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

Rick Moen rick at linuxmafia.com
Sat Feb 29 22:54:38 UTC 2020

Quoting Grahame Grieve (grahame at healthintersections.com.au):

[OSD #6:  No Discrimination against Fields of Endeavor.]

> 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).

Mu.  (Meaning no personal criticism, your question appears to rest on 
an incorrect assumption, hence cannot be technically answered either 
yes nor no.)

I don't think crime is deemed a field of endeavour within the meaning of
OSD's usage, for starters.  Beyond that:

If there have been licences submitted for OSI Certified approval that
specifically denied the grant of legal rights to persons using the code
for unlawful purposes, I cannot recall those at the moment.  It seems to
me that a licensor would achieve nothing by inserting that purported
restriction.  AFAIK, it's not the copyright stakeholder's moral or legal
burden to deal with crime, nor does the stakeholder have any obligation
to try, nor any advantage to so doing.  Heck, the stakeholder cannot be
expected to even predict or know about illegal modes of usage in the
innumerable jurisdictions around the world, let alone be accountable.

Crime is what we have law enforcement for, not what we have software
licensors for.

[OSD #5:  No Discrimination against Persons or Groups.]

> Further, the discussion on #5 specifically calls out ‘the process’ not just
> the software (though the discussion on #6 doesn’t). 

For reference, you're talking about comments at the 'Annotated' version
of OSD, at https://opensource.org/osd-annotated.

> 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.

I see no reason to think that OSD attempts to bar you from implementing
whatever policies you like, about incoming code pull requests.  OSD #5 is
concerned with gratuitous 'locking out' (to borrow the annotated text's
phrase) of particular groups or persons via restrictions written into
the licence terms themselves.

As I've mentioned recently in this space, the fundamental right to fork
that underlies all open source / free software codebases means that 
any obstructive project rules and practices can be, in the words of the
late John Perry Barlow, treated as damage and routed around.  E.g., if 
you or I decree that we are going to enact a prejudicial regime of some
sort concerning further development of the codebase under your/my
supervision, anyone objecting to your/my policy is free to ignore that
policy and act differently concerning that person's own code instance
and develop it differently.

Cheers,                          "Maybe the law ain't perfect, but it's the only
Rick Moen                        one we got, and without it we got nuthin'."
rick at linuxmafia.com              -- U.S. Deputy Marshal Bass Reeves, circa 1875
McQ! (4x80)        

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