[License-discuss] "Fairness" vs. mission objectives

Eric S. Raymond esr at thyrsus.com
Mon Feb 24 19:08:42 UTC 2020

McCoy Smith <mccoy at lexpan.law>:
> Is the proposal to "revoke" or simply to "deprecate"?

I would accept "deprecate", with an understanding that deprecation
should be considered fair warning that a license may be decertified
based on further examination and experience.

In fact, I think "deprecation" as a first step helps solve a process
and PR problem for us by providing such warning.  So kudos for
bringing that up.

>                               And, FWIW, it seems that a substantial
> number of the problematic licenses have a very small user base, or indeed,
> are only used by the original submitter.

Which, to me, means we need worry less about the costs of decertifying them.

> There is the other fairness angle here: if an already-approved license has a
> problematic provision that might be violative of the OSD, is it fair to
> reject future license submissions containing the same problematic provision?

I say yes.  A bad decision doesn't become a good one by repetition.

> Several recent submitters have invoked a form of stare decisis based on past
> license approvals, and have argued it is unfair to reject their license for
> reasons that were not applied to past submissions.  That fairness argument,
> IMO, has some merit.

If we are called out on such a clause, I think the proper response is not to double
down on our mistake, it's to deprecate the antecedent license.

> It would seem to me a first step in that process is to clearly articulate
> and get community buy-in as to what the overarching principles and missions
> are here.  The OSD could be that, but it seems to me that many have argued
> there are other principles and missions -- the "unwritten rules" -- that
> underly the OSI's mission.  Having unwritten rules, or rules that favor
> certain submitters over others, seem to be the main cause of the debates
> about fairness and the consistency of the process.

There are two distinguishable cases here.

I absolutely agree that we should have no rules that favor certain submitters
over others.

On the other hand, I don't have any problem with an evolving set of
unwritten rules per se - they almost necessarily arise in a situation
where we are interpreting a set of written rules such as the OSD. But...

...we *do* have duty to write down those rules when we realize what
thet are and how they apply to a particular case.  Such opinions
would relate to the OSD exactly as case law does to statute.

Wherther we want to have stare decisis or not should be regarded
as a tuning knob on the machine.  Common-law countrie have it, yes,
but civil-law countries don't.
		<a href="http://www.catb.org/~esr/">Eric S. Raymond</a>

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