[License-review] Some notes for license submitters

[Kyle Mitchell]

I recall I saw a post of yours on Twitter to the effect that
"open source" means nothing more or less than OSD
conformance.  That didn't track what I was reading on
license-review, so I replied.  You called me, we talked for
a spell, and I asked your permission to summarize for the
list.  You agreed, and that's when I copied you in.

https://twitter.com/BrucePerens/status/912495338962903040

http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2017-September/003129.html

I'm grateful for your return, though we found many points on
which to disagree.  I think we might agree that there are
entirely too many ways to get ahold of people these days!


re legal threats:

I'm sorry to hear there have been threats against OSI,
especially if they came out of license-review.  Beyond the
pale.

At the same time, selfishly, I'm happy to think you
didn't have me in mind.


re ethics rules:

The Supreme Court of California just passed new ethics rules
for the California Bar.  I'm not sure how the question maps
onto the new rules, which supposedly bring California more
in line with other states.  I have the new rules on my
reading list, like most of my colleagues.  One for the read.

But the general category of concern is as old as printing.
Lawyers---plus not-so-lawyers and companies that aren't law
firms---have long published form agreements and other
documents, and for a price.  These uniformly come with
disclaimers and warnings that legal terms are serious,
there's no one-size-fits-all document, using a form doesn't
make you a client, documents alone don't substitute for that
kind of relationship, and so on.  I've had an eye out for this
for a few years now, for my work on open form publishing.
The practice is uniform, but the specific language
publishers use certainly isn't.

I would be _very_ surprised to see legal or professional
liability for a remotely competent public software license
offered for free online, by a lawyer, by a commercial
concern, or by a lawyer working for a commercial concern,
which is common.  It's true lawyer regulation does _not_
allow lawyers to disclaim liability for their work as
extensively as programmers can, at least under most US law.
That's especially true within the context of an
attorney-client relationship.  And especially when the
lawyer isn't working pro bono publico.

There is scary case law holding attorney-client
relationships formed in pretty tenuous circumstances.  Often
with evidence the lawyer was gunning aggressively for
business, or acting sleazy by any standard.  But clamping
down on publication of broad-use legal documents would have
terrible effects on other core policy objectives of lawyer
regulation: wider access to legal services, ensuring
competent service, and advancing the state of legal practice
knowledge.

OSI itself developed, published, and approved licenses.  I
don't think Larry's licenses took off quite as he hoped.
But they've helped educate a whole generation of licensing
wonks, this one included, along with his book and other
writing.  OSL and AFL both included warranties that remain
distinctive among OSI-approved licenses.  From another point
of view: potential "gotchas" buried deep in their texts.
But I don't imagine Larry loses sleep over whether someone
will get sued for breach of warranty and come after him.  Or
OSI, for that matter.

Alas, there is much that programmers do not understand,
including other programmers' software, on which they also
rely.  In arcane law, as in arcane software, I favor
openness, iteration, and competition of ideas over
filtering, stricture, and coddling.  Embrace diversity,
wheel reinvention, and forks galore.  See what thrives in
the times and the environment.  Expect change.

But that's just the old open ideology showing through.

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