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

[Richard Fontana]

On Tue, Feb 25, 2020 at 7:13 AM Eric Schultz <eric at wwahammy.com> wrote:

> On Fri, Feb 21, 2020 at 9:20 AM VanL <van.lindberg at gmail.com> wrote:

> > 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 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.

I agree with you to some degree. The GPL does show that political
speech in a preamble is not out of bounds in an open source license.
But I don't believe the example of the GPL establishes that *all*
speech possibly characterizable as political in nature should be
includable in an open source license under the OSD. In particular, I'd
argue that seemingly political speech that conflicts with the spirit
of OSD 5/6 (interpreted in the way that OSD 5/6 have been interpreted
by a lot of people on this mailing list in the context of review of
proposed license provisions) at some point crosses the line. Perhaps
there are some kinds of policy statements that can be tolerated in a
preamble where their implementation as license conditions would not be
tolerable, but to my mind not all imaginable policy statements are
fair game. And therefore the set of things that can be put in an open
source license preamble can't be unlimited.

Richard