On Sun, Mar 17, 2019 at 6:02 PM VanL <van.lindb...@gmail.com> wrote: > > > I think it gets back to the core purpose of the OSI: To be a steward for the > OSD and to certify licenses as compliant with the OSD. There are many other > good things the OSI *can* do, but that is the one thing it *must* do. > > So how does that get back to L-D and L-R? Well, the OSI board is not composed > of lawyers. So L-D and L-R end up being systems for recommending (or not > recommending) licenses for approval based upon various criteria.
That seems to imply that determining whether a license is compliant with the OSD is task that is fundamentally within the competence of lawyers in particular. I do not agree. The OSD (drafted by a nonlawyer without access to legal advice, at least in its original form) is not a conventional legal document -- it is not a court decision, statute, regulation, treaty, constitution or the like. The OSD is a statement of philosophy and policy aimed at nonlawyers. > Those criteria seem to include: > > 1) Compliance with the OSD. This can have a more or less legal feel, but it > seems necessary to identify whether particular licenses do or don't appear to > comply with various parts of the OSD. Okay, I understand the "more or less legal feel". It is true that lawyers are generally trained (though, in general, not especially well) to interpret legal texts in certain particular ways relevant to the way the legal system works. And compliance of a license (itself a legal text) with the OSD (again, not a legal text in any conventional sense, but has some similarities to some kinds of legal texts) should involve a kind of interpretation that resembles the sort of interpretation at which, in theory (though often not especially in practice) lawyers are supposed to be particularly competent. I would argue that the work that most lawyers do bears little resemblance to the activity of determining whether a license complies with the OSD. On the other hand, a nonlawyer who is steeped in free software/open source legal policy (and I know many people who fit this description) might be much better qualified to interpret the OSD than the average lawyer. As I was recently saying elsewhere, lawyers often carry certain sorts of biases and baggage (due to client interests, professional specialization, mercenary aspirations, class and guild loyalties, or otherwise) to open source-related work that can negatively affect how they approach a task such as interpreting the OSD in relation to software licenses. > 2) The law. If the license is not legally sound, that is a good reason to > recommend against it. Board members could vote to approve or deny based upon > how persuasive those arguments are. Perhaps. I don't think it is or should be a primary consideration, at least normally. For example, you provided some arguments for why SSPLv1 (I think it was v1) was not legally sound, and that was a really useful contribution to the discussion, but I think those arguments were ultimately less important than, for example, the philosophical/policy question of whether SSPL was inappropriately discriminatory in violation of OSD 5/6, or unreasonably burdened the ability to use or distribute other software in violation of OSD 9. > 3) Policy choices affecting open source usage or the open source community. > Certain licenses may implicate policy issues that, on the whole, a board > member could feel was detrimental to the community as a whole. > 4) Community reaction. Licenses are community organizing tools, and having > communities indicate a willingness to use a particular license is an strong > indicator of quality or acceptability. Similarly, a strong negative reaction > from community members could reasonably cause a board member to vote against > a license. > > Thinking back on various discussions, I think that the most substantive > discussions really ended up focused on one or more of these criteria. It also > seems reasonable that criteria 1) and 2) are strongly legally inflected, but > any member can have a well-reasoned opinion with regard to 3) or 4). I would say 2) necessitates input from legal specialists, but not 1). Richard _______________________________________________ License-discuss mailing list License-discuss@lists.opensource.org http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
