[License-review] OSD #9 would not make SSPL OSD-incompliant

[Brendan Hickey]

On Wed, Oct 24, 2018, 16:52 Kyle Mitchell <kyle at kemitchell.com> wrote:

> OSD 9 clearly protects distributors from license compliance
> troubles triggered "in transit".  In that, it's comparable
> to hazardous material shipping regulations for common mail
> and cargo carriers, which resonates with the metaphor in the
> DFSG heading: "contamination".  In effect, it shields the
> volunteer and commercial distributors Debian relies upon to
> this day, and those who followed their lead for other
> communities.



Being clear from the text, OSD 9 supports a claim of
> consensus on that point.  Anyone who objected to that
> meaning would have known to speak up.
>

You're reaching here. While OSD 9 certainly protects distribution of other
software, the enumeration of this freedom should not necessarily be
construed to limit its scope. Even if Bruce never intended for the titles
to be anything but merely descriptive, that ship has long since sailed. No
one spoke up because we didn't think an example limited the principle.

Again I'll point to Mongo's own explanation for why the SSPL compiles with
OSD 9: "The SSPL does not place any restrictions on the use of any other
software, only conditions." No one who thought #9 turned on distribution
would make this argument. They would simply say, "Clause 13 does not rely
on distribution, so OSD #9 isn't relevant." You might ask what difference
it makes what Mongo thinks. In this case, they'd really prefer that OSD #9
not apply. We have a sophisticated, motivated actor who is rejecting a
narrow interpretation. That's some fairly strong evidence that people who
have been paying attention didn't believe the explanatory text served to
limit the scope of OSD 9. Besides, at the end of the day the board uses
their judgement when deciding what to approve. They aren't beholden to a
particular interpretation.

>
OSD 9's language is _not_ a clear protection for proprietary
> software producers from copyleft.  Some might like it to be,
> and to replace "other software" with something more
> administrable.  Some might like to add more examples, to
> stretch the text that's already there.
>

OSD 9 protects software that does not constitute a derived work, be it
proprietary or open. This principle delineates of the boundaries of open
source licensing. Imposing restrictions on anything but derived works is a
step too far. A compiler that legally encumbers its output might be nifty,
but it ain't open source. (It's also a terrible idea for any number of
practical reasons.)

Keep in mind the OSD is not a license, it is not a contract, it is not a
legal document even in the vaguest sense. Pretending that it's anything
other than a manifesto is a mistake. If there are holes in that manifesto,
we should fix them rather than clinging forever to some particular
embodiment of principles.

Brendan

>
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