[License-discuss] Ethical open source licensing - Dual Licensing for Justice

[Eric Schultz]

(For full background, see previous thread)

Before beginning, I strongly discourage anyone from using these ideas with
out talking to a lawyer; licenses are complex tools and the law is not kind
to those who violate it, particularly marginalized people. I also think a
far more diverse forum than this mailing list or Twitter are the proper
places to address these issues. And as always, I am not a lawyer.

My second idea is called Dual Licensing for Justice. I'll describe the idea
first and follow with a list of open questions I have about the idea.

Description:
The idea for Dual Licensing for Justice comes from, you guessed it, dual
licensing and my own experience with the [license for the Houdini Project](
https://github.com/houdiniproject/houdini/blob/master/LICENSE) which I help
lead. It's additionally inspired by the GPLvX-or-later license notice. In
this tactic, a strong copy-left license could apply to the software. The
community would draft a special exception to that license which grants all
users except a set of listed entities the right to use the software under a
more permissive license. As an example, consider the following, utterly
non-legally valid special exception:
---
As a special exception to the normal AGPLv3 license, all users except
Amazon and their employees may choose, to redistribute and/or modify this
software under the LGPLv3 license.
---
This special exception makes clear who the community considers a bad actor
and initially imposes greater obligations on them than anyone else. That
said, I strongly believe it is FSD compatible and also believe it is OSD
compatible. All parties receive a set of rights and obligations that comply
with both definitions.

As in the Persona non Grata Preamble, this special exception serves as a
clear statement on the community's view on who is welcome in their
community. Additionally, if the bad actor wants to redistribute, they have
to distribute the license shaming them. Finally, if they redistribute under
the more permissive license (by receiving the the permissively licensed
copy from a third party), it's a grave sign that the bad actor has no
interest in community norms and would open them up to public ridicule. This
might have a similar community reaction as Chef reuploading the add-on
deleted by the user who opposed their collaboration with ICE.

Open questions:
1. Is this FSD and OSD compatible? I tend to feel it is in spirit as every
user receives the software under terms that comply with both definitions.
That said, the wording of annnoted OSD #5 as mentioned on the previous
thread may imply otherwise.
2. Can the special permission be removed under any conditions, including
when redistributed under the more permissive license? If so, can that be
addressed so it can't be removed?
3. Can this be mechanism be expanded on in other dimensions and still be
FOSS? If so how much would it reduce its effectiveness? As an example,
could you list more general sets of bad actors like "defense contractors"
or "oil companies"? I don't see why not but it might be less effective
since there isn't a single or small number of actors to shame.
4. What effect does this have on copyleft as a concept? To date, one use
case of strong copyleft is corporate dual licensing, primarily for
encouraging purchase of a copy under a proprietary license. As someone who
values very strong copyleft, it would be worrisome to see strong copyleft
further viewed as a punishment. On the other hand, I wouldn't encourage
communities to use this when they want their license to be a strong copy
left; if this tactic was vetted and "approved", then, given the moral
urgency of the moment, I'd encourage them to use this when they want their
license to be as permissive as the listed exception but want to express
righteous indignation at those who violate community norms.
5. What is the risk to marginalized people and is it worth that risk?
Similar to the Persona non Grata Preamble, publicizing the idea of listing
bad actors means that its more likely that it could be used to harass or
harm marginalized people. Before using this tactic, it should be well
vetted by a globally diverse set of people from marginalized communities.

-- 
Eric Schultz, Developer and FOSS Advocate
wwahammy.com
eric at wwahammy.com
@wwahammy
Pronouns: He/his/him
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