[License-review] veto against Unlicense

[Pamela Chestek]

On 5/16/20 6:30 PM, Langley, Stuart wrote:
> In my opinion its uncertain whether a court would treat it as a license.  Reasonable minds disagree.  It's more likely that a court would look at the intent of the dedicator, but because the Unlicense is written rather poorly there remains a non-remote chance it would be treated as just a failed transfer and leave the dedicator, but more likely their heirs, with a right to sue in some jurisdictions.  I could argue either side, but from a practical standpoint, that non-remote chance is enough that I do not advise clients to distribute software under the Unlicense.
These risks also exist for other open source licenses and this doesn't 
look quantitatively different, or so high that we can't say that the 
document does a reasonably good job of ensuring software freedom. Under 
other licenses there have been licensees who have tried to withdraw 
their grant, most recently when Linux added a code of conduct. There 
could be heirs that want the code used in some different way, but we 
already have that risk in the US because of termination rights. Here we 
have a very clear statement from the copyright owner that they have no 
intention of exercising copyright rights in the work. One could have an 
unfaithful grantor who later changes their mind, or heirs who think they 
see a pot of gold, but this clear statement would be a pretty high 
hurdle to get over. Assuming this would be treated as an abandonment 
under US law, the events you describe are less likely to occur than in 
the case of a license because the legal effect of the abandonment is 
that there is no copyright.
> If a license does not give me certainty that I won't have to go to court to defend myself, it's not a worthwhile license.

Our task here isn't to decide whether it's a good license, only whether 
it's an open source license. There are a number of approved licenses 
that have a great deal of ambiguity, including some widely used ones. 
This one appears to me to be within an acceptable range of ambiguity. (I 
also give more latitude to licenses in widespread use than new ones.) It 
isn't pretty, but I think it works.

This does bring up a question. The submission asked for placement in the 
"Licenses that are popular and widely used or with strong communities" 
category. I don't think that category is correct given that a dedication 
to the public domain, not licensing, is the primary goal. There aren't 
any other appropriate categories that I see, so I would then default to 
"uncategorized."

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pamela at chesteklegal.com
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