OSD#5 needs a patch?

[Rod Dixon, J.D., LL.M.]

: On Tue, Oct 07, 2003 at 12:18:58AM -0300, Bruce Dodson wrote:
: > OSD#5 The license must not discriminate against any person
: > or group of persons.
: >
: > Does that need to be expanded to state explicitly that this
: > does not just apply to the license terms?  i.e. Should it
: > say in addition that the license text itself must not
: > contain any discriminatory or derogatory statements against
: > any person or group?
: >
: > Example: Take the BSD license and add to it the following:
: >
: > <ethnic group> ARE PROBABLY NOT SMART ENOUGH OR SOBER ENOUGH
: > TO USE THIS SOFTWARE, BUT THEY ARE PERMITTED TO TRY, JUST
: > LIKE EVERYONE ELSE.  AFTER ALL, WE WOULD NOT WANT TO
: > DISCRIMINATE.
: >
: >
: > (This comes to mind upon thinking about the DISCUSSION
: > section included in the proposed OSSAL license.)
:
: Has this come up yet?  Wouldn't any license that otherwise complied with
: the defintion by defintion allow such a statement to be removed from the
: license file by the user if it offended them?  I don't see how anyone
: could imply that a statement like that is a license clause.
:
: It doesn't seem to me that the OSSAL is making any discriminatory or
: derogatory statements in its DISCUSSION section.  IMHO it's based on
: some misguided goals though.  But that is an entirely different matter.
:
: The problem with changes like what you're suggesting is they turn the
: OSD into a moral position.  My understanding is that the OSI was created
: to avoid the moral imperative slant of the free software camp while
: promoting the practical benefits open source software.  The OSD serves
: to lay out the properties of a license that gets the practical benefits.
:
: The non-discrimination clauses exist because a discriminatory license
: eliminates one of the benefits of open source software.  However, a
: discriminatory or derogatory statement which has no effect on a groups
: ability to use a piece of software per the current OSD would not alter
: those benefits.
:
: That's not to say that such speach as you suggest is desireable.  It's
: just that it would be entering into a moral stance as opposed to a
: practical and cost/benefit stance.
:

I will stop lurking for just a split second to say that I agree that the OSD
is not a moral code.  For the most part, a license speaks for itself. A
licensor who drafts a license containing offensive language does so at
his/her own peril. Obviously, some offensive language may run afoul a law.
For example, license text that offends an individual in a manner that is
defamatory might run afould libel law.  Depending upon who the licensor is,
there may be a number of other legal considerations. Apart from those
issues, I see no reason why OSI would need to post a license on its website,
if the board decided the terms offended the organization's mission and this
type of discretion was not exercised often or arbitrarily, despite the
license' compliance with the OSD.

Rod

Rod Dixon
Cyberspaces.org
rod at cyberspaces.org



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