gwachob at findlaw.com
Tue Apr 27 19:50:03 UTC 1999
Seth David Schoen wrote:
> Gabe Wachob writes:
> > Was the intent of #6 of the OSD to prevent licenses from restricting
> > use to legal purposes? Is "all legal activities" a "field of
> > endeavor"? (I don't think so, using "plain meaning").
> Now, whether prohibiting particular fields of endeavour is good or bad
> depends on questions of moral and political philosophy.
And whether the open source definition takes a stand there is also a question of
moral or political philosophy. I'm not taking a stand (I think that would be kind
of cool for the OSI to make the OSD take that position, but I'm not sure its the
best thing to promote the availability of open source software).
> There are much more generic versions of these arguments. Continuing from
> above, since the provisions of some laws are discriminatory, requiring
> compliance with all laws is also discriminatory. Requiring compliance
> with a specific discriminatory law is also discriminatory. Requiring
> compliance with a specific non-discriminatory law is _not_ discriminatory,
> but it doesn't cause as much controversy.
Well, you start to get into serious definitional issues (one party's definition of
"discrimination" may not comport with another's). This brings the OSD into a
political realm which I would think might detract from its ultimate purpose. Of
course, that non-discrimination may be part of the purpose in the first place..
> I can actually be more concrete about this particular issue: Brian Ristuccia,
> who posted the original list of problems with this license, happens to be
> working on free software to defeat the censorship software that many
> governments have set up. Most governments that have done this have also
> imposed anti-circumvention laws of some sort. So Brian's efforts would
> probably violate many national laws.
Quite possibily. But the issue is whether the software someone else makes can be
under a license terminable by the illegal status of the underlying software.
I guess it comes down to what is the purpose of the OSI/OSD?
> Now, what's the status of licenses which have the effect of prohibiting some
> software package from being used in or in support of Brian's IANS project?
> There are many more examples, with various associated degrees of
> controversy. But I think the general point that free software licensing
> needs to be neutral or antagonistic, not supportive, toward discriminatory
> laws, is clear.
Well, you are then asking corporate open source providers to take on the risk of
terminating licenses without an explicit termination term. I'm not saying that this
is a bad thing, but simply that it is just another hurdle to overcome (and even
then, arguments can be made on either side whether the hurdle is really all that
> That includes
> possible bad laws which may be passed in the future, and so the software
> authors are giving up a lot of power by implicitly trusting that all
> legislation everywhere in the future will always respect freedom.
Well, laws are enforced by governments. You are always subject to the applicable
laws of the jurisdiction you are in (and then some). The *real* issue is whether or
not we want to give the open source software provider the explicit legal right to
prevent you from using the software (which they may have anyway in many
jurisdictions if the software itself is illegal). My argument is simply that the
overallpractical effect of that term seems pretty small in comparison to government
enforcement of laws.. I don't know about that for sure. Thats where Ithink the
conversation should go.
> The GPL, for instance, saw fit to insist that legislation could _not_
> absolve people from their responsibilities under it just because that
> legislation made it difficult or inconvenient to do so.
Illegality is different from difficult in performance of a contract.
> > That would seem to be a large obstacle for a large commercial entity
> > wishing to open source their software.
> Wow, you should have seen publicsource at lists.apple.com when Bruce Perens
> posted his objections to termination clauses there! People were alleging
> hatred of (and conspiracies against) corporations left and right.
I can imagine.
> The basic situation was that a few people, especially Bruce, suggested
> that there were some problems in the APSL that made it fail to be free
> software. The reaction of many Apple supporters was to insist that we of
> the free software community had unreasonably high standards that no
> corporation could possibly meet. Some people then insisted that free
> software people needed to be "realistic", and the version of "realistic"
> they had in mind was something like "modifying the OSD according to
> corporate lawyers' wishlists".
Well, I guess it depends on what the purpose of the OSD is. Is it to promote the
distribution and creation of high quality, open source (lower case) software, or to
promote something more (including notions of "freedom of
> I don't mean to be too harsh toward Apple supporters. But there was a
> very large difference in outlook. Many Apple supporters seemed not to
> think that publishing free software could have associated risks or
To a certain extent, this is a political effort -- you want Apple and other large
corporations to minimize the externalization of the costs of the risks involved
with publishing open source software (ie risks of illegality, IP violations, etc).
You want them to bear some of the risks cause they certainly get a lot of return. I
think if you cast the issue this way, you'll find a lot more responsive attitudes.
But having not participated in the original discussions, I'll not cast the first
> > These large companies have presences in many nations whose laws
> > are very different from the U.S. and don't want to be punished by
> > these foreign governments for releasing software which is considered
> > "illegal". Terms like the present one explicitly shift the risk of
> > "illegality" of the underlying software onto the licensee (the end
> > user).
> No, they make the "illegality" a license issue.
Illegality is *always* a contract issue. Whether or not you make an explicit term
for it allocating the risk to one party or another is up to the contract drafters.
> So, if you broke the law
> originally, you were just in trouble with the government. Now, if you
> break the law, you're in trouble with the government _and_ the software
Well, maybe. Its quite conceivable that the author could claim that the underlying
subject was "illegal" and therefore the license is terminated (especially if under
threat or pressure from the government claiming illegality of the software). You
may find as well that large corporations refuse to license software at all without
such a term. Do we want that?
> If countries want to punish people who don't help enforce their laws, then
> that's a risk of living or doing business in those countries, not a reason
> to help them enforce their laws.
Sometimes, its not always that clear, however. And sometimes, laws change. And
sometimes, software is taken into countries where the original author did not
> In the US, there's theoretically some degree of legal protection against
> "compelled speech". If I sell pens and paper, I'm not obliged to give
> long speeches to my customers on the evils of abusing those office supplies
> by making pornographic drawings. They don't even have to promise me that
> they're going to use the paper for legal purposes; that's between them and
> the government.
You are not licensing the pen user to use the pen. You are selling them a pen. Big
big difference. These days, software is rarely sold -- its almost always licensed.
> In other countries, the situation may be different, but it's hard for me
> to imagine why the OSI should endorse licenses that help governments take
> away people's freedom.
Well, thats certainly one position that OSI could take, and there are certainly
good arguments for it. I'm just suggesting that this stance causes problems that at
least should be recognized as such.
> I suggested in a discussion of the old APSL, as an example, an honorable
> user who believes in either intellectual property or contracts (or both),
> and who disbelieves in some law in his jurisdiction and does not intend
> to obey it.
> Writing that law into the license significantly changes the situation for
> this user.
Yes it does. The term has some practical effects for people in countries where
certain software may be illegal but not "so much so" that a open source provider
would choose or be forced to try to terminate the license despite a lack of a
> > Now, this argument might be counter to the principles of the Open
> > Source Definition, but we must remember that companies like SGI are
> > doing this not for the public good (they could get sued for that), but
> > because of the business case it makes for them. I would argue that a
> > term like this reduces risks and makes that business case better and
> > thus is beneficial for opensource (balancing, of course, against the
> > increased restrictions on use of software it imposes).
> I believe that the fact that such considerations appear at all is unfortunate.
Its the real world, which is often unfortunate.
> As things stand, if anyone's not interested in following the principles
> expressed in the OSD, they don't have to. If they do, they get certain
> benefits, ranging from helping humanity to a warm fuzzy feeling to publicity
> to the goodwill and possible co-operation of various developers who also
> like those principles.
You can treat the OSD as a take-it-or-leave-it document, and then try to impose
that view of the world on the corporate world, but that ain't gonna happen. It
really depends on what you are trying to do. If you are trying to promote that
certain political point of view, then by all means, do not bend to accomodate more
risk-averse large corporations.
> > I'm not saying the wording is perfect, just that the intent of the term is
> > important.
> Ah, the wording in that license is a mess anyway. :-) Wording is just a
> temporary consideration; "the letter killeth, but the spirit giveth life."
Actually, the wording is very important, I'm just not focusing on too closely.
> > > The clause which requires people to follow "all export and import control
> > > laws" is ambiguous, and could be construed as a bizarre inclusion by
> > > reference of _all_ trade laws in the entire world.
> > Actually, I think its straightforward and thats exactly what it intends to do.
> > Its another case of SGI covering its rear end. These are fairly standard
> > traditional license terms.
> I'm talking about extraterritoriality. The way it's phrased right now, you
> can read it as saying that I'm expected to follow Ugandan trade laws when I
> use this software.
Hmm.. I think the word "applicable" applies. Unless you are in Uganda, Ugandan
trade laws aren't applicable, therefore you don't need to worry about them.
This is a wording issue that can and would be fixed, I'm sure. I'm almost 100% sure
that the intent is NOT for you to follow Ugandan trade laws when you are in the
U.S. (that wouldn't make any sense anyways).
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