[License-review] Some notes for license submitters

[Kyle Mitchell]

On 2018-06-20 02:06, Bruce Perens wrote:
> On Wed, Jun 20, 2018 at 1:02 AM, Kyle Mitchell <kyle at kemitchell.com> wrote:
> >
> > The majority of open source contributors and companies I've
> > worked with see the identity of "open source" and license
> > terms as historical trivia.  They usually haven't heard of
> > OSI or OSD until I mention them, and OSI would seem _less_
> > "open source" in their eyes for hosting its own mailing list
> > to avoid GitHub.
> >
>
> Actually, these folks sound like proprietary software developers. We can
> get some of them to make Open Source. But making Open Source into
> proprietary software to attract them wouldn't help anyone.

That's jumping to a quick conclusion!

Lots of open source development goes on via GitHub.com.
GitHub has been around 10 years.  Did using SourceForce, in
its earlier days make one a proprietary tribesman?

> > license-review shouldn't pretend they don't exist, or that they're all
> > unread fools who'll grow up, do their homework, and start paying dues.
>
> Yeah, but when I asked you to introduce me to even one of them, it didn't
> happen. So, I am still treating them as if they don't exist until you
> actually show me that they do.

Folks interested in a strong reciprocal license aren't the
anti-license crowd.  Quote the opposite.

You asked, by the by, after a long back-and-forth by private
mail, where you questioned my intelligence, my integrity,
brandished professional ethics action, and more or less
threatened to rally a posse.  No, Bruce, I'm not introducing
you to my braintrust.

> > Those proprietary licenses run on the same copyright operating system open
> > source does. The functionality is there.
> >
>
> Yeah. You can use steel to make swords or ploughshares. We like being on
> the side that shares software that everybody can use, modify, and
> redistribute for any purpose. That's where we drew the line.
>
> We are asking of you only one thing. Go forth and use your license. We are
> not stopping you. Just don't call it Open Source.

You are asking that.  I have heard nothing from the board.
If the board responds that the license fails OSD, and cites
a reason, based on the text or otherwise, that's different.
I don't know how to get to that point.

I brought the license here to try to do with one structured
conversation what users of the license might otherwise have
to do in many, distributed conversations.  In part because,
despite my protests, folks were already calling the approach
open source.  By their meanings of open source, they're not
wrong.  I was wiling to invest the time to bring them, and
the project, closer to the fold.

> > Perhaps so many years back, a hard line on use restrictions felt like it
> > had a shot.
>
> There was an extensive history of use-limited software both before and
> during Open Source. It had names like "shared source", "non-commercial",
> "educational use only". Some of it was mounted by the world's richest
> companies, with a goal of replacing Open Source. Their budgets were
> tremendous and ours essentially zero. We know just how successful they were
> at building community - not at all. Essentially all of the players
> eventually saw how much better we were doing with Open Source and decided
> to go with Open Source licenses.

My comment was in the context of "synthesizing" a
quasi-distribution, use-based right for network copyleft.  I
meant a hard _legal_ restriction on copyright licenses,
preventing copyright licensors from enforcing conditions
drafted in terms of use, rather than the 106 exclusive
rights.

So when FSF writes:

  Also, at least under US law, a copyright-based source
  license can't restrict use of the program; such a
  restriction is not enforcible anyway.

  https://www.gnu.org/licenses/hessla.en.html

I don't believe that's legally accurate under current US law
and settlement dynamics.  Though many would have preferred
it go that way ten years ago.

> > Don't forget OSL!
>
> Don't make me plow through OSL guessing what text you mean.

  5) External Deployment. The term "External Deployment"
     means the use, distribution, or communication of the
     Original Work or Derivative Works in any way such that
     the Original Work or Derivative Works may be used by
     anyone other than You, whether those works are
     distributed or communicated to those persons or made
     available as an application intended for use over a
     network. As an express condition for the grants of
     license hereunder, You must treat any External
     Deployment by You of the Original Work or a Derivative
     Work as a distribution under section 1(c).

https://opensource.org/licenses/OSL-3.0

> > Or GPLv3, section 2, paragraph 1, for that matter
> >
>
> I think you're misinterpreting it.  GPLv3 section 2, paragraph 1:  *The
> output from running a covered work is covered by this License only if the
> output, given its content, constitutes a covered work. *This means that you
> can't persuade the program to output its own source code and thus claim to
> have the same work in the public domain. This existed in GPLv2 as well:
>
> *the output from the Program is covered only if its contents constitute a
> work based on the Program (independent of having been made by running the
> Program). Whether that is true depends on what the Program does. *

You deleted my ":-P"!

> > Part of what inspired L0-R was holes in AGPL's coverage. Dev tool authors
> > want a reciprocal license.
> >
>
> And they can have one. But it's not an Open Source license and should not
> be called one.
>
> > To my knowledge, there was no short, academic-style, hacker-administrable
> > reciprocal public license form until L0-R, especially the 2.0.0 draft.
> >
>
> See the Sleepycat license for one. Very old and not the text I'd have them
> use today, but the intent was to have the terms of the GPL without the
> philosophy.

A BSD variant.  As was L0-R, as originally proposed.

AFAIK, Sleepycat was never standardized as a template.  It
also falls far short of "reciprocal" as I mean that term
now, and as the RPL folks apparently meant it a couple years
later, in 2001.  Not so much as a network trigger.

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