[License-review] For Approval: License Zero Reciprocal Public License

[Kyle Mitchell]

On 2017-10-19 22:10, John Cowan wrote:
> On Thu, Oct 19, 2017 at 7:58 PM, Kyle Mitchell <kyle at kemitchell.com> wrote:
> > Might I ask what those policy grounds are?
> >
> > A number of folks, on the list and off, have mentioned
> > policy considerations separate from OSD conformance.  Not
> > everyone seems to agree OSI should do more than apply OSD,
> > but in conversation with most of those who do, I'm at a
> > loss.  There doesn't seem to be any document setting out
> > what OSI's additional policy constraints are, or what, if
> > any, relationship they have to OSD itself.
> >
>
> That's deliberate.  Jurisprudentially, the OSD is in the nature of a code,
> but OSI's (self-assumed) jurisdiction is in the nature of equity: it
> approves licenses based on what the Board members believe to be right and
> just.  Licenses that violate the code will not be adopted (although in some
> cases licenses have been approved that on some readings don't agree with
> it), but there is no guarantee that licenses that conform to the code will
> be adopted.  This is a fact about how OSI operates, and while it may be
> frustrating, there is nothing you or anyone else can do about it.

Good to hear from you again, John.

Two thoughts here, one concrete and one more general:

First, if this is indeed a fact of how OSI operates, it
ought to say so publicly, on https://opensource.org/approval
and elsewhere.  And it ought to be careful that "right and
just", however defined, color well within the lines of its
nonprofit and tax-exempt statuses, its stated mission.  The
obvious prescription there is legal advice and transparency,
in that order, and in appropriately measured quantities.

I come in peace, in admiration for OSI and what it's
achieved.  That's why I bothered in the first place.  If OSI
needs to press pause on this process to look after that
weightier one, so be it.  But OSI cannot and should not
become a closet (c)(6) that _defines_ Open Source to include
values-forward, copyleft-empowered community spirit, while
in practice _approving_ only terms that certain kinds or
sizes of business players, users, or constituents prefer.

Second, as a practical matter, law and equity merged long
ago, both in England and in the United States.  The old
maxims of equity still float around, show up in court
opinions now and then, because they're fun and sound
prestigious.  But it's long left legal propriety to glance
over rule by men, rather than by laws, under the cover of
vague, discretionary fallbacks kept intentionally vague.  We
expect written opinions and adherence to precedent on equity
matters, too.  It's that transparency thing again.

On a practical level, you're absolutely right.  If L0-R ends
up OSD-conformant, but not OSI approved, there will be
little I can do about it but point back to this
license-review thread, and admit that I myself tried and
failed to suss out the difference.  I don't want to end up
there.  It's bad enough telling the folks who
enthusiastically share L0's _noncommercial_ option as a
solution to "open source sustainability" that they should
read opensource.org and mind their capitalization.

If the Definition needs to be refined or amended, let's
start that project.  I'll chip in.  If OSI needs a
living-document statement of additional policies and values
to uphold in its approval process, I'll help there, too.
Even if it ends up cutting L0-R out.

But for God's sake don't tell the open software community,
of all people, that their identity's defined by an opaque,
bureaucratic rite on a mailing list, overtly camouflaging an
arbitrary decision process that can't be changed, no matter
how frustrating it may be.  I couldn't defend that.  I don't
know anyone my age or younger who'd want to try.

-- 
Kyle Mitchell, attorney // Oakland // (510) 712 - 0933