[License-discuss] The per se license constructor

[Brendan Hickey]

On Fri, Mar 15, 2019 at 4:41 PM Smith, McCoy <mccoy.smith at intel.com> wrote:

> *>>From:* License-discuss [mailto:
> license-discuss-bounces at lists.opensource.org] *On Behalf Of *Bruce Perens
> *>>Sent:* Friday, March 15, 2019 1:31 PM
> *>>To:* license-discuss at lists.opensource.org
> *>>Subject:* [License-discuss] The per se license constructor
>
>
>
> >>I thus feel all such things should be rejected, although the reason is
> entirely outside of the OSD.
>
>
>
> At the risk of arguing against my own interest (I’m a lawyer), requiring a
> submitter to retain a lawyer in license drafting and/or review is a
> potential barrier to entry (lawyers being expensive) and could come across
> as the process being taken over by lawyers (and possibly even a limited
> group of lawyers).  I’m not sure that helps with the perception issues
> other are expressing in threads the past few days
>
>
> Drafting or review by a lawyer is no guarantee of quality, and I’d submit
> that drafting and review by a non-lawyer is not a guarantee of non-quality
> (pardon the triple negative).
>

McCoy makes an excellent point here. Does legal review exist primarily as a
barrier to weed out low quality or inappropriate submissions, or does it
serve another purpose?

I don't believe, as Bruce suggests, that it acts to reduce risk to license
users. Suppose that Bob hires Alice to review a hypothetical Malicious
Compliance Free Software License (MCFSL), which attempts to abide by the
OSD in the worst way possible. Alice is Bob's attorney, not mine. Her
opinion on the fitness of the MCFSL applies to her client, not me.

The legal review requirement is also fairly weak. An oil and gas attorney
can tell you all about mineral leases, but they don't necessarily have
useful advice when it comes to copyright.

Perhaps legal review is there in part to raise the bar and filter out
noise. In that case we're doing a disservice to submitters by providing
feedback so late in the process. There are entire conceptual classes of
licenses that can be rejected without access to the full license text.
Licenses that require royalties, for example. No one should be hiring an
attorney to draft a license that will be rejected out of hand.

Brendan
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