[License-discuss] For Discussion: Cryptographic Autonomy License (CAL) Beta 2

[VanL]

Hi Bruce,

On Tue, Aug 13, 2019 at 2:09 PM Bruce Perens <bruce at perens.com> wrote:

>
> In a discussion like this, you can expect people to disagree, and to *continue
> *to disagree. It seems to me that if we are all going get along, the
> appropriate response to such disagreement is *not *to take a strident
> tone and recount how many times you have attempted to correct me, as if you
> were a harried school teacher facing a recalcitrant pupil.
>

This is a completely fair point, and I apologize for the tone.



> The CAL does not encumber any data. It does not change the licensing on
>> any data. Please respond with the specific text that "encumber[s] data
>> processed by the program."
>>
>
> The terms very obviously require the licensee to perform a specific action
> with the data. If this is not "encumberance", what is it?
>

I understand the term "encumber" to place a continuing obligation on the
data, such that each subsequent holder of the data would also be bound by
the obligation. This is the way in which this term is used in
legal/licensing parlance.

The CAL does require that a licensee make available the user's data to the
user, but it does not impose restrictions on how the data is used, nor do
any obligations persist after any transfer of the data. Thus, the CAL has a
condition on the license, but not an encumbrance on the data.

"Withholding user data" isn't a field of endeavor, just like "withholding
>> source code" isn't a field of endeavor.
>>
>
> Of course development of proprietary software, sequestration of its source
> code, and making use of copyright and trade-secret protection is a *very
> popular* business method in the industry and can indeed be considered to
> be a field of endeavor. We have already discussed on this list, and
> license-review, why OSD #6 does not prohibit reciprocal licensing even
> though this is so. I doubt that you really mean to open that discussion
> again.
>

I am not reopening that discussion, but merely referring to it as being
analogous.

But with reference to the "field of endeavor," I go again to OSD #6: "6. No
Discrimination Against Fields of Endeavor: The license must not restrict
anyone from making use of the program in a specific field of endeavor. For
example, it may not restrict the program from being used in a business, or
from being used for genetic research."

I understand the irony of quoting this to you. But looking at what was
written, use "in a business" or "for genetic research" clearly refer to
overriding purposes of the use, and not to any particular tactics. If
"field of endeavor" is defined as a tactic, and not a purpose, then we fall
afoul of Fontana's* reducto ad absurdum *where any restriction can be cast
as a violation of OSD #6 because it could potentially interfere with a
hypothetical licensee's permission to do the opposite.

The CAL does not prohibit (or even mention) any purposes for which the
software can be used; it is completely agnostic in that fashion.

So I would challenge you: What is an articulable, non-gerrymandered rule
that says "you may use this for any field of endeavor" that allows current
licenses, but disallows the CAL?

Thanks,
Van
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