[License-discuss] The Scope of the OSD (Was For Approval: The Cryptographic Autonomy License)

Pamela Chestek pamela at chesteklegal.com
Mon May 13 14:38:51 UTC 2019

Moved to license-discuss, since it's not specifically about CAL.

On 5/11/2019 1:48 PM, Smith, McCoy wrote:
> I’m with Luis on this.  I laid out a test at CopyleftConf on how I
> personally think the decision process should go:
> 1.      Licenses should be evaluated solely on their fidelity to the
> standards of freedom/openness, and the quality of their drafting in
> meeting those standards
> a.      Experimentation is not necessarily a bad thing
> b.      Even failed experimentation
> 2.   


> I do think it ought to be made clear, though, whether Freedom Zero is
> part of the OSD. I think we’ve had some debate in the past as to
> whether it was (I think it is inherently so, but I don’t see that the
> OSD makes that explicitly clear).  If it is not, I don’t see how
> that’s a valid reason to reject any license.

A hard rule of "if you can't name an OSD the license doesn't meet it
must be approved" doesn't leave room for stuff that we all clearly agree
doesn't belong, what I think of as the Section 101 problem for open
source licenses.* What if it's just outside the concept? Say I write a
license that is a grant of all patent and copyright rights but as the
only condition of the license you have to come to my house and feed my
goats on Fridays. I don't see any definition that doesn't comply with,
so it should be approved as an open source license?

You can contort OSD 5 and 6 to justify it, "you're excluding people who
don't live near you!/are allergic to goats!/are doing more socially
beneficial things on Fridays!" As Richard Fontana said earlier in the
CAL thread, you can rationalize OSD 5 & 6 to claim discrimination for
any limitation. GPL discriminates against those who won't add their name
to a modified file (Section 2(a)) because they are being harassed for
working in free software. So I am skeptical of any theory under OSD 5 &
6 because you can always find someone who hypothetically is being
discriminated against.

How do you address the "outside of the scope" problem?


Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pamela at chesteklegal.com

*A reference to Section 101 of the Patent Act, which describes what is
patentable subject matter. There is a school of thought that patents
cannot be invalidated simply because they don't meet the requirements of
Section 101.
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