license-ish vs. Bill of Rights-ish

[Karsten M. Self]

on Mon, Dec 10, 2001 at 09:57:23PM -0400, Steve Mallett (steve at opensourcedirectory.com) wrote:
> I'd like to get some feedback on an assumption I'm making in something I'm 
> writing:
> 
> All philosophy........
> If you were writing the GPL today...
>
> 1) having seen a big software company (Microsoft) fight off legal
> battles with the US Gov't [let alone you, or the FSF on your behalf],
> and,

Unfair comparison.  The DoJ is susceptible to political maneuverings.
It's currently seized defeat from the jaws of victory.  Microsoft didn't
win the law, they won the politics.

> 2) having seen other companies recently heed pressure from people
> involved with this list to bring their activies in line with licensed
> software they were working from/with and under the intent of
> 'opensource',

Point to specific examples.

There are two general situations we've seen listed here:

  - License noncompliance (particularly GPL).

  - Confusing or misleading use of the term "open source" (which is not
    a registered trademark for the purposes of discussion).

In the first case, the legal feasability of crossing licensing terms is
seen as low.  Even by Microsoft (I've direct experience with this).

In the second case, the companies are generally trying to leverage the
goodwill of the open source community.  In this case, they've little
incentive to cross it.  A company that was bent on twisting the term
would likely not be as favorably responsive.

> ... would you write it in strict legal terms (license-ish) or stick to clear 
> language like the OpenSource Definiton (Bill of Rights-ish)?

I'd write my license in clear, unambiguous, legal language.
Fortunately, copyright law provides a very strong lever for the
individual programmer.

> Some of my thoughts here are:

...somewhat orthogonal to the original question.

> 1) that _part_ of the success of the GPL is that as one of the most discussed 
>    licenses it is better _understood_  than others,

...and misunderstood ;-).  In general though, yes, there is a large body
of persons and organizations which are relatively well informed regards
interpretation, scope, applicability, and limitations, of the GPL.
While there's also a large amount of _dis_information floating around,
it's generally better combatted in the case of the GPL than a less
widely known license.

The GPL doesn't fit the goals of all organizations or projects, and
there are a number of other major licensing models around (BSD/MIT,
MozPL, and the generalized version of the IBM PL) which are reasonably
widely used, and similarly well understood (for the most part).

> 2) because it is better understood it is picked as the preferred
>    license for software, thus increasing the breadth of people
>    knowledgable in its intent, etc etc,

Positive feedback.  Yes.

> 3) clear language and legalese are both open to interpretation. Yet
>    isn't it better for all to understand the license's intent rather
>    than write it in strict legal terms which are confusing at the best
>    of times?

These aren't mutually exclusive propositions.  It's possible to write
language that's both clear and binding (an opinion, nonlegal).  I
believe that in software, law, and accounting, transparancy is an
extremely valuable, and too often underappreciated, characteristic.

> 4) The OSD is popular as a manifesto because it is clear and
>    understandable.

In the case of both the OSD, GPL, and FSF Free Software Definition,
there's a tradition and community of interpretation, which helps.
There's some ambiguity (is there a "right to privacy" inherent in the
OSD or FSF Free Software Definition?) as well.

> *I am _not_ proposing that the GPL, the OSD, or any other such thing
> be changed.   

They likely will be...eventually.

Peace.

IANAL, TINLA, YADA.

-- 
Karsten M. Self <kmself at ix.netcom.com>       http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?             Home of the brave
  http://gestalt-system.sourceforge.net/                   Land of the free
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