[Fedora-legal-list] "Must-read" licenses and their ethical implications. Possible workarounds.

[Richard Fontana]

On Mon, Feb 08, 2010 at 08:18:21AM +0100, Christopher Svanefalk wrote:
> At least one OSI-certified license today (the "W3 Software Notice
> and License") contains a provision like this:
> 
> "By using this software in any way, you acknowledge that you have
> READ, UNDERSTOOD, and will comply with this license".
> 
> In other words, the license seems to put a moral burden on the end-
> user to both read and understand the license in order to be granted
> any rigths to even use (let alone modify and distribute) the
> software it covers. There may be other licenses that have "lighter"
> provisions of the same type (such as "you understand that you may
> not remove or alter any copyright notices" and the like) in their
> text, and I will include those here for the sake of discussion, as
> falling into the same category.
> 
> I believe restrictions like this are contrary to the spirit of
> FOSS. As the FSF definition says:
> 
> "The freedom to run the program means the freedom for ANY KIND of
> person or organization to use it on any kind of computer system"
> (http://www.gnu.org/philosophy/free-sw.html, emphasis added)
> 
> Licenses like this do not grant this freedom to everyone - it
> expressly grants it only (at least in the ethical sense) to people
> who can affirm that they have read and understood whatever the
> license requires them to read and understand.
> 
> What this could mean in practice might be that end-users might have
> to pre-screen the licenses (including any third-party licenses) for
> packages they install, just to make sure they comply with the
> ethical side of these restrictions. Needless to say, that would put
> a large and impractical burden on the end-user, which I believe
> land us in a situation where we are no better off then in a
> proprietary environment, which (in my view) is unacceptable for any
> FOSS project.

This is a very interesting issue, about which much could be said.
Actually, clauses similar to this one are not uncommon in FOSS
licenses, though they differ in details and degree of
annoyingness. They are invariably fossils from proprietary commercial
software licensing culture where they originated as (arguably
quixotic) efforts to establish contractual assent.  I myself would say
that, in theory, as a matter of caution, users should 'pre-screen',
but we cannot deny that, in typical FOSS distribution contexts, no one
generally does this, and it is usually impractical to do so.

I would say that the W3C type of clause is generally assumed within
FOSS culture to have no interesting legal meaning and to be purely
ceremonial.  I believe this explains why, for example, the W3C license
is considered by the FSF to be not only free but GPL-compatible,
despite the existence of the clause.  However, any such clause has to
be examined carefully; if it appears to be a real enforceable
condition on the grant of rights, or if the licensor acts in such a
way as to suggest that this is the licensor's view, we might well
classify the license as non-free; indeed we may have done so in some
past decisions.

>  Possible workarounds - -------------------- I believe the perfect
> situation is ABSOLUTE freedom to run the software, without any
> extraordinary legal obligations toward the licensor, as is granted
> expressly by the GPLv2 ("There are no restrictions on running this
> software").  Again, legal or moral pre-reqs like this on free
> software excludes people who for any reason are not able to fulfill
> them (take into account that the license might only be available in
> english, or contain complex legal language, and you see the
> difficulty this will pose for most people who are not
> english-speaking lawyers).  I believe it is possible to get around
> this problem, in fact, it may already be solved. Here are some
> suggestions: 1) Compile against GPL2+ code - Now I am not sure about
> this, but does not combining code under a GPL-compatible license
> with code under the GPL cause the combined work to fall under the
> GPL? 

Often, yes.

> If this is the case, does that mean that any terms of the GPL-
> compatible license (such as the W3C) can be ignored after such
> combination? 

No, not usually, in the sense that the terms generally are assumed to
persist and burden users of the GPL-licensed larger work
downstream. This is the whole assumption behind GPL compatibility
theory.

> In that case, the situation would be solved for
> packages that are combinations of the W3C licensed code and GPL
> code.  2) Display any "must-read" terms in the package manager -
> Hack the package manager to popup a shrink-wrap window where the
> user has to affirm they have read and understood what the license
> requires. I admit this is an awful, ugly solution.  

Agreed. 

> 3) Ban any
> licenses that would fall into this category (possible, since for now
> the only license of this type I know off is the W3C). 

No, for the reason stated above; we generally don't take such clauses
seriously.

> 4) Petition
> license authors to provide global waivers that remove these
> provisions from the licenses (possible if it came from the
> community, perhaps not an individual).  

Generally not necessary, for the reason stated above.

-- 
Richard Fontana
Red Hat, Inc.