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

Grahame Grieve grahame at healthintersections.com.au
Sat Feb 29 10:12:55 UTC 2020

This discussion is important to me, and for some open source communities in
health. Many contributors to open source health care communities are
strongly driven by healthcare ethics, not open source ethics, and that
gives rather different feelings about this. So I’m finding the discussion
useful, and I hope that discussion on this question itself isn’t ruled off
topic per se.

I just read #5 and #6, and they give me a question:

> No Discrimination Against Fields of Endeavor

> The license must not restrict anyone from making use of the program in a
specific field of endeavor. For example, it may not restrict the program
from being used in a business, or from being used for genetic research.
This precludes discrimination against illegal activities, either in the
source or user jurisdiction, right? Has this ever been tested in court?
(E.g. an open source library that was a key contributor to empowering an
illegal activity is targeted for allowing that use in it’s license).

Further, the discussion on #5 specifically calls out ‘the process’ not just
the software (though the discussion on #6 doesn’t). I’m not sure how to
understand that. Say I got a PR that specifically made it possible to break
the law using the source code. (I haven’t had such a PR, but there are
places in my source where this could be done since my source is enforcing
the law in places). Is the intent of the OSD that such a PR should be
accepted since there should be no prejudicial treatment? I suspect not, but
I feel as though some better explanation would be helpful.


On Sat, Feb 29, 2020 at 7:28 PM Russell Nelson <nelson at crynwr.com> wrote:

> There are, as one might expect, multiple aspects of this idea.
> Is it legally enforceable? Not even lawyers can answer that question
> because it depends (as Larry Rosen once said) on which side of the bed
> the judge has gotten up on. Probably a better question is whether you
> intend the new terms to be legally enforceable? Eric makes it clear that
> enforceability is immaterial since he does not intend it to restrict
> licensees.
> Well, given that, the entire thing is moot. We deal in licenses which
> give permission to licensees to further sub-license the software. We
> don't have licenses which do not permit would-be licensees to retrieve
> or accept ownership of a copy of the software. We don't have licenses
> which restrict -- in any way -- their use of the software. All of this
> has been hashed out literally decades ago.
> If Eric wants somebody to refrain from using his software, he is free to
> ask them to refrain. He doesn't need any change in the Open Source
> licensing regimen. If, however, he ships his software under a modified
> license, even if that license merely importunes people to not use it, he
> has removed himself from the Open Source community.
> Given that such a discriminatory importunation (that probably wasn't a
> word until just now) facially violates OSD#5 (or #6, depending), I'm not
> sure that we should welcome discussion of such a thing on opensource.org
> mailing lists. It is simply off-topic. Not good, not bad, just
> off-topic. People might think that we don't hold ALL the terms of the
> OSD in equal stead. Another thing the valuable and useful Larry Rosen
> (former OSI lawyer) said is that if you want a judge to believe you, you
> have to believe yourself. If you don't take yourself seriously, why
> should the judge?
> On 2/20/20 9:16 PM, eric at wwahammy.com (Eric Schultz) wrote:
> > Over the last few weeks, I've been exploring ideas around ways in which
> > licensing could be used for dealing with unethical behavior in FOSS.
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http://www.healthintersections.com.au / grahame at healthintersections.com.au
/ +61 411 867 065
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