[License-discuss] Ethical open source licensing - Persona non Grata Preamble

Tue Feb 25 00:00:50 UTC 2020

Thanks to those who provided constructive feedback. I'll try to address
some of the open topics that came up in a single email.

First off, I want to make clear: I'm not convinced licensing is the correct
place to address social justice issues. I'm not sure what's been described
is a good idea even IF folks decide it is the correct place. I'm mostly
interested in exploring the concept which is why we're on this thread.

On Fri, Feb 21, 2020 at 3:57 AM Johnny A. Solbu <johnny at solbu.net> wrote:
> The Free Software and Open Source movements are not about social justice,
but creating Free software. Free Software is about controlling our own
computing.

I would argue that controlling your computing IS a social justice issue. I
don't believe social justice is even possible in a modern society WITHOUT
user freedom.

On Fri, Feb 21, 2020 at 9:20 AM VanL <van.lindberg at gmail.com> wrote:
> It is true that the GPL family is famous for including a statement of
beliefs. But the difference is that those beliefs are software-centric, and
about the freedoms and permissions that people should have with regard to
the software. It is essentially a declaration of belief in Free Software,
which is not out of line for a FOSS license.
>
> But think about OSD #5, which prohibits discrimination against people or
groups, or OSD #6, prohibiting discrimination against fields of endeavor.
It is true that the PNGL would not vary the permissions granted, but it
would be a clear statement of discrimination against those groups,
including a declaration that they will be treated differently in the
acceptance of contributions.
>
> I also think that it is troubling that forced inclusion of the preamble
was essentially forcing speech on those who may not agree.

In regards to the first topic, I don't know that I see from an OSD or FSD
perspective why the beliefs in the preamble or whether they're consistent
in topic from previous license preambles matters. It may be strange from an
historical standpoint but I guess I don't follow why that'd make it
noncompliant.

In regards to forced speech, I think this is an already decided issue.
First, every license which requires a license notice on redistribution
inherently is forced speech: you have to share SOME SPEECH with other
people in exchange for the right to redistribute. You may not want other
people to hear about the copyright holder because they're a bad person,
like Hans Reiser. You may not agree with the way the license was written or
think it's confusing, like some folks view the Artistic License 1.0. You
may be a mostly proprietary software vendor redistributing a GPL licensed
application and not want your users to hear about the concept of free
software in the GPL preamble since it may hurt your business, which they
would in the preamble to the GPL. Most notably though, the OSI has approved
a set of licenses with preambles which go beyond simply stating why the
license exists and the value of software freedom and instead take an
explicit political policy position. If you look at the last full paragraph
of the preamble to the GPLv3 it reads:

Finally, every program is threatened constantly by software patents. States
should not allow patents to restrict development and use of software on
general-purpose computers, but in those that do, we wish to avoid the
special danger that patents applied to a free program could make it
effectively proprietary. To prevent this, the GPL assures that patents
cannot be used to render the program non-free.

This is not just an expression of why software freedom is good, it's
explicitly taking a position on government policy. Someone who wants to
redistribute GPLv3 licensed software may feel strongly that software should
be patented. They could be a company that makes money from software patents
or an attorney whose livelihood depends on filing software patents. If they
want to exercise the right to redistribute the software, they have no
choice but to repeat the position that "States should not allow patents to
restrict development and use of software on general-purpose computers" and
pass it along to their recipient. OSI and, I think, most of the folks here
decided at some point that it was okay to make redistributors share these
political statements through the GPLv3's preamble; I don't see how we can
say that other political statements are out of bounds under the OSD.

>From any understanding I've had of FOSS, I don't see how a preamble saying
the community's opinion is that an organization is unwelcome violates any
principle behind FOSS. The condemned organization is legally able to
exercise all the rights that one expects of FOSS-compliant software. THAT
SAID, the wording of the annotated OSD#5 doesn't seem to mention rights, it
just says the license can't discriminate. Every other annotation, except
for I think OSD#2, seems to reference legal rights using words like
"rights", "allow", or "restrict". Was this intended? Or is this an
oversight? And is this the way the annotation SHOULD be written?

OnSat, Feb 22, 2020 at 10:49 AM Thorsten Glaser <tg at mirbsd.de> wrote:
> In addition to that, it would require users to redistribute statements
> which may be diffamatory (unless the user can prove the contrary) or
> otherwise illegal in their legislation.

This was mentioned by a few people. If there are defamatory statements and
the statements being passed along as part of a license can be considered
libelous, it likely would violate OSD in my mind. One meta-issue is is what
level of legal risk to the user is sufficient to violate the OSD. This
seems to meet that standard but I'd be interested in knowing what we think
that bar is and what we think it should be.

While I didn't explain it well in my initial email, listing the name with
the reason they are excluded is the most aggressive of a set of different
ideas. Other options could be:

* List the names of organizations who are unwelcome but don't explain why.
* A general statement of morality and ethics without naming names
* List the name of the organization with a statement of disapproval that
isn't based on facts, such as "Fuck $ORG_NAME"
* Some mix of the above three

On Fri, Feb 21, 2020 at 3:04 PM Richard Fontana <rfontana at redhat.com> wrote:
> A license that has a preamble that singles out a particular
> individual, or organization, or even a specifically-described group,
> might have the effect of discouraging exercise of the
> nominally-granted license permissions by the singled-out
> person/entity/group. I mean, I think that is actually one of your
> goals, right?
I mean, that is the goal in this scenario. That said, I don't think that
means the license is in and of itself non-OSD compliant. Discouraging
use-cases that the copyright holder doesn't want is a pretty common reason
why copyleft licenses are chosen. That doesn't make the license or the
software non-OSD compliant; if the rights are protected, I don't see see
why discouraging those use-case more explicitly is out of line.

On Fri, Feb 21, 2020 at 3:04 PM Richard Fontana <rfontana at redhat.com> wrote:
> They could, but would such licenses be OSI-approvable? I'd assume and
> hope not. I guess you're assuming that they would be, since there's no
> obvious objective principle to explain why (for lack of a better
> label) "progressive" persona-non-grata-preamble licenses are
> acceptable from an OSD-conformance perspective, but anti-progressive
> ones aren't -- similar to a concern I have about some of the ethical
> source licenses.

I think in these cases, OSI would have to approve the template not the
specific license or have a standard on which ones can be submitted for
approval (used by enough software, meets some standard of quality, doesn't
explicilty violate the OSI code of conduct, etc.).  Otherwise, you would
have nothing to do BUT review licenses. :)

On Fri, Feb 21, 2020 at 1:26 PM Brian Behlendorf <brian at behlendorf.com>
wrote:
> One more practical and probably negative impact: it will always be easier
> to add new names than to remove old ones, because adding new names is a
> simple sublicense that can be done by anyone, but removing a name will
> require a relicense with the consent of every contributor who contributed
> under that license. So, in my facial-recognition example, I would likely
> as for assignment of the right to relicense from any contributor, so that
> I might be able to remove a name once they've cleaned up their act.
> Otherwise a list that can only grow becomes an embarrassment and
> ineffective at actually changing behavior, it just becomes a howl in the
> night. But centralizing IP (rather than a mere right to redistribute a la
> DCO / CLA) is something I think we've done well to avoid.

A few people mentioned this topic too. I had considered this but forgot to
mention it. One solution would be to have a versioning process controlled
by whoever the author designates. That would seem to imply that the license
would have to be modified though. That said, I don't think whether the list
of condemned entities is well maintained over time is relevant to
OSD-compliance. It does seem to be more of an issue of whether it's a wise
idea to use the license or whether someone should draft it.

On Sat, Feb 22, 2020 at 3:50 PM John Cowan <cowan at ccil.org> wrote:
> That is true, but not yet applicable.  So far we have only seen a request
to discuss the idea, and we have discussed it.  No request to draft a
license has been forthcoming.

As John said, I'm not drafting a license, this is more of a thought
experiment. I was encouraged by folks in the community, some of whom are on
this list, to bring this idea here for discussion.

Thanks to all who provided constructive contributions,

Eric

On Fri, Feb 21, 2020 at 3:28 PM Seth David Schoen <schoen at loyalty.org>
wrote:

> John Cowan writes:
>
> > In order for the attachment to propagate with the work, the license has
> to
> > specify that it can't be removed, though.   So, for example, you can't
> > attach it effectively to the GPL, because the GPL only says the GPL must
> be
> > preserved, and any additional terms that restrict the user's powers (in
> > this case the power to remove the attachment) can be deleted by anyone.
>
> It's more like the "front-cover texts" and "back-cover texts" in the
> GFDL, I guess.
>
> "... with the Front-Cover Texts being 'yay Republicans boo Democrats' ..."
> /
> "... with the Front-Cover Texts being 'yay Democrats boo Republicans' ..."
>
> Or maybe like the charityware notes in, say, vim, except with a
> discouragement to work with a particular group rather than an
> encouragement?
>
> In the old days I think I remember how much people appreciated that FOSS
> was collaboratively developed by people who had enormous disagreements
> with each other in other ways.  Sometimes it seemed like a point of
> pride or fascination -- "sir, I detest what you say (or do), but I run
> your code and you run my code", to misquote a misquotation of Voltaire.
>
> --
> Seth David Schoen <schoen at loyalty.org>      |  Qué empresa fácil no pensar
>      http://www.loyalty.org/~schoen/        |  en un tigre, reflexioné.
>   8F08B027A5DB06ECF993B4660FD4F0CD2B11D2F9  |        -- Borges, "El Zahir"
>
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-- 
Eric Schultz, Developer and FOSS Advocate
wwahammy.com
eric at wwahammy.com
@wwahammy
Pronouns: He/his/him
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