[License-review] License Review Submission: Irrevocable MIT License (MIT-I)

[Pamela Chestek]

On 8/15/2025 10:54 AM, Josh Berkus wrote:
> On 8/15/25 09:18, Pamela Chestek wrote:
>>
>> I am also troubled by "The Software may not be removed from public 
>> repositories solely for the purpose of limiting access to versions 
>> previously distributed under this license." I don't think it's a good 
>> idea to start - what if it's taken down for security reasons? And 
>> you're forcing someone to spend the resources to maintain a copy of 
>> software in perpetuity, even if it's well past its useful life. I 
>> don't think someone should be required to maintain a copy of the 
>> software.
>
> This was the part where I was asking "can a license even compel this?"
>
> <snip>
>
> But, saying that the distributor must commit to distributing the 
> software in perpetuity?  That seems like it goes well beyond 
> copyright. Aside from being unrealistic.

In the general case, one can use copyright as a trigger for a 
non-copyright obligation, and there's not really any limit on what 
action you can oblige someone to perform. I can write a contract that 
says "you can make a copy of my gardening book after you water my garden 
on Tuesday." Open source licenses say "you can distribute copies as long 
as you provide a copy of the license." Providing a license is not 
required by copyright law but it uses a copyright trigger, the exercise 
of the author's exclusive right of distribution. When that doesn't 
happen there is then a follow-on question about whether that failure to 
perform leads to a breach of contract claim, a copyright infringement 
claim, or both, but I won't go there (it's complicated).

So there's nothing wrong legally with requiring it, the question is 
whether a license with this characteristic can still be called an open 
source license. In my opinion"no," although I don't see anything in the 
OSD or the OSI's other guidance to pin it to. My reasoning is that it's 
quite burdensome to the project owner and also unnecessary to achieve 
the goal of making sure that the software is always available. Other 
people can host copies of the software, it doesn't have to be the 
original creator of the software. On balance, I think this kind of 
obligation is bad for the ecosystem because it will discourage people 
from making their work available to others when there is such a 
significant burden to do so. I also think the reality is that no 
sensible person would use this license because of this requirement, so 
it's a license without an audience.

Requirements like this are why it just impossible for the OSI to 
describe everything that makes a license unacceptable, because there's 
no limit to the human imagination. Instead it is, I think rightly, 
within the OSI's discretion to make the judgment call based on a 
holistic view of whether the license advances or inhibits the adoption 
and use of open source software.

Pam

Pamela S. Chestek
Chestek Legal
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