Subject: Re: License Proliferation Dissatisfaction
From: Michael Tiemann <tiemann@redhat.com>
Date: Tue, 24 Apr 2007 14:19:11 -0400

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