[License-review] License-review Digest, Vol 119, Issue 14

[Pamela Chestek]

On 8/26/2023 2:41 AM, Legal Desk via License-review wrote:
> Please see our attempt to bring clarity to the submission checklist 
> above:
> OSD 5. No Discrimination Against Persons or Groups
>  (Y) The license *DOES NOT* discriminate against persons or groups. 
> There is Article 5 in the License, which observes the ''Exclusion'' 
> rights of the Authors and Contributors, in the context of 
> Exclusion≠Discrimination.
> ''Any person or group can receive the redistribution Grant, become a 
> Licensee, or a Licensor(see definitions) and use the Work for any 
> field of endeavour.'' /Let's consider one(1) real-world example;/
>
> Step 1: 1st Jan 2023: License grants the rights to *ANY* person.
> /License does not discriminate whether the legal persons are extremely 
> violent groups like terrorists, hackers, or data merchants, the grant 
> is immediate, and the 'non discriminated' entity begins to use the 
> Grant. /
>
> Step 2: 1st Jan 2023: The person enjoys the *NON* discriminated rights 
> and redistributes.
> /just like everybody, the 'non-discriminated' entity redistributes 
> Work, but triggers Step 3 below./
>
> Step 3: 30th Feb 2023: Trigger: /'non-discriminated' entity turns into 
> a 'bad actor'/
> e.g. 'intentionally' 'uses' the attributed Work for systematically 
> crashing the autopilot function of an automobile or an aeroplane.
>
> Step 4: 30th Feb 2023: Cognizance of the trigger;
> /The*intended* 'use' or 'purpose' or 'both' are made cognizant to the 
> Licensor in a litigation or suo moto./
>
> Step 5: 30th Feb 2023: Invoking Article 5 to revoke the grant.
> To avoid any further such type of ''intended'' use of the Grant by 
> that ''bad actor'' Licensee.
>
> So, a revocable grant is the feature of the license, in Step 3. We can 
> also treat Article 5 provisions for a post-incidence legal control, 
> for the protection of other Licensors and Licensees, ''reusing'' the 
> Grant.
>
> Therefore,
> a. It is our request to the Chair, License Committee, to please 
> clarify/or disclose your understanding of Article 5 to 
> substantiate/refute/establish whether Article 5≅OSD 5 spec.
>
> b. Secondly, are there any
> (1) /latest/, (2) /consensus-driven .../guidelines for the License 
> Submission Process, which are */specific and highly contextual to AI 
> systems/* so that we can use them for a ready reference? i.e. do we 
> have a consensus on the definition of what ''open source'' really 
> means in the context of the redistribution of AI systems, ? This 
> submission is based on the ones updated on 22nd Aug.
>
> Thanks and have a great weekend ahead.
>
>
> Additional Note on the thread above;
> (Y)*except*Article 5 which sets up the relinquishment of rights 
> or .......................................
> >>Explanation: /''except''/here is a caveat to indicate the presence 
> of Article 5 to the list members, in order for a focused review of 
> Article 5, and disambiguate any congruence b/w OSD written guidelines.
>
The submission guidelines state "Every possible variation of the 
application of the license must meet the OSD." The license discriminates 
against persons or groups at Step 3 in your hypothetical, when someone 
becomes a "bad actor" by engaging in behavior that your license has 
defined as unacceptable and the license is then revoked. At that point 
you are discriminating between "bad actors" and "good actors." These 
types of restrictions are never approved as open source licenses, no 
matter how well-meaning.

Pamela Chestek
Chair, License Committee
Open Source Initiative
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