[License-review] Submission of OSET Public License for Approval

[Meeker, Heather J.]

Hi Josh, thanks for your message.  These are great comments, and I appreciate your thought and care in posing them.  Thank you for lending your developer's perspective here.

1. Governing law and venue provisions
These days it is not common to include governing law and venue provisions in open source licenses.  If there is not a governing law provision, however, that does not save a developer from having a particular governing law thrust upon him or her.  In the absence of a law selection provision, a court enforcing a license has to pick some body of law to use, but the choice of law may be unpredictable.  U.S. law will usually be applied in a U.S. dispute.  (That's an oversimplification, of course.  The rules for choice of law can be complex, and in the U.S. we have overlays of state and federal law.)  Now, a developer might want to choose the venue for enforcement (via and IP infringement action), and might therefore influence the choice of law that is applied to an enforcement action.  I take your point that most open source licenses don't proscribe that choice.  I don't have a solution for that, but the Eclipse Public License and CECILL License, for example, were approved by OSI despite a law selection provision.

2. Ability to adjust terms downstream
This provision says you can "place additional conditions on the right granted" and that would not include additional grants of rights or waiver of conditions.  That distinction may sound like a legal technicality, but in open source licensing there is an important difference between license conditions -- which narrow a grant of rights -- and granting additional rights or removing conditions.  For example, in most copyleft licenses, you cannot place additional conditions on the exercise of the license at all, or remove any condition.   Our variation is actually very narrow -- only as required by law.  I take your point that states can pass crazy laws.  But if a law says a state can't use the software for elections except with restriction X, and the license (such as GPL) says you can't impose restriction X, then the state cannot use the software at all, and we are trying to avoid this result.

I hope this is helpful.  

Best regards, Heather

-----Original Message-----
From: Josh Berkus [mailto:josh at postgresql.org] 
Sent: Wednesday, September 02, 2015 1:12 PM
To: License submissions for OSI review
Cc: Gregory Miller; John Sebes; Meeker, Heather J.; christine at osetfoundation.org
Subject: Re: [License-review] Submission of OSET Public License for Approval

Heather,

> The Open Source Election Technology Foundation (OSET) is pleased to
> submit the OSET Public License (OPL) for OSI license review and for
> discussion with the larger community.   We believe the OPL falls into
> the special purpose category.  We coordinated the drafting of this
> license, with review and input from other lawyers both within and
> outside of the Open Source Election Technology Foundation (OSET). 

Howdy!  As always, it's a pleasure to read anything you submit because
of the extensive thought and thorough preparation which went into it.
Of course, you've given us enough material to read in order for it to
take a while.

Please understand that questions I'm asking below are from The Developer
Perspective (tm), as I am not an attorney.  And I'm picking nits because
overall I think this is a good license and there is sufficient reason
for it to exist.

A. Governing law and venue provisions

I understand the need for these.  I am concerned that this limits
potential contributions or downstream modification by parties in other
countries, however.  I know that non-US venues are not OSET's main
concern, but there are many other countries who could use open source
election software, and don't trust the USA's legal system (with reason).

I don't think this is a violation of the OSD, just raising it as a concern.

D. Ability to adjust terms downstream

This seems problematic in that it might involve a grant of rights which
upstream code contributors did not intend, or agree, to grant.
Particularly, I'd be concerned about cases where there's a "favored
contractor" with a sweetheart agreement which allows exclusive rights to
all software in a jurisdiction to be given to them (such things happen).
 For example, I can completely imagine some county in Ohio passing a
regulation which waives license compliance entirely for Diebold.  Given
this loophole, I would personally be reluctant to work on OSET software.

It seems to me that there needs to be some limitations on clause (4) in
terms of what parts of the license can be waived, and which can't.

--Josh Berkus