Subject: RE: License Proliferation Dissatisfaction
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Sat, 28 Apr 2007 08:38:23 -0700

Hi Michael,

Thank you for your email and thank you for acknowledging that I offered OSI
my feedback long ago when your license proliferation committee report was
first published. You say you weighed it against "the fundamental reason" why
OSI chose to address the problem of license proliferation, yet I've never
heard any other board responses before to demonstrate that a meaningful
weighing process actually took place. Yours is the first statement by anyone
that attempts to describe the thought processes of the OSI board when it
voted (presumably) on this complicated topic. 

I share with you your disappointment that there was not more public
discussion before you revised your website.

What you wrote in your email ought to be published prominently on the OSI
website so that everyone who comes there for information about free and open
source licenses can understand the scope and value of what you offer. I do
not quarrel with OSI's right to categorize licenses however you wish. But
you owe it to your readers to explain that your analysis of popularity was
intuitive rather than scientific; that your methodology results in the
prominence of antiquated licenses which, like antiquated software programs,
continue to plague the world of computing; that your list of licenses
classifies some as "redundant" even though they contain potentially useful
and quite unique legal provisions; and that OSI is neither qualified nor
available to provide legal advice on the very topics for which it was
chartered to educate the public.

Of course, that opens the door to other organizations that can give
meaningful information and who will analyze licenses for what they do rather
than for their prominence as determined in a secret popularity vote.
Unfortunately, many of the people who need correct license information the
most--the community of developers who have come to trust the OSI license
list--will continue to believe what you now offer on your website, thus
setting back the progress of open source licensing.

/Larry


> -----Original Message-----
> From: Michael Tiemann [mailto:tiemann@redhat.com]
> Sent: Tuesday, April 24, 2007 11:19 AM
> To: Forrest J. Cavalier III
> Cc: license-discuss@opensource.org; license-proliferation-
> discuss@opensource.org; osi@opensource.org
> Subject: Re: License Proliferation Dissatisfaction
> 
> Forrest J. Cavalier III wrote:
> > Russ Nelson wrote:
> >
> >> Forrest J. Cavalier III writes:
> >>  > In this reply I hear "La, La, La, I'm not listening."
> >>  >  > What concrete method was used by the committee to determine
> >> popularity?
> >>
> >> No, what you're heading is "I don't care if you don't like it.  I
> >> expected you to not like it."  And I by "you" I don't mean that we set
> >> out to screw Larry Rosen.  I mean that *any* procedure, *any* number
> >> of groups, *any* categorization was guaranteed to produce
> >> dissatisfaction.  I feel sorry for Larry, but I'm not going to defend
> >> the decision.  It's reasonable.  It may not be perfect.  It's better
> >> than what we had before.  The best is the enemy of the good.  Deal
> >> with improvement and changes like a grown-up (not that many grown-ups
> >> deal with change well -- but we're *supposed* to).
> >>
> >
> > In the 21st century, quality is recognized by examining the process,
> > not the result.
> Actually, it's both.  The Innocence Project
> (http://www.innocenceproject.org/) is an example of an organization
> dedicated to getting a quality result from a supposedly fair process.
> There are others.
> > You say Larry didn't like the result. You keep pointing to the result
> and
> > saying it is "good and reasonable."  But...
> Actually, what we're saying is "having published this report in draft
> form several months ago, having offered numerous parties numerous
> opportunities to have a public conversation so that we can gain from the
> benefits of the collective intelligence of the open source community, we
> decided that the time had come (based on the process we had run and the
> comments we had received) to move the report from draft to published
> status.  Somehow that has ignited far more commentary than any of our
> requests for commentary.  Russ can blame himself for not getting more of
> this commentary to appear on public mailing lists while the committee
> was active, but the participants in the process chose to not use that
> mechanism.  And for whatever reason the wider community also chose to
> not use that mechanism when the draft report was published.  Maybe we
> should have said "well, we cannot have a proper process without more
> community commentary" but that leaves out the notion of tacit approval
> and forces us to remain unsure about things that everybody else is sure
> about.
> 
> Yes, we did receive private negative comments from Larry after the draft
> was published and before it was finalized.  We weighed his comments
> against the fundamental reason why we chose to address the problem of
> license proliferation.  A pure free-market approach would have left this
> whole matter alone and "let the market decide".   We had been taking
> such an approach, and we began to see license proliferation as a "moment
> of satisfaction and a lifetime of regret" kind of problem.  At one point
> it was proposed that we really should try to winnow the field to 3-4
> licenses, tops--reciprocal, liberal, and one or two others.  We did not
> take such a drastic approach after looking in more detail at the wide
> range of licenses and communities using those licenses.
> 
> Another point I would like to reinforce is that the OSI has long been
> clear that WE DO NOT PROVIDE LEGAL ADVICE.  We can provide all kinds of
> other advice, advocacy, opinions, and occasionally humor, but we cannot
> tell somebody "this is the legal approach you should take".  Only a
> lawyer working for you can provide such advice.  For this reason, we
> specifically decided to keep legal considerations at arms length.  Of
> course we do judge licenses through a legal lens, and we do our best to
> reject licenses that (1) have obvious legal problems, and (2) do not
> have such an overwhelming community of use that the community itself
> becomes a legal force.  We also provide personal commentary, which is
> distinct from legal advice, about specific legal questions people
> raise.  But in terms of the license proliferation problem, the problem
> we tried to address was how to encourage the strongest and most positive
> network effect that comes through collaborative contribution, and we did
> not see legal quality as the #1 barrier to progress.  Others may
> disagree with that assessment.  We saw community size as a large
> determinant of the power and viability of a given project, and we saw
> license compatibility (which, except for the famous example of the TeX
> license, is trivial when two licenses are the same license) as a
> potential exponent to community size.  Thus, we chose to focus on
> popularity as the best strategy for increasing the power of the network
> effect as applied to open source.
> 
> > I asked about the process.    What concrete method was used by the
> > committee
> > to determine popularity?
> I, too, was not on the committee, so cannot speak to that.  But I do
> want to reinforce what both Russ and Larry have been saying, which is
> that for some people, popularity is not the driver of *their* decision.
> They want a license that solves a particular legal problem, and for
> them, I would advise that they follow their attorney's advice, not the
> advice of the OSI, which has more to do with policy, economics,
> advocacy, and the like.  Just because the LPC did not make legal quality
> considerations an equal consideration to community popularity does not
> mean it is not an important factor.  It's just a factor on which (1) the
> OSI does not have much standing, and (2) how can the OSI make a general
> claim about the law, which in the US is based so much on particulars?  I
> do believe that if the ASP provision of the OSL is such an important
> solution that we will see it become a popular and highly visible
> license, and I would hope that when that happens, we look at what
> license or two we should shift to a different category to make room.  In
> the mean time, we have a document which hopefully normalizes behavior to
> get people to focus also on doing work that can join with, rather than
> fragment the community.  That, ultimately, is our goal.
> 
> M