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

[Luis Villa]

On Sun, Apr 7, 2013 at 7:25 PM, Richard Fontana <fontana at sharpeleven.org>wrote:

> On Sun, Apr 07, 2013 at 06:01:09PM -0700, Luis Villa wrote:
> > - 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).
>

I sympathize a great deal with this concern; this sort of requirement could
easily strongly dampen real innovation in the license space, and I would
love alternatives that are better in this respect.

If I were going to quibble with this point, I'm not sure that any
individual - lawyer or developer - has much right to have their license
taken seriously. At this point, I'm inclined to think that only communities
of people who have identified a specific problem, and drafted a license
expressly to attack that problem, have much right to have their license
taken seriously. But I am not deeply attached to that perspective and could
probably be persuaded otherwise.


> Not all lawyers give good advice anyway -- hope I'm not revealing
> another guild secret here. :-)
>

Of course :)


> > 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. :)
>

I specifically mentioned copyleft-next for exactly that reason- the other
processes listed were somewhere between "lawyer-led" and
"lawyer-dominated", and I wanted to be clear that processes that were
less-lawyer-friendly were within scope. But as copyleft-next has also
demonstrated, a transparent, community-driven process that identifies real
problems and seeks to remedy them will probably attract lawyers to help out
(for better and for worse).

Thanks-
Luis


> - RF
>
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