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6. Open source licenses may not discriminate against persons or groups, fields of endeavor or types and brands of technology. Proponents of open source software insist that software not be a battleground on which political or philosophical or business wars are waged. In many jurisdictions around the world, discrimination on the basis of race, age, religion, national origin, sex, sexual orientation, health status, and other personal characteristics is always illegal. This open source principle is intended to extend that broad list, not to replace it. To be consistent with this open source principle, all terms and conditions of the license must demonstrably encourage rather than discourage software freedom for all licensees. _____________________ The sentence: "This open source principle is intended to extend that broad list, not to replace it." raises exactly the issue it seems aimed at resolving; namely, whether the OSD should be a vehicle for "expanding" anti-discrimination law protections as an affirmative standard for approval of "open source" licensing. My thoughts on this are twofold: [1] that OSD 5 or the proposed OSD 6 should be explicitly limited to matters that generally are NOT already covered by laws; in other words, the OSD should restrict the term "discrimination" to apply to matters that are important to the goals of the open source community (see below), and [2] when it comes to matters of invidious discrimination the legal instrument (the license) as well as how the license is used might be pertinent to any meaningful enforcement of compliance with OSD 6. In this regard, it might be more effective to have license submitters "attest" to compliance with a notice statement rather than put OSI in the position of withholding approval on the basis of a textual conclusion about invidious discrimination. Regarding my first thought, if we accept the argument that the OSD should *generally* reflect the values of "freedom of contract," and only set guidelines directly relevant to open source licensing, then the OSD's anti-discrimination clause should be restricted to very specific inherently connected matters rather than broadly read to encompass the broad list in OSD 6. What might that be? Well, for example, regarding the issue of encouraging governments to use open source software, OSD 5 or the proposed OSD 6 could clarify that licenses that contain terms which discriminate against (by prohibiting use of) free software governed by the GPL in E-government would not be in compliance with the OSD. Other examples might be licenses that discriminated against Linux users or the use of software for biometric research, unless expressly prohibited by law. My thoughts on this follow my belief that as a practical matter, the opprobrium that would attach to any license circulating in the open source community that discriminates on the basis of the factors listed in the proposed OSD 6 is likely to achieve the goal of OSD 6 without putting OSI in the position of actually having to affirmatively police a potentially cumbersome and difficult process. -Rod Rod Dixon, J.D., LL.M. http://www.cyberspaces.org -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
