[License-review] Request for approval of the resubmitted new "MGB 1.0" license

[Pamela Chestek]

On 2/24/2025 10:15 AM, Carlo Piana wrote:
>
>     Given that I believe the intent and actual effect of the language
>     of AFL & OSL -- as well as the actual effect of the language in
>     MGB 1.0 under current law -- would be to encompass equivalents,
>     this submission raises an interesting question on license text vs
>     license intent and approval of licenses. The patent grant of AFL &
>     OSL has already been approved, and MGB 1.0 attempts to use that
>     same language in its own grant.* Specifically, can the parol
>     evidence of the intent of the licensor in drafting language in a
>     license be considered in both the decision to approve or
>     disapprove of a license, or for that matter in interpreting the
>     license itself later when it is used? I tend to think if a license
>     submitter submits a license with language that under prevailing
>     law does not violate the OSB (and which has been approved in the
>     past as complying with the OSB), but the licensor in submitting
>     the license says they intend for the license text to violate the
>     OSD, the intent should play into approval even if the text itself
>     doesn't effectuate the intent. Which in this case, as I've said
>     before, the intent to carve out DoE from the license in my opinion
>     violates OSD and makes this license non-approvable, even if the
>     language which purportedly accomplishes that intent has previously
>     been approved.
>
>
> This is a recurrent item of discussion. I submit that in a standard 
> license, the intent of the drafter bears little to no weight in the 
> interpretation of a legal instrument that is offered for the use of 
> the many. It has little bearing also in a situation where it is being 
> used only by the drafter. In any cases, being a matter of 
> interpretation, which is heavily impacted by the relevant rules of the 
> applicable law, it would be disingenuous by anyone to attempt any such 
> interpretation, especially in the absence of an interested 
> counterpart. Therefore, we, and the Licensing committee first and 
> foremost, should interpret the license for what it says and according 
> to the general understanding of similar wording, if there is a 
> customary use of it in the trade. But the intent, both pro o against 
> the OSD, should in principle not be considered, unless -- and this is 
> a notable exception -- if it is expressly stated that one sought goal 
> is against the OSD.  Which includes carving out any rights which, 
> under any legal theory or instrument, is required to fully exploit the 
> grant and do Open Source. I long time ago have been guilty of 
> attempting to do so, and I have long since repented of my nefarious deeds.
>
> Despite we concentrate on legal text (maybe with an hammer-nail 
> attitude), the main purpose of clearing a license is to certify that 
> the text under scrutiny is a legal instrument that enables the 
> obstacles coming from of "all rights reserved" default as well as from 
> other potential obstacles coming from other instruments; so that the 
> recipient is allowed to use of the freedoms that  need to be granted. 
> The scope of the licensing approval, in other words, is IMHO that of 
> making sure that the software **is** Open Source, not that the license 
> is compliant (the OSD is a means to an end). The software is Open 
> Source if the distribution artifact grants everything that legally is 
> required and if it provides everything that technically is necessary 
> to use, study and modify, make copies and distribute original or 
> derivatives. Anything that does limit or purports to limit the Open 
> Source-ness of the software (as opposed to imposing conditions to 
> foster it) is aiming short of Open Source and should be rejected 
> because it falls short the most important test.
>
I think we agree? I'm less inclined than you to trust the language of 
the instrument because language is so imperfect. But you make allowances 
for the case where the intended goal is against the OSD, which seems to 
be this case. I am wary of giving a license our blessing where the 
license steward believes they have not granted all rights necessary 
(even when their interpretation doesn't seem to comport with existing 
law). I think we have a duty to protect the users who will not have seen 
this discussion and therefore learned that the licensor thinks that some 
of its patent rights have not been licensed -- if they knew, they surely 
would not use the software. I think the reasoning is even more 
compelling here where the license is meant to be essentially the same as 
the Apache license, that it it's a redundant license, but for the change 
to the patent language.

Pam

Pamela S. Chestek (in my personal capacity)
Chestek Legal
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pamela at chesteklegal
www.chesteklegal.com
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