The ability of the Open Source Initiative to steward the Open Source Definition and police the use of the term open source as it relates to software is in doubt following the confirmation that the corporate status of the non-profit company has been suspended in California. What does it all mean?

The OSI’s corporate status is suspended?
According to the website of California Secretary of State, Debra Bowen, yes.

When did this happen?
We’re not sure at this stage. We were alerted to the news via a comment left by Thomas Lord on the Simon Phipps’ blog. Wikipedia indicates that the status has been suspended since at least September 2, 2009.

How did this happen?
Thomas Lord has claimed to be at least partially responsible, having filed a compliant with the state attorney general office following a dispute with the OSI board. See his comment below.

What does the Open Source Initiative have to say about it?
We asked OSI president, Michael Tiemann, and general counsel, Mark Radcliffe, a number of questions related to the suspension. We received the following response from Michael:

“Like many non profits that are staffed by volunteers we have not always gotten our paperwork into the state on time. We have been working with our counsel and accountants to satisfy the state’s requirements for several months, but have not been able to make the submissions as swiftly as the state wanted. Consequently, they have suspended our corporate status. We are working hard to satisfy their requirements and anticipate that we will be able to do so in the near term. Since OSI does not conduct business in a conventional manner, i.e. we are not selling products, we believe that the suspension will have a minimal effect on our mission.”

That doesn’t sound so bad.
No, it doesn’t. With respect, however, we believe the situation is more serious than that statement suggests.

How so?
Regardless of whether the OSI sells products in a conventional manner, the suspension appears to legally prevent the OSI from actively going about its business of approving licenses and stewarding the Open Source Definition.

According to the State of California’s Franchise Tax Board website:

“Suspension or forfeiture affects a business in many ways:
• The business loses its rights, powers, and privileges to conduct business in California.
• The business loses the right to use its business name in California. In turn, another business could register with the suspended or forfeited business’ name, and the name would then belong to the other business.
• The business cannot initiate lawsuits, defend itself against lawsuits, or enforce its legal contracts. But other parties can enforce their terms in these contracts.
• If the business enters contracts while suspended or forfeited, it can never enforce those contracts unless it obtains relief of contract voidability.
• Suspensions and forfeitures are public information.
• The business loses the right to get an extension to file a tax return.”

So the Open Source Initiative could lose it name?
Yes it would appear so. In fact, it may already have done. If that were the case we believe it would impact the OSI’s ability to enforce its trademarks related to “OSI”, “Open Source Initiative”, and the OSI logo.

What about the open source trademark?
There isn’t one (for an explanation of why, see this 1999 announcement by Eric Raymond). The OSI does not have any trademark related to the term “open source”. However, the respect in which the OSI is held, combined with the trademarks that it does hold, has enabled the OSI to discourage the use of the term “open source” with software that does not use OSI-approved licenses. Since the the corporate status of the OSI is suspended its ability to do so in the future is in doubt.

What does this mean for open source?
It means that the organisation responsible for stewarding the Open Source Definition and approving open source licenses is not currently legally allowed to operate in the state of California, or defend itself against legal claims, and may lose its name. Beyond that, we do not know at this stage.

Why is The 451 Group making this information public?
As noted above, suspensions and forfeitures are public information and the bare facts are already available.

We are concerned about the impact that the suspension of the Open Source Initiative could have on open source developers, users, projects, and associated investors and vendors. The 451 Group has clients in all of the above categories so we believe it is appropriate to inform them of the suspension of the Open Source Initiative’s legal status and how it might impact them. We are in the process of creating a formal analysis of the situation for 451 Group clients.

We also believe that the potential impact is significant enough that, while the bare facts are already public, the issue deserves to be brought to the attention of the wider open source community. We will let the members of that community come to their own conclusions about what it means to them.

How can a company be suspended in California?
According to the website of California Secretary of State, Debra Bowen, a Californian company can be suspended:

“1) by the Franchise Tax Board for failure to file a return and/or failure to pay taxes, penalties, or interest; and/or 2) by the Secretary of State for failure to file the required Statement of Information and, if applicable, the required Statement by Common Interest Development Association.”

It is not clear which body suspended the OSI.

Can the company be revived?
Yes, if it was suspended by the Secretary of State then it must file a current Statement of Information.

If it was suspended by the Franchise Tax Board then it must:

“File any delinquent tax returns. Pay any delinquent tax balance, including penalties, fees, and interest. File a revivor request form.”

If it was suspended by both it must:

“first file a current Statement of Information with the Secretary of State and obtain a letter of proposed relief from suspension or forfeiture. Upon receipt of the proposed relief letter from the Secretary of State, the business entity should complete an Application for Certificate of Revivor (Form FTB 3557) and submit the application along with a copy of the proposed relief letter to the Franchise Tax Board.”