Subject: Re: OSD#5 needs a patch?
From: "Rod Dixon, J.D., LL.M." <rdixon@cyberspaces.org>
Date: Wed, 8 Oct 2003 23:25:11 -0400



************

6. Open source licenses may not discriminate against persons or groups,
fields of endeavor or types and brands of technology.

Proponents of open source software insist that software not be a
battleground on which political or philosophical or business wars are waged.
In many jurisdictions around the world, discrimination on the basis of race,
age, religion, national origin, sex, sexual orientation, health status, and
other personal characteristics is always illegal.  This open source
principle is intended to extend that broad list, not to replace it.  To be
consistent with this open source principle, all terms and conditions of the
license must demonstrably encourage rather than discourage software freedom
for all licensees.
_____________________


 The sentence:
"This open source principle is intended to extend that broad list, not to
replace it."
raises exactly the issue it seems aimed at resolving; namely, whether the
OSD should be a vehicle for "expanding" anti-discrimination law protections
as an affirmative standard for approval of "open source" licensing. My
thoughts on this are twofold: [1] that OSD 5 or the proposed OSD 6 should be
explicitly limited to matters that generally are NOT already covered by
laws; in other words, the OSD should restrict the term "discrimination" to
apply to matters that are important to the goals of the open source
community (see below), and [2]  when it comes to matters of invidious
discrimination the legal instrument (the license) as well as how the license
is used might be pertinent to any meaningful enforcement of compliance with
OSD 6. In this regard, it might be more effective to have license submitters
"attest" to compliance with a notice statement rather than put OSI in the
position of withholding approval on the basis of a textual conclusion about
invidious discrimination.

Regarding my first thought, if we accept the argument that the OSD should
*generally* reflect the values of "freedom of contract," and only set
guidelines directly relevant to open source licensing, then the OSD's
anti-discrimination clause should be restricted to very specific inherently
connected matters rather than broadly read to encompass the broad list in
OSD 6. What might that be? Well, for example, regarding the issue of
encouraging governments to use open source software, OSD 5 or the proposed
OSD 6 could clarify that licenses that contain terms which discriminate
against (by prohibiting use of) free software governed by the GPL in
E-government would not be in compliance with the OSD. Other examples might
be licenses that discriminated against Linux users or the use of software
for biometric research, unless expressly prohibited by law.

My thoughts on this follow my belief that as a practical matter, the
opprobrium that would attach to any license circulating in the open source
community that discriminates on the basis of the factors listed in the
proposed OSD 6 is likely to achieve the goal of OSD 6 without putting OSI in
the position of actually having to affirmatively police a potentially
cumbersome and difficult process.

-Rod

Rod Dixon, J.D., LL.M.
http://www.cyberspaces.org






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