It is a misperception to think that there is any "non-binding" part of a
legal document. Everything in there is there for a reason (or should
be). There may be parts that don't describe an action, but contract
interpretation often involves determining the intent of the parties.
This is often the role of the recitals. Take for example the statement
in the GPLv2 that "The GNU General Public License is intended to
guarantee your freedom to share and change free software." When
interpreting the license, and trying to ascertain the meaning of an
ambiguous clause in it (and there are many), this statement tells you to
construe the ambiguous clause in favor of an outcome that will give
users the freedom to share and change the software, because that is
described in the document as the licensor's intent.
Pam
Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pam...@chesteklegal.com
www.chesteklegal.com
On 12/27/2020 2:33 PM, Lukas Atkinson wrote:
There already are a number of licenses with a preamble, recital, or
introduction, and they can be helpful. For example, the CC0 Statement
of Purpose provides important background on how the device is intended
to work. The GPL's preamble provides a non-legalese summary of the
effect of the license, and explains the intent of the license. The GPL
preamble is also clearly political in the sense that it expresses
certain values, and uses charged words such as “threatened” or
“surrender”. I consider the GPL halfway to the boundary of what is
still acceptable in a preamble – a much more neutral tone would have
worked as well. But it would be very unwise to forbid such sections
outright, or even to impose overly strict requirements.
Of course, I agree that it would be problematic if a license were a
vehicle to attach completely unrelated material to a software. This
also relates to the OSI's lack of enthusiasm about badgeware licenses.
So I think the question isn't *whether* we should allow manifestos or
mission statements (yes!), but to which degree they are appropriate
(not very much).
1. Enabling invariant material that is not part of the license text
is clearly not appropriate in a software context.
2. Non-binding sections of a license that summarize it or provide
interpretation guidance can be appropriate.
3. These sections should not include material that is unrelated to
the license terms, but that shouldn't be judged too harshly.
4. These sections should be clearly delimited from the actually binding
terms.
5. Non-binding parts of a license should not go against the OSD and
other typical expectations for a license.
There shouldn't be a license proliferation problem since two licenses
with identical terms (but different non-binding preambles) are clearly
redundant and don't require separate approval. It is my understanding
that a license can be open source and OSD-compliant without being
OSI-approved.
As examples for some of these points, especially 3 and 5:
* I would consider a preamble acceptable if it explains how a certain
philosophy or belief system requires certain license terms, e.g. why a
deontology-friendly license should be rather permissive, or why an
animal rights inspired license should use copyleft mechanisms.
* I would consider a preamble unacceptable if its intent is clearly to
exclude certain uses (compare OSD 5 & 6), e.g. that software under
this license is intended to be used only for the greater good, or that
copyleft provisions are intended to discourage use by the SaaS
industry.
On Sun, 27 Dec 2020 at 07:26, Roland Turner via License-discuss
<license-discuss@lists.opensource.org> wrote:
All,
I continue to noodle with the problem of people increasingly aware of harm
happening around them[1] seeking to add use-limits to open source licenses:
Ignoring this shift seems undesirable.
Tacking on use limits seems incompatible with what OSI is about.
An approach came to mind while commenting on a recent proposal to
license-review and I'd be interested in views on whether this was workable:
would/should it be an acceptable condition in an OSI-approved license that an
unmodified project manifesto be included in any copy of the software? This
potentially improves both:
the legal ambiguity problem: a separate manifesto need not create legal
obligations (wording in the license to make this clear seems workable); and
the license reuse problem, because different projects will have different
values, beliefs, and missions.
There is a real problem with updating the manifesto, but I'd like to explore
whether there's any upside at all, before heading too far down that particular
rabbit hole.
I am particularly interested in the abuse potential. E.g. an activist
organisation gets their software into use in a target's systems. Assume that
the above successfully excludes the use of copyright law to invalidate the
license on a use-limitation basis, but has OSI-approval facilitated the
creation of a tool for outrage-industrial complex abuse? (Joe's Puppy
Restaurant uses software created by an animal rights organisation to advance
the welfare of animals in optimising its supply lines for arguably the opposite
outcome.) Does it matter?
- Roland
1: "woke" in contemporary usage, although that term it not particularly
neutral; it is frequently used in both approving and pejorative contexts.
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