[License-discuss] proposal to revise and slightly reorganize the OSI licensing pages

[Rick Moen]

I wrote:

> Quoting Bruce Perens (bruce at perens.com):
> 
> > On 06/04/2012 09:36 AM, Lawrence Rosen wrote:
> > >Get rid of any indication that "popularity" [1] has anything to do
> > >with legal viability.
> > Yes. Let's instead rank the legal viability of licenses according to
> > which ones have been enforced successfully the most times. You have
> > no problem with that, do you Larry :-)
> 
> If you do that, make sure you add a heavy weighting factor for licences 
> never attacked in court primarily because they were drafted by the
> former chief counsel for OSI and because plaintiff is not an idiot.  ;->

I had a serious point to make in passing, in case it wasn't obvious.

For decades (but less often in recent years), one of the most common
objections to any and all open source licensing was 'It's not well
enough court tested.'  This objection tended to come from people who
had since forever used a metric tonne of proprietary software without
even being curious about whether _its_ licensing had spent time in
court.

The more angles you examine that argument from, the more dumb it turns
out to be.  There are a myriad of reasons.  One among many is:  As any
trial lawyer will tell you, the best kind of lawsuit is one you never
have to litigate because the other side doesn't fight.  Competent legal
strategies are ones that aim to win by spending at most postage and ten
minutes of paralegal time, followed by the other side doing what you
want.  Going to court means you need to spend money, and time, and you
might even lose.

So:  Ranking the legal viability of licences according to 'which ones
have been enforced successfully the most times', where 'enforced' is
construed to mean 'fought over in court' skews your data to the point of
meaninglessness, by artificially failing to count the millions of times
particular licences have been 'enforced' by licensees deciding that
litigation is dumb.

And why in particular might litigation be dumb?  Consider permissive
licences, for example.  A licensee suing to invalidate such a licence's
grant of rights would achieve... having fewer rights.  I.e., licensee
would have some implied rights from lawful receipt of the covered work,
but practically all substantive rights would remain reserved by default
to the copyright holder by default operation of copyright law.  Well
done, Mr. Litigator!  You've just scored an own goal.

There are of course other parties who might sue (other than a licensee), 
and other matters that might be asserted.  But, for all such claims, 
the absence of court cases cannot be fairly be seen as indicating a weak
and possibly legally invalid licence.  It's rather more credibly seen as
the opposite.