Just Obey The Law?
A clause in a software license that says something that sounds as simple as “you must follow the law” is problematic in practice and likely to render the license unapprovable as open source. Here's why.
- In whose opinion? The law is only certain in specific cases and with the delivery of the judgement of the final court.
- In which jurisdiction? Even in the USA there are multiple jurisdictions, let alone internationally. US State law is increasingly mercurial and compliance in California with law in Florida may not be desirable even if it's possible. Without a jurisdiction it's especially bad – there are laws all over the world we are all breaking all the time.
- When? The law changes, and without a dated requirement the license could suddenly become invalid. What's legal today may not be tomorrow – the UK is about to make end-to-end encryption illegal if it isn't back-doored for the security services, for example.
- Even bad law? The law may need challenging – even in the best of worlds the law is sometimes wrong and on the journey to correct it a license for software people rely on should not be invalidated. You can never know who you will be harming.
- Most importantly, it's not relevant. It is the duty of others to police and enforce the law in general, not of a software license. The software author certainly will not want to do so, and is most likely just trying to cleanse their own conscience at the expense of creating a risk for others.
- Finally, it's pointless. If someone is so motivated by a crime that the law and its sanctions don't stop them, do you seriously think they will reconsider just because you might sue them for infringement of your license? What do you think you can do about it that the state can't?
So a “just obey the law” clause is likely to be discriminatory and including one in your proposed open source license will result in some serious questions from the reviewers. Might be best not to do it!
Notes, Tags and Mentions
- This is not to say you should not obey the law. In the vast majority of cases that is a great idea. Just don't write about it in a license where it isn't relevant, enforceable or resolvable.
- #OpenSource #OSD #Licenses #Meta #Llama
- @osi@opensource.org
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