[License-discuss] Evaluating the Enforceability of a License Should Not be a Criteria for OSI License Review

[Roland Turner]

I suspect that the conversation is getting snagged on a false dichotomy: 
enforceability is not in fact a binary characteristic of a license, only 
of a license in the context of a specific dispute, with specific 
plaintiff and respondent, in a specific jurisdiction, on specific facts, 
at a specific phase of a legal process (trial vs. appeal), etc. The 
temptation to leap from "a license cannot be intrinsically enforceable" 
to "nothing can be known pre facto about a license's enforceability" is 
an erroneous one. The temptation to shoehorn into simple to understand 
discrete categories (particularly binary ones) is strong and often 
valuable, but also often incorrect, as in this case.

This problem is not unique to F/OSS licensing, it applies to all legal 
drafting[1]. The reasonable response is not to throw one's hands into 
the air and declare that because perfection is not possible, therefore 
no worthwhile outcomes can be achieved. It's to draft diligently.

For OSI I'd suggest that this means that a candidate license could 
reasonably declined with a recommendation to work with a legal 
professional to tighten up the drafting, if it is apparent during review 
that there are substantial omissions of conventional drafting practice. 
(Obviously, "substantial omissions" *also* doesn't fall neatly into 
yes/no categories. Subjective judgement is required.)

- Roland

1: It applies to all human creative endeavours in fact, even to 
programming where sometimes things can't readily be shoehorned into neat 
categories so some creativity must be employed to produce a 
useful-if-inelegant solution.

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On 26/10/23 07:47, Nicholas Matthew Neft Weinstock wrote:
> That's a really interesting way of looking at it:
>
> In order to be within the OSD, the license needs to be actually capable of granting the necessary rights/licenses.
>
> That's certainly true in other contexts.  If the license only grants the right to COPY but not MODIFY or DISTRIBUTE, it doesn't grant the rights necessary to satisfy the OSD.
>
> The same makes sense in the question of enforceability.  If the license is not able to grant the necessary rights because it is unenforceable, how can it grant the rights necessary to satisfy the OSD?
>
> On the other hand, the difficulty in this analysis is that some matters of enforceability might change over time.  If a provision was enforceable when OSI approved the license, and then the law changed and it is no longer enforceable, does the license status change?  How would that be identified, determined and enforced?  Or if a license was rejected due to lack of enforceability, and then the law caught up and the relevant provision is suddenly enforceable, would it be eligible for reconsideration?
>
> Maybe there are two sub-categories of "enforceability."  So if a provision is so poorly written as to be unenforceable, that's something to consider.  But if a provision is written well and it's a question of legality, this should not be considered.
>
> -Nick
>
> -----Original Message-----
> From: License-discuss<license-discuss-bounces at lists.opensource.org>  On Behalf Of Josh Berkus
> Sent: Wednesday, October 25, 2023 1:26 PM
> To:license-discuss at lists.opensource.org
> Subject: Re: [License-discuss] Evaluating the Enforceability of a License Should Not be a Criteria for OSI License Review
>
> WARNING: This email originated from outside of Qualcomm. Please be wary of any links or attachments, and do not enable macros.
>
> On 10/7/23 22:25, Patrick Schleizer via License-discuss wrote:
> >
> > Concerns regarding the enforceability of a license, especially across 
> > different jurisdictions, should not be a determinant in the approval 
> > or rejection of a license. Enforceability can vary significantly 
> > across different regions due to the diverse legal landscapes, making 
> > it a less consistent metric for license review. The issue lies in the 
> > fact that enforceability is largely subjective and lacks an 
> > independent, quick reproducible testing framework
>
> Nothing else in the OSD includes an "independent, quick[ly] reproduceable testing framework".  Why should enforceability?
>
> Nor can you separate enforceability from OSD evaluation.  If the license complies with the OSD only by means of legal text that is unenforceable in a majority of the world, then it doesn't comply with the OSD.  The author's intent doesn't matter if they weren't successful.
>
> We also regularly have licenses submitted that aren't written with legal advice and are so poorly drafted that they would not be enforceable anywhere at all.  Do you really think that the OSI should approve these?
>
> --
> Josh Berkus
>
>
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