Debian rejects APSL?

Lex Spoon lex at cc.gatech.edu
Sat Jun 11 17:57:34 UTC 2005


I may have been mistaken that Debian accepts APSL-licensed software. 
Here's a thread from the summer of last year, and I don't see anything
newer on the Debian mailing lists:

	http://lists.debian.org/debian-legal/2004/06/msg00545.html

A show-stopper in this license, by Debian standards, is that the license
includes a choice-of-venue clause.  It seems to me--and I argued this
with them at the time--that choice of venue is actually helpful in
international agreements.  Yes, such clauses have the downside that you
may have to travel to defend a case.  However, this risk is there anyway
in any international dispute! And the advantage of a choice-of-venue
clause  is that you not only know which legal system applies to the
text, but what court system is going to interpret that legal system. 
Nevertheless, the debian-legal working agreement is that choice-of-venue
is not only a bad thing, but is so bad to make a license non-free. 
Since the latest APSL has a choice-of-venue clause, it thus does not
meet Debian's requirements.

Another show-stopper by Debian standards is for a license to be contract-
like (whatever that means).  Aside from being rather theoretical for
non-law-professors to be delving into, this subtopic is specific
to the US legal system and other ones like it.  After all, many other
countries explicitly treat licenses and contracts the same (which is the
basis for some countries possibly rejecting GPL as valid at all).  Here's
a typical response on the thread:

	"It may not be possible to have free software in such jurisdictions."
	http://lists.debian.org/debian-legal/2004/06/msg00617.html

"such jurisdictions" is all civil-law jurisisdictions, and in this particular
thread Brazil was being discussed.  While this thread includes statements
both for and against the idea that contractual licenses are non-free,
note that the current president of Debian is firmly in agreement after
the above thread:

	"The exclusive rights granted to authors and their transferees
	under copyright law attach regardless of the "acceptance" of those
	terms by third parties.  [...] A license is a license, not a contract."

	http://lists.debian.org/debian-legal/2004/08/msg00160.html


On a lighter note, here's another example of what Debian doesn't allow:

	"'Send me a postcard if you like this software.'
	This makes the license non-free."
	http://people.debian.org/~bap/dfsg-faq.html

At this point, Debian has rejected APSL, Mozilla-L, and
GFDL (GNU's documentation license), and creative commons --
a wide swath of licenses that seem well in the open-source spirit
of letting people get the source code, modify it, and redistribute
it, all for free.  Their pendulum has swung away from supporting
their users towards open-source advocacy.

	"MPL is not DFSG Free"
	http://lists.debian.org/debian-legal/2004/06/msg00221.html

	"Debian Draft Position Statement about the [GFDL]"
	http://people.debian.org/~srivasta/Position_Statement.xhtml

I don't disagree with Debian's analysis in these cases -- it sounds logical if
you read them.  The problem is that Debian has drawn an arbitrary line
in the sand that is roughly in the correct place, but most of the world
just doesn't care about Debian's line.  The general populous continues
to release software under perfectly free licenses that happen to violate one
of Debian's arbitrary requirements.

Further, while OSI has not had open discussion that I can see on Squeak-L,
they have the same general approach as Debian (in fact, OSI's criteria
and DFSG's criteria have an intertwined history).  They make an arbitrary
(and growing) list of requirements, and then reject any license that violates
any of those requirements however slightly.

I'm throwing in the towel in on both Debian's legal analysis and OSI's.
I appreciate the spirit of what they are trying to do, but if they want to
play in a legal arena, then they need to get some serious law theorists
on board, and they need to take a more practical view of the
issues.  Debian is trying to make change happen by rejecting people
from their distribution.  That works on individual authors who just don't
care what flavor of license they use, but it doesn't work well on major
organizations that have hired a team of trained lawyers and are not
in a hurry to defer their lawyers to what Debian's amateurs recommend.

Times have changed.  Open source is no longer a matter for freaky
wide-eyed heretics or for hackers doing work for free that they don't
want to bother trying to sell.  Open source no longer needs the promotion
that is the  strong suit of OSI, FSF, and Debian.  Open source is now
a serious legal phenomenen, and accordingly we need to start bringing
in the pros.  The important issues now are things like *effective*
open source licenses and adjusting the legal systems themselves to have
a place for open source. Thus, I'm much more interested nowadays in what
the likes of Lawrence Lessig have to say than in what Debian,
OSI, or FSF have to say.  If these latter organizations want to stay 
relevant in the area of open-source ideas, then they need to adjust to 
the changing times.  Like it or not, real law hacking requires real law
hackers, not computer scientists who have taken a class or two on law.


Lex



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