And the reviewers gave it high marks because nobody had actually opened it. It's incredibly easy for debates to get wildly off the mark, especially when they involve texts that a lot of people don't enjoy reading anyway - like (unfortunately) a science textbook...or a software license.

Anyway, there's a happy ending here: I don't like that legal agreement either. There's no click through license on other open source projects when I download them. Why should NetBeans have to have one? Well, we get our wish. The click through license on the download page will be deleted. Let me repeat that, loudly:

For those who downloaded NetBeans, there's no need to delete it or download it again - as I hope I've made clear, your copy of NetBeans is covered under the SPL - it always was. But I'm very happy to see this confusing and unnecessary piece of legalese go.

So, thank you, Elliott and Weiqi, for helping to make that happen.

Now perhaps I'll get to spend some time coding.