[License-review] License drafting quality and process [was Re: Comment on MOSL and similar licenses]

[Richard Fontana]

On Thu, May 30, 2013 at 12:52:33PM -0700, Josh Berkus wrote:
> Luis, All:
> 
> Personally, I don't have a problem with making legal review a de facto
> requirement of submitting a new license.  It's a good threshold of
> seriousness for developers wanting to craft their own licenses.  While
> the goals of not imposing financial barriers to licensing are all nice
> and public-minded, every single license I've seen submitted to this list
> without prior legal help over the last 2 years was a complete waste of
> time, for both us and the submitter.

It is probably true that such licenses were a waste of time. I just do
not see why one would assume that consulting an arbitrary attorney
would on average have resulted in something better (whatever that
means here -- conformance to the OSI definition, which is not
something that lawyers are trained to interpret? Nonduplicativeness,
which also is not something lawyers are more competent to judge than
nonlawyers? The vast majority of lawyers, even the vast majority of
that subset which specializes in copyright or software licensing, have
at best passing familiarity with open source and its cultural and
legal traditions).

Some of the most problematic pseudo or questionably-FLOSS licenses
I've seen over the years clearly *were* drafted with legal help.
Licenses drafted with legal assistance do tend to look different from
those that aren't -- more 'professional', perhaps -- but that doesn't
mean one is better than the other if the concern is maintaining the
integrity of the system of open source licensing. And the licenses
promoted by the OSI as being 'popular' or 'widely used' are far from
being free of legal flaws.  I will admit that it is often lawyers who
are good at identifying those flaws, but these are not going to be
lawyers retained by the license proposer for assistance with drafting.

 - RF