Beyond the obvious ethical objections to this practice, the negative impact it has on the industry is to no one's interest. Open source products are often developed with public money, be it through research programmes, public administration initiatives or local authorities. These initiatives have created an implicit open source brand, synonym with freedom of development and local based support and maintenance.
By misleadingly identifying their products as open, corporations cash on the open source brand, essentially promoting monetary flows that invariably end outside Europe. This is a complete subversion of the economic and social dynamics of open source software.
I am a charter member of the Open Source Geospatial Foundation (OSGeo) an institution that, among other things, works to promote the quality of geo-spatial software. It defines a series of processes and criteria after which a software project may graduate as a OSGeo Project, i.e. a label of quality. However, like with other similar initiatives, OSGeo has no powers to prevent any software project to be self-branded as "open source geospatial".
This practice is nothing new, and it is actually one of the reasons for market regulation, that exists in one form or other in all countries of the OECD. For instance, if I sell ear rings made out of lead I can not claim they are made of silver.
In the European Union various mechanisms have been put in place for similar situations, such as the Protected Designation of Origin (PDO) to label goods produced in specific regions (think of Port, Champagne, Scotch) or the Traditional Specialities Guaranteed (TSG) to differentiate products crafted by traditional processes.
This is precisely the sort of mechanism we need to protect the concepts of "open" and "open source". It would be something like EU regulation 1169/2011, framing organic farming practices and marketing. It not only sets the criteria for farmers to label their products, as it actively prevents others from falsely claiming to that criteria.
If the legislative work towards such regulation is pretty much yet to be made, the EU is already equipped with institutions for the promotion and enforcement of a "open source" labelling scheme. An obvious culprit is Joinup, the Europen Commission's software interoperability and reuse support platform.
Coming to practice, I see three broad approaches to the enforcement of such a labelling system:
- Labelling by request. In this approach projects wishing to obtain the open source label would need to require approval from an EU institution, such as Joinup. This has the obvious disadvantage of swamping the labelling institution with requests, eventually leading to long waiting times.
- Free labelling. Everyone is free to use the open source label, and EU institutions only act on complaints of misuse. Sounds good on writing, but can the industry really police itself? Since large corporations are only a few, this could be enough to prevent relevant abuses.
- Hybrid labelling. In this scheme the regulation would make it automatically possible for any project licenced with the European Union Public Licence (EUPL), or equivalent, to use the open source label. Any other projects would then need to file a special application to obtain the label.