OSD#5 needs a patch?

[John Cowan]

Rod Dixon, J.D., LL.M. scripsit:

> My thoughts on this are twofold: [1] that OSD 5 or the proposed OSD 6 should
> be explicitly limited to matters that generally are NOT already covered by
> laws;

The laws of which jurisdiction?

> in other words, the OSD should restrict the term "discrimination" to
> apply to matters that are important to the goals of the open source
> community (see below)

Let us not forget the original use case for OSD #5, the license
that prohibits "use of this software by the police of South Africa".
No reasonable court is going to say that being a South African policeman
is a suspect classification meriting strict scrutiny (or whatever its
native equivalent of that may be), but that license is not Open Source
nevertheless.

Whenever I need to reduce the OSD to bullet-points, it winds up
something like this:

- Freely redistributable
- Source code available
- Modifications allowed
- No discrimination

IOW, I consider the anti-discrimination requirement an essential part
of what makes Open Source "open".

> Regarding my first thought, if we accept the argument that the OSD should
> *generally* reflect the values of "freedom of contract,"

I can't agree with you less.  Freedom of contract implies the freedom
not to contract.  Open Source licensors give up that freedom by issuing
public licenses that apply to all and give the same rights to all (with
the obvious exception of the licensor, in cases like the NPL).

To my mind, the trick is how to allow patent poison pills to work while
blocking the argument that they discriminate against the class of people
who sue the licensor for patent infringement.

-- 
John Cowan                              jcowan at reutershealth.com
http://www.reutershealth.com            http://www.ccil.org/~cowan
Humpty Dump Dublin squeaks through his norse
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But for all his kinks English / And his irismanx brogues
                Humpty Dump Dublin's grandada of all rogues.  --Cousin James
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