[License-review] Submission of OSET Public License for Approval

Wed Sep 2 19:53:50 UTC 2015

Gregory Miller wrote:

> May it please the reviewers, we characterize this as an intellectual 

> disagreement of jurisprudence.  To that end, we should hear from the 

> practicing lawyers on this matter who are most engaged in the nuances.  I

Hi Gregory,

Please explain why government agencies everywhere (federal, state and local) currently acquire and use software under the GPL and MPL licenses (e.g., Linux, Firefox, OpenMRS) without any concerns about jurisprudence. 

Acquisition rules don't restrict open source for anyone who actually wants this software for free. There is nothing unique in this respect for election software. There is no "technical legal barrier to adoption of open source in this specialized government sector" despite their "archaic regulatory schemas."

I read your Rationale document. You are solving licensing problems that don't actually exist. GPLv3 and MPLv2 are already fine licenses and well-understood around the world. And there is certainly nothing distinguishing your 501(c)(3) – which I definitely respect – from other nonprofits working in this technology space that justifies a special license.

Regards,

/Larry

Lawrence Rosen

Rosenlaw & Einschlag ( <http://www.rosenlaw.com/> www.rosenlaw.com) 

3001 King Ranch Rd., Ukiah, CA 95482

Cell: 707-478-8932 

LinkedIn:  <http://lnkd.in/D9CWhD> http://lnkd.in/D9CWhD 

From: Gregory Miller [mailto:gmiller at osetfoundation.org] 
Sent: Wednesday, September 2, 2015 10:59 AM
To: Richard Fontana <fontana at sharpeleven.org>
Cc: legal at osetfoundation.org; John Sebes <jsebes at osetfoundation.org>; License submissions for OSI review <license-review at opensource.org>; christine at osetfoundation.org
Subject: Re: [License-review] Submission of OSET Public License for Approval

Hello Richard-

May it please the reviewers, we characterize this as an intellectual disagreement of jurisprudence.  To that end, we should hear from the practicing lawyers on this matter who are most engaged in the nuances.  I am a non-practicing lawyer with training and experience in technology IP and licensing, but I leave my more academic legal view out of it.  Similarly, our General Counsel is very good at all things corporate; excluding IP and licensing,  However, we are blessed with Heather Meeker and her team who ARE the licensing experts.  

So, I will let her lead on this point, but offer some context below from the front lines of this to facilitate discussion.

I wish to note that (based on your remark) for what its worth, our General Counsel informs us that CAVO is a 501(c)(4) or a 501(c)(6) (I apologize for not having the exact IRS determination handy) and the OSET Foundation is a 501(C)(3).  The difference is we are a public charity, and in particular charged with lessening a burden on government while providing a demonstrative public benefit.  So, our focus on licensing is NOT as much about development, as it is on distribution. 

501c4 or c6s are trade associations and activist organizations with a very valuable role in the advancement of public policy. Their tax exempt role per IRS rules is to advocate; ours is by law, prohibited from such (save a few nuances).  We are unclear why they have chosen to advocate so vigorously on an issue of licensing, however, as noted at the outset, this is an intellectual dispute of jurisprudence; engaging, but with some very practical implications for us.

I hope you will appreciate that we would rather spend precious dollars pursuing the build-out of our open source technology rather than on legal research, advice, counsel, and services for licensing and other IP matters.  However, we've been in the trenches, so to speak, in various counties around the nation, and have dealt hand-to-hand with procurement agents, contracts administrators, and  buyers of technology.  

The fascinating aspect of this, and a great opportunity for the Foundation (and your organization too) is EDUCATION.  There are over 3,140 counties in the U.S. and over 10,079 election jurisdictions.  And the vast majority of them have very little technology understanding and even less about the concept of "open source."  

Given that the OSET Foundation has DNA from Mozilla and several of us hail from Netscape, we do understand open source, and at a deep level -- technically, legally, and commercially.  Similarly, given the deep lineage and history OSI has going back to Eric Raymond, your organization too has equally deep expertise.  We will have a big on-going job of education of this sector of local government (which is very different from the federal level or even state levels in many parts of the country). Therefore, we look forward to a strong relationship with the OSI to help us in this effort.  However....

For the moment, I can only assure you that our development of this license was purely driven by the necessity to ensure these local jurisdictions can accept open source legally by virtue of their -- in some ways -- archaic regulatory schemas.  We made a conscious decision to remove a barrier to adoption by creating a license that has a very focused purpose, rather than reform ourselves into a c4 or c6 organization and attempt to mount an enormous campaign to reform local procurement regulations across the nation, which would cost millions and likely bear little fruit in a timely fashion.

However, in terms of facilitating development efforts and some distribution settings, Heather cleverly crafted a licensing instrument that directly addresses these issues for those who by regulatory fiat are compelled by them, and for those who are not, they need not utilize our license, but rather can use the GPL.  Heather should explain this.  

Which returns me to the main thing here: this is an intellectual disagreement of jurisprudence, and nothing else.  And I believe if we can bring the licensing legal experts together through an intellectually honest discussion, the result will be clarity of our intents and purposes, demonstrating solid legal grounds on which we work; not because we want to, but because it is the most practical and necessary step to ensure we remove a technical legal barrier to adoption of open source in this specialized government sector.

Respectfully I am,

Gregory Miller

On Wed, Sep 2, 2015 at 9:45 AM, Richard Fontana <fontana at sharpeleven.org <mailto:fontana at sharpeleven.org> > wrote:

Hi, a few notes related to this license submission:

OSET Foundation and California Association of Voting Officials (CAVO)
are both nonprofits in the open source elections technology
space. CAVO is an OSI Affiliate. An OSI board member (Deb Bryant) is
on the advisory board of OSET Foundation.

I am not familiar with the relationship between CAVO and OSET
Foundation but there has been some dispute between these organizations
over whether an existing standard open source license is suitable for
use in developing elections technology. CAVO has in particular
recommended the use of GPLv3; see Larry Rosen's posting to
license-discuss last year
https://lists.opensource.org/pipermail/license-discuss/2014-November/001580.html

Richard

Gregory Miller
Co-Executive Director & Chief Development Officer
OSET Foundation | TrustTheVote Project
 <http://www.osetfoundation.org/> www.OSETFoundation.org |  <http://www.trustthevote.org/> www.trustthevote.org
Twitter: @TrustTheVote | @OSET

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