[License-review] License drafting quality and process [was Re: Comment on MOSL and similar licenses]

[Richard Fontana]

On Sun, Apr 07, 2013 at 06:01:09PM -0700, Luis Villa wrote:
> On Tue, Apr 2, 2013 at 12:35 PM, Lawrence Rosen <lrosen at rosenlaw.com> wrote:
> > Hadrian G. wrote:
> >> Thus, what I'm doing instead is to take as much inspiration as possible
> > from existing OSI-approved licenses, which I assume should be bullet-proof,
> > and then take advantage of the fact that as part of the OSI review process,
> > my proposal will also be subjected to the scrutinity of several specialists
> > of open-source legal matters who have chosen to dedicate some of their free
> > time to the improvement of the open-source ecosystem.
> >
> >
> > I'm sorry, Hadrian, both assumptions are demonstrably false. /Larry
> 
> I have to agree with Larry here

As do I.

> - it really isn't a good idea at this
> point to draft a license without real legal consultation; cut and
> paste isn't sufficient. Unfortunately, as currently drafted, the OSD
> has no formal requirement for such a consultation.

I imagine Larry would agree with this, but I don't entirely
agree. Certainly 'cut and paste isn't sufficient', but access to good
legal advice will be unrealistic to many developers, and yet they seem
to me to have as much a right to draft new purportedly open source
licenses as those developers, or organizations, that do have the
resources to get what is assumed to be good-quality legal
consultation. And they have as much a right to have their new licenses
taken seriously (at least at the outset) as those institutions that
have the resources to hire or otherwise retain legal experts (or to
set up processes likely to encourage helpful lawyer feedback). One
might say they nonetheless have no particular right to have their
licenses given equal review by the OSI, which is true, but this then
means that the OSI will be rewarding the represented and punishing the
unrepresented (which is going to approximate "rich and poor"
respectively).

Not all lawyers give good advice anyway -- hope I'm not revealing
another guild secret here. :-)
 
> Doing a full legal review of all incoming licenses is impractical for
> OSI (for a variety of reasons) 

Unquestionably.

> but I'd be interested in hearing
> suggestions on what other things might stand in as a proxy for such a
> review.
> 
> For example, in the past others have suggested that a public community
> process involving lawyers, such as those conducted for
> GPL3/MPL2/CC[2-4]/copyleft-next, would be a useful proxy and something
> that OSI could more objectively measure than "quality".

I suppose it will necessarily be something the OSI will take into
account (perhaps in some cases in the form of a mistaken
guess). That's unavoidable. I would hope that it is not seen as
necessary to formalize it.

(Interesting that you mention copyleft-next, given that it is designed
explicitly to discourage lawyers from participating, though of course
some lawyers have been involved. :)

- RF