Richard Fontana wrote at 18:28 (PST) on Tuesday: > The FSF presumably did not see the presence of a choice of law clause as > raising an inherent free software problem (as they recognized licenses > like MPL 1.1, EPL 1.0, and the QPL as free software licenses)
I can speak to that, since, while I no longer have any affiliation with the that the FSF (since 2019-10), I was involved in FSF's (admittedly very opaque) license approval process at the time when all those licenses above were determined to be “Free Software” licenses by the FSF. FSF contemporaneously (and somewhat aggressively) lobbied most of those folks to not include and/or remove “choice of law” clauses. FSF struggled over approving those licenses with “choice of law” clauses. The internal discussion centered around concerns similar to those I was raising in the license-review thread about the so-called “Open Logistics License” — that one bad decision in one of those jurisdictions could invalidate the whole license, and that was dangerous. You'll note that FSF never *recommended* that people license their own software under those licenses — rather, the determination was about whether you could safely copy, modify, and redistribute the software in freedom under those licenses if you were presented with software under them. This is an important nuance, and in fact, I remember the day I assisted in writing the text for the QPL for the license-list that attempted to communicate this nuance, as I recall it was the first time we had tried since I started the FSF license-list back in the 1990s, to really communicate with some clarity that the QPL was “barely” a Free Software license and as such was acceptable for inbound use but should be avoided as an outbound license whenever possible. (I also recall that there was a previous QPL that was straight-up non-Free before that, BTW.) I *do* think license evaluation authorities have a duty to give that nuanced assessment: some licenses are “barely acceptable” and as such folks shouldn't avoid FOSS under them, but that ruling should come with a clear and unequivocal recommendation that all parties avoid licensing future software under those licenses when possible. Indeed, I think one of the problems with the OSI license review process is that that these important nuances is almost entirely lost is OSI's approval process. (I'd however agree that historically the FSF probably erred on the other side — being rather overly-obsessed with communicating the nuance such that the main message was itself sometimes confused). <https://opensource.org/licenses-draft> is an interesting approach to this problem (although the idea that OSI expresses there that you need to hire a lawyer fits with my concerns about the statements OSI's former Executive Director and General Counsel (Larry Rosen) is currently making (see below)). <https://opensource.org/licenses/category> is a good start, but, speaking as someone who served as an invited outside party on the original License Proliferation Committee (i.e., the ad-hoc one that existed before the one whose report is at <https://opensource.org/proliferation-report>), I find the fact that most of the vanity licenses aren't consider “proliferation” is odd and curious. (It's particularly interesting that Microsoft (which currently has two of its representatives on OSI's board) has been able to keep its obviously-proliferation licenses on the “Uncategorized Licenses” section rather than the “Non-reusable licenses” or section.) Also, the category of “International Licenses” (where many of the “choice of law”-including licenses are listed) makes it sound like those are preferred for international work, and nowhere else on the page does OSI even acknowledge that all the licenses "popular and widely-used or with strong communities" are generally *all* drafted to operate internationally. I'd probably have a lot fewer complaints about the “choice of law” situation if OSI had a clear statement on its position on “choice of law” and why it encourages people to use FOSS licenses that a “choice of law” clauses despite the downsides. Such a document could and should even discuss the upsides that OSI sees about “choice of law”. I think the problem stems from the fact of something that all license evaluators (OSI, FSF, Debian) had done poorly: all these orgs treat license evaluation as a discrete activity whereby big issues related to specific planks that appear in FOSS licenses are only studied and considered when a license is published that attempted to use those planks to reach some policy goal. By that point, the parties that wanted to chase that policy goal were entrenched, they had their talking points all ready to go, and the orgs, all of whom have limited resources, faced well-funded lobbying campaigns. IMO, this was the root cause of vanity licenses to begin with. In other words, the license evaluators seem as if they operate like Courts, but as Fontana and I have been saying, none of them have the kinds of procedures that Courts do to find their own errors and biasses. Furthermore, the political processes that decides “quis custodiet ipsos custodes?” are woefully inadequate, and that is admittedly as true for FSF as it is for OSI in this regard. (Debian is IMO slightly better since it is an international democracy, but the political structure that the ftp-masters have ultimate control over license decisions — and there is no appeal process other than GR — presents different problems.) Pamela Chestek wrote at 22:01 (PST) on Tuesday: >> There are many licenses that either name a specific jurisdiction, will >> have a specific, named jurisdiction once you know who the licensor is, or >> allow the licensor to unilaterally choose a jurisdiction: Pam, thanks for going through and finding all the OSI-approved Open Source licenses that have a “choice of law” clause. Of these licenses with “choice of law” clauses that you've found, I see that there are 17. Eleven of them (more than half) are pure vanity licenses for specific entities. Two more (CDDL and CPAL) were both approved when OSI had no conflict of interest policy, and folks involved in the license drafting were in major leadership roles at OSI (i.e., Sun employees re: CDDL, and OSI's General Counsel Mark Radcliffe re: CPAL). While there are a remaining four that aren't pure vanity licenses, I believe that VanL's license was written for a single client that paid him to do the work (so it is a vanity license, just not named after the client), and I suspect the others are similarly single-organization licenses without widespread consensus. Furthermore, on another vector: only *three* of these seventeen licenses (and all three of those are pure vanity licenses) have a “choice of law” that names a very specific jurisdiction, as opposed to naming something like “jursdicition of the Licensor”. I know this discussion isn't supposed to happen on license-review (as OSI has cut off any further discussion about concerns for choice-of-law for Open Logistics) but this speaks the fact that there is basically *no* real precedent for the “Open Logistics License” choice of law clause to be tied to a specific jurisdiction. Anyway, as discussed above, I don't think precedents are all that meaningful in a system that that has had a poor process and checks/balances for most of its history, and *still* has absolutely no appeals process whatsoever. Fontana wrote further: > (2) the indication that approval was based not merely on satisfying the > letter of the OSD but also on establishing that the proposed license would > provide software freedom -- the latter has been severely criticized by > some people though. … but I also don't think that the OSI has actually taken that issue to heart. It seems to me that the OSI remains focused on a “barely satisfies OSD standard” for license approval, and doesn't communicate nuances about software freedom and rights with regard to specific licenses. (Again, I state for the avoidance of doubt that despite these important criticisms, the OSI is now doing a much better job here than the FSF on transparency, and I credit Pam primarily for that. I wouldn't (and didn't) bother to engage if (and when) I thought the process and meta-process failed to be open and fair.) * * * Meanwhile, Lawrence Rosen wrote at 19:48 (PST) on Tuesday: >> Brad[ley] has the illusion that his opinions about licenses (and >> currently about jurisdictional clauses in licenses) qualifies him to >> disapprove existing and already-approved licenses. Larry, I never expressed such a representation about my qualifications. Please cease with specious ad hominem statements. I respond below to them for the record so that your harsh and false words aren't left to stand for the record, but I truly hope you don't come back with more personal attacks. I don't think such personal attacks help the FOSS community or the readers of this list and its archives. >> He [Bradley Kuhn] is no expert on the legal issues of licenses in the US >> and other countries. Of course, I'm an expert, Larry; just as you are. I think this community errs when it assumes that only the opinions of lawyers are valid expertise regarding FOSS licenses. I state this for anyone who is a FOSS contributor who is intimidated by these kinds of statements above that lawyers routinely make in these kinds of discussions: Even if you're not a lawyer, if you've worked hard and studied FOSS policy carefully and participated in FOSS communities, your opinion on FOSS legal and policy issues *matters*. The only activity that you (as a non-lawyer like me) cannot do with regard to legal issues in FOSS is *represent a client* or *give a client legal advice*. Lawyers sometimes will often tell you that your knowledge about FOSS policy is meaningless because you haven't gone to law school. Don't believe them when they tell you this. It's akin to folks with computer science degrees telling software developers who didn't get a CS degree that they can never be good software developers, even after decades of experience. >> He [Bradley Kuhn] certainly is not a lawyer whose opinions matter over >> those of actual lawyers in some magical way. Any court would say so and >> shut him up. First, I've seen many courts in FOSS licensing litigation to tell the lawyers who are actually *representing* the litigants to cease speaking when they're off-topic or saying something incorrect, so I don't think a Court telling anyone to be quiet is dispositive about their expertise. I have never seen a Court tell someone to “shut up”, as Courts are almost never rude and abusive — even to the worst of those who appear before them. (I'm sure it's happened in history that a Court has said “shut up”, but it's surely a rare occurrence.) Second, the interesting thing is that those of us who are *not* lawyers can actually appear as an expert witness in cases (which, for example, I did, in SFC's BusyBox litigation). Typically, lawyers *can't* also appear as experts in cases — at least in the USA. I can assure you, Larry, that Judge Scheindlin in the USA SDNY didn't tell me to “shut up” when I filed my expert report in the BusyBox case — even though the Defendants lawyers tried really hard to convince her to do so: ☺ https://storage.courtlistener.com/recap/gov.uscourts.nysd.355978/gov.uscourts.nysd.355978.212.0.pdf > For what my own limited opinion is worth, I certainly do not delegate > to him, nor to the OSI board of directors, the right to retroactively > disapprove my own licenses along with my own carefully-considered > jurisdictional provisions. Of course, I didn't suggest anyone to delegate to me. But, of course, anyone who has ever submitted a license to the OSI for approval delegates to the OSI about whether or not their license appears (or continues to appear) on OSI's own list. It's *their* list; they can make whatever rules they want regarding how and when licenses are listed or delisted as “Open Source”. What I've suggested is there be an appeals process to OSI's decision, that interested parties should have a right to avail themselves of. I also argued that anyone who has an interest in FOSS licensing outcomes or copying, modifying and redistributing FOSS should have standing to bring such appeals. I'd be glad to debate whether my suggestion on standing is too broad, but the current standing constraints for delisting — that only the license steward has standing — is (in the opinion of many) too narrow. > the OSI have ONLY the authority to determine whether licenses satisfy the > Open Source Definition AND NOTHING MORE. The OSI obviously also has the ability to modify its OSD, or anything else it chooses to do — as long as its fitting with the charitable mission they filed in their Form 1023. Are you arguing that their Form 1023 bound them to these specific set of tasks you list — and nothing more? I suspect you may have been the one who filed OSI's Form 1023, so you can likely speak to that authoritatively for us. -- bkuhn _______________________________________________ The opinions expressed in this email are those of the sender and not necessarily those of the Open Source Initiative. Official statements by the Open Source Initiative will be sent from an opensource.org email address. License-discuss mailing list [email protected] http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
