[License-review] For approval: The Cryptographic Autonomy License (Beta 2)

[Pamela Chestek]

On 8/23/2019 12:51 PM, Josh Berkus wrote:
> On 8/22/19 4:54 PM, Pamela Chestek wrote:
>> On 8/22/19 7:20 PM, Simon Phipps wrote:
>>> I on the other hand disagree with characterising what Van has clearly
>>> framed as a requirement arising from use of the software with the
>>> generic term "data restriction".  As others have pointed out, the
>>> requirement arises from the licensing of the software and does not
>>> mutate into a restriction or requirement uniquely associated with the
>>> data.
>>>  
>> Disclaimer: Personal view.
>>
>> I don't follow your distinction. All objectionable impairments can be
>> framed as conditions on the license. "This license is granted on the
>> condition that you water my plants on Thursday." So plant-watering is
>> properly the subject matter of an open source license?
> Your argument seems to be that extra conditions (ones aside from the
> copyright on the code itself) on the license are never acceptable in an
> open source license, no matter what those conditions are.
>
> But the body of approved licenses argues against you.  We have many
> licenses that have conditions around both patents and trademarks.  So
> the de facto policy of the OSI is clearly that extra conditions *are*
> acceptable if they enhance freedom (or some other criteria).  Deciding
> otherwise would require invalidating some of the most popular licenses
> in the world.
>
> Many licenses, including Apache, GPLv3, and others, include a patent
> grant as part of the license.  The CAL includes a patent grant and that
> portion of the license was completely noncontroversial; nobody even
> remarked on it.
>
> Why is a patent grant noncontroversial, but a data grant is
> controversial?  The CAL data grant is an extra condition that enhances
> user and developer freedom.  Why wouldn't we allow it, the same way we
> accept patent grants?
>
This is a further expansion and so it's fair to discuss whether the
expansion is appropriate.

To break it down, there are some terms that have been widely accepted as
permitted, such as disclaimer of warranty or a requirement that the
attribution not be removed. No one disagrees with those. As to patent,
this is fair subject matter because the patent license is necessary to
running the software, so there can be no software freedom without the
patent grant. The licenses that mention a trademark only say that it's
not a trademark license grant, or that the grant is only insofar as
needed to comply with the license. So the absence of these grants would
mean you can't use the software, and it is therefore rational for them
to be a part of an open source software license.

I don't see how data fits that model, or at least how it does in this
license. In what way would the ability to use the software fail if the
"No Withholding User Data" clause didn't exist? I understand that it may
be true for certain types of software, I assume the software that is the
intended use case for this license. I'm open to understanding it; I can
be convinced but it hasn't happened yet. Even if convinced though, I
suspect my view will be that the use of the license has to be cabined in
some way to that particular use case and not susceptible to use with
types of software where it simply creates an additional collateral
burden for the user, the same as watering my plants.

I reiterate what Bruce said, I think the goal is very valid and
laudable, I just have not been convinced that one may impose this kind
of obligation and still call it an open source license.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com