[License-review] For Approval: Convertible Free Software License, Version 1.1 (C-FSL v1.1)

[Bruce Perens]

On Wed, Sep 26, 2018 at 9:07 AM Smith, McCoy <mccoy.smith at intel.com> wrote:

>
> I think it would be very useful for the OSI to make this policy more
> explicit, perhaps by announcing it on the license submission page.
>
I don't really have a problem with OSI stating that approved licenses are
not precedential. But McCoy, none of these submitted licenses are doing
*exactly* what the others are, so in general the arguments about precedent
are a stretch.

Also, OSI has accepted some crayon licenses during its history for
ill-advised political more than legal reasons. So, we very definitely don't
want to give some of those garbage licenses the power of precedent.

>
> I tend to be of a more radical persuasion that there are some provisions
> of the OSD that can be a bit ambiguous in the way that they are currently
> drafted,
>
No lawyer would help me (or the Debian project for which this was drafted)
at the time, and it's held up very well considering that. It is not the
language I would write today, but it achieves the same purpose I would
still have today.


> I believe there should be room for some clarification on the OSD wording
> (possibly even some revision of the OSD – “OSD 2.0,” perhaps?, or at least
> some more explicit interpretive history presented on the OSD, and license
> submission, webpages, so that current readers of the OSD, and future
> license drafters attempting to conform to the OSD, have better guidance.
>
Unfortunately, I think you would find that latitude among the approvers
would still be necessary to prevent gaming of the OSD to introduce
unfortunate elements into the ecology of Open Source. The vast body of
professionally-written law in the United States, including the Constitution
itself, does not work stand-alone in courts. It is dependent upon a much
larger body of case law, expert testimony, and scholarship. So, the fact
that license approval rests upon interpretation of the OSD doesn't make it
particularly different from civil and criminal law.

But I have a simpler solution for you. Draw up your own rules and call it
anything but "Open Source" (well, the Free Software folks don't want you
calling it that either). Nobody is stopping you. Let the better process win.

> If I had the time, and the inclination, I might be motivated to write a
> paper on this topic – taking the OSD, pulling apart the currently-presented
> language around it and analyzing how it has been interpreted over various
> years of license analysis (pre-, and perhaps post-, submission).  That’d
> take a lot of work (and would require some access to 20 years of submission
> history).  I’m wondering if anyone is interested in taking up such a task?
> I know a law journal that would likely be interested in publishing
> something like that.
>
We don't have access to board deliberation, internal correspondence, and
even unbroken access to the record of this mailing list. There are a number
of people who could be interviewed, some of us are getting long in the
tooth.

Certainly I participated in this process only as an outsider (not a board
member) for most of my history with it, and even in my case there is a
decade-long break in participation. During much of that period I was
persona non grata with the board or at least its president, and their
thoughts on licensing were not available to me.

    Thanks

    Bruce

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-- 
Bruce Perens K6BP - CEO, Legal Engineering
Standards committee chair, license review committee member, co-founder,
Open Source Initiative
President, Open Research Institute; Board Member, Fashion Freedom
Initiative.
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