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Improving the FLOSS legal landscape

At the close of SCALE 8x I caught a presentation by my colleague Richard Fontana, who was talking on Improving the Open Source Legal System.  Richard’s proposal is to consider FLOSS licensing and legal landscape as its own international legal system.  This is instead of how we do it now, which is to try mapping license terms to local law, or ignoring the problems that arise from that.

I hadn’t thought about it before, I’m used to thinking in terms of locality for law.  This is the law that generally touches us every day – from traffic to local statutes.  I’m sure we’re regularly affected by international commercial law, for example, but I just don’t spend much time thinking about it.

It hadn’t occurred to me that we could support FLOSS licensing in this way.  Richard laid out some areas that need attention for the idea to actually work.

  • Stewards of widely used licenses need to provide public guidance on interpretation and usage, such as how the FSF does for the GPL family.
  • Projects should document their interpretations of the licenses they use, such as how they intend them to interoperate.  Fedora is a great example here.
  • They can also help by documenting policies on inbound contributions, such as what Richard and I did for The Open Source Way.
  • Distribution projects can help police licensing and explain their own rationale, such as how Debian and Fedora have done it.
  • Consider community dispute resolution institutions to resolve intracommunity FOSS licensing conflicts and questions.  The SFLC has assisted in this before, but that is not a very scalable solution.
  • … plus others I didn’t capture in my notes; we’ll have to get Richard to write an article about it.

After listening to this and some follow-up questions from the audience, I stood up and suggested that there seemed to be an existing community of practice around FLOSS licensing.  Maybe we should formally recognize it, invite wider participation, maybe setup some infrastructure.

Such a community of practice could define and provide guidance as a stand-alone, neutral party that all interested people can participate in.  Individuals in upstream projects, downstream distros, or stand alone developers can join and bring questions for discussion.

This is a classic example of a situation where a community of practice can be highly successful.  I’m not sure how it fits in, but I’d like to see be a central place to hear from the community around international FLOSS licensing.

I walked away with one last thought, after listening to Richard share his thought processes as he has pondered this domain.  More than nearly every other lawyer on the planet, Richard has been exposed to many aspects of FLOSS licensing in an international arena.  His musing left me thinking how the law is a completely human constructed mindscape, meaning the ability to do thought experiments is greatly expanded.  Imagine if you could work on physics problems in a mental universe where the laws of physics were your own construction.  Not wildly speculated science fiction, but well thought out and explored mental maps.

Non-lawyers tend to think of the law as immutable.  Perhaps in some ways it is, when you take a snapshot of it in the moment, with current thinking and case law.  But new thinking, it seems, can cross with case law, and possibly give out something new that didn’t exist before.  There are current international legal constructs that didn’t exist a hundred years ago.  It seems like a time to make another one for FLOSS licensing.

Fontana at SCALE 8x

From the inky shadows on the right, Richard Fontana reviews the FLOSS legal landscape.