Subject: Re: For Approval: Boost Software License - Version 1.0 - August 17th, 2003
From: Rick Moen <rick@linuxmafia.com>
Date: Fri, 12 Oct 2007 14:07:49 -0700

Quoting dlw (danw6144@insightbb.com):

> Accusations of UPL are sometimes bandied about as a "cheap
> shot" intimidation tactic.

Quite so.  Are you sure you're blameless, yourself, in that department?
E.g.:

> I believe the official OSI certification process is skirting
> dangerously close to the definition of UPL.

(I deny your premise that prefacing your claim with "I believe" protects
you, per se.)

You are correct that unauthorised practice of law is construed somewhat
variously among the USA states (well, "unauthorIZED practice of law is",
strictly speaking), but I feel safe in labelling as humbug your
assertion that OSI's certification program even remotely approaches 
any state's statutory (or caselaw) boundaries.

I've actually been preparing to write a few survey articles (for _Linux
Gazette_) about some legal topics relevant to open source, and naturally
the very first thing I intended to do is say "I am not a lawyer, and
these articles are not legal advice suitable for direct application to 
any real-world legal issues.  If you have an actual real-world personal 
or business legal problem needing tailored help, choose to use my
non-tailored writings as your sole guide, and later complain that I lead
you astray, I and the entire _Linux Gazette_ editorial staff will laugh
in the same chilling manner exhibited by Josef Stalin as he enslaved
Eastern Europe.  Don't be an idiot:  Consult competent legal counsel if
you have specific real-world legal dilemmas, rather than just being
curious about the nature of the law in general."

And, of course, the first legal topic I had intended to address was:
unauthorised practice of law -- to explain in part why, and to what
degree, a now-lawyer like me can usefully and lawfully address legal
affairs.  I've just started that, but here are some notes:

---<snip>---

In 1997, the state of Texas "Unauthorized Practice of Law Committee" (a
committee of the state supreme court, fronting for the state legal
profession) sprung on Berkeley, California publisher Nolo Press,
publisher of self-help law books, a mostly secret investigation
allegedly seeking to ban Nolo's books from Texas libraries and
bookstores.[1]  Nolo responded by filing suit (backed by the American
Library Association and others) directly in the Texas Supreme Court,
seeking declaratory judgement that simple self-help books and software
aren't "practice of law" and disclose the nature of its investigations.
Perhaps realising that they had an epic PR nightmare on their hands,
Texas's legislature quickly passed through a new law clarifying that
self-help legal materials are perfectly lawful.  Both the investigation
and the lawsuit were dropped.  A key component of Nolo's books and
software (and a requirement of the new statute) was that the self-help 
materials state that they're no substitute for competent legal help.

In 2001, a somewhat saner Unauthorized Practice of Law Board in Ohio 
clarified the matter a great deal more, in the case of "Office of
Disciplinary Counsel v. Palmer"[2], where one David Palmer had been
operating a Web site giving out no-charge legal information.  The Board
found that Palmer's Web discussion board had broken no laws, because
"one key element of the practice of law is missing in published advice
offered to the general public: the tailoring of that advice to the needs
of a specific person."

That's it, in a nutshell:  General information (and information about
hypothetical cases, or views on the legal affairs of people whom you're
not actually _advising_ on their problems) are fine.  Advising people on
their specific legal problems is not.

The Board expressed grave concern about Palmer's published offer to give
people "guidance and/or advice" on "any legal matter" -- but,
fortunately for him, the Board found no instances where he had actually
_done_ so.  (Note that Palmer didn't get a pass merely for not charging
money:  There are no "Good Samaritan" shield laws, where legal advice is
concerned.)

---<snip>--

There are some broad themes that pervade the subject, despite the state
legislation being "vague in scope and contain broad qualifiers", as the 
DoJ letter you reference says:  Advice tailored to a particular
recipient's needs that is _of types reserved only to lawyers_.  The
latter tends to include, as the DoJ's Model Definition suggests,
advising on the recipient's specific legal rights and responsibilities 
in particular real situations, drafting real legal documents,
representing others in legal or (certain) regulatory proceedings, amd
megotiating legal rights and responsbilities for others.

Neither OSI nor the posters to this mailing list do any of those things,
though your point is well taken that posters should be careful.

In particular, OSI licence certification is _not_ a proceeding of
administrative law; it is just a private certification-mark approval
programme.


> Approving a copyright license by its very definition involves
> exercising legal judgement and discreation.

In short:  Bull.