[License-review] Evolving the License Review process for OSI

Luis Villa luis at lu.is
Sat Jun 1 15:25:23 UTC 2019

On Fri, May 31, 2019 at 7:00 PM John Cowan <cowan at ccil.org> wrote:

> On Fri, May 31, 2019 at 7:47 PM Luis Villa <luis at lu.is> wrote:
> Imagine trying to understand US constitutional law if all you had were
>> clerk's notes of the US Supreme Court's lunch discussions - that's roughly
>> what being told "you can understand the OSD by reading the mailing list
>> archives" is.[1] A set of rules that is literally incomprehensible, because
>> the associated record-keeping is terrible, is hardly worth being called a
>> set of rules.[2]
> As you know, that is simply the way that common-law legal systems work.
> Although there are many areas of the law that are now codified, there are
> still many where THE LAW is only to be found by looking into a huge mass of
> decisions to try to find the rationes decidendi -- and the record-keeping
> is far from ideal, especially in older cases and ones decided by lower
> courts.  Insofar as the OSI Board is like a court at all (in many ways it
> is more like a deliberative assembly), it is both a court of first instance
> and of final appeal, except for the appeal to public opinion ("The Supreme
> Court follows the election returns." --Finley Peter Dunne).

That's an approximately accurate summary of modern[1] common law systems,
but the analogy doesn't work.

Judges in modern common law systems issue written decisions which summarize
and restate the facts, key arguments, and reasons for decisions, and a
variety of systems regularly refine and condense those decisions further.
OSI does nothing of the sort. It's as if the common law were composed of
records of depositions.

We have Westlaw/Nexis (Google!) We just don't have anything sane or
reasonable for Google to make sense of.

> On Fri, May 31, 2019 at 8:41 PM Heather Meeker <heatherjmeeker at gmail.com>
> wrote:
> +1 on all of this. The purpose of "guarantees software freedom" is either
>> (1) to reserve to OSI unfettered discretion, which removes all transparency
>> from the approval process, or (2) to articulate some kind of meaningful
>> condition, in which case it fails due to vagueness. If (1), please be
>> candid that the standards are arbitrary and allow the community to judge
>> the legitimacy of OSI's authority on that basis.  If (2), please fix it.
> That is most certainly a false dilemma: absolute discretion vs. what A. P.
> Herbert called "devoted and mechanical adhesion to precedent".  People who
> decide things, whether we call them judges, managers, or ISO registration
> authorities, operate using a body of practice which is neither rigidly
> codified nor wide open.

Most people who decide things _well_ operate somewhere between absolute
discretion and mechanical rule following. There is of course inevitably
some discretion within the OSI process, but it's historically been
understood that there must be _some_ reference to precedent and the OSD.
With this change, OSI has swung _radically_ towards absolute discretion
with no reasoning, explanation, or justification. It's a
get-out-of-jail-free card for having to explain anything.


[1] The English didn't do this to start! All decisions were oral, and the
Reporters were literally reporters who took notes (sometimes conflicting!)
on those oral decisions. It was a mess, and lead to a variety of
injustices. That's why in modern common law systems judges are expected to
issue written, reasoned judgments. OSII, again, does nothing of the sort.
It's as if the brits had decided in the mid-1500s "good enough, don't need
to refine this further".
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