17

I was hoping to create my own open-source license since none of the existing ones seem to work for what I want. However, someone mentioned to me that in the USA it's illegal to practice law without a license, and that creating a contract is considered practicing law.

Is that true? In the USA, am I not allowed to write my own open-source license if I'm not an attorney?

Ky -
  • 479
  • 5
  • 11
  • 27
    You would be better off explaining why, specifically, none of the existing ones "work"; there is very likely a reason why there's not one that matches your intention. – chrylis -cautiouslyoptimistic- Oct 16 '21 at 17:32
  • 33
    What you're proposing to create is what the open source community calls a "crayon license". It's generally a very bad idea. – Mark Oct 16 '21 at 19:49
  • 32
    Whoever told you this is half-right. It is illegal in all US states to practice law without a license. But simply writing a contract or a license agreement is not itself practicing law. Practicing law means representing someone or taking legal action on someone's behalf. You can even legally represent yourself in court, although this is rarely done by sensible people. – barbecue Oct 16 '21 at 20:43
  • 1
    There are a lot of predefined license like GPL and the Mit licesnse. If they are close to what you want, it maybe easier to go with one of those. – Mark Rogers Oct 16 '21 at 21:55
  • 3
    This question, and OP's concern about practicing law without a license, are more interesting if you look at it from the standpoint of writing it as a contract for another person (specific or general) to use to license their software. I don't know the answer, but I could see there possibly being legitimate concerns if you're going to advise other people that your crayon license achieves certain desirable legal properties. – R.. GitHub STOP HELPING ICE Oct 17 '21 at 02:04
  • 1
    It's your software and you are legally permitted to state the conditions, under which the software may be used. However, it is possible that the conditions themselves are considered illegal. For example, saying that only white people are allowed to use your software will likely be considered discriminatory against a protected group. – MechMK1 Oct 17 '21 at 12:06
  • 3
    "creating a contract" Open source licenses are not contracts, but instead grants of additional rights under copyright law. – Philip Kendall Oct 18 '21 at 09:44
  • @MechMK1 That wouldn't matter anyway since people don't need to agree to, or comply with, the terms of the license to use the software if they lawfully possess a copy. A book can contain a "license page" that says that it can only be read on Thursday, but that would not stop anyone from reading it because they could simply not agree to the license and they would still have the right to read any book they lawfully possess any time they want (unless they agreed not to). – David Schwartz Oct 18 '21 at 10:30
  • 1
    Don't forget that even if an existing license doesn't fit your needs, you can usually start with one that's close and add additional terms as needed. I've seen many things like Apache licenses that don't require license notices in certain cases, or licenses that add clauses to make them compatible with other licenses. – bta Oct 19 '21 at 00:48
  • @DavidSchwartz It's a well established principle of contract law in most jurisdictions that acceptance can be by conduct; it isn't necessary per se that you expressly agree in words. In the case of a licence the conduct is typically "by using this software, you agree...". This is sometimes referred to as browse wrap and whether or not it is binding depends on whether you've had adequate notice of the terms. – JBentley Oct 19 '21 at 09:36
  • @JBentley The acceptance can be by conduct only if you wouldn't otherwise have the right to engage in that conduct. The lawful possessor of a work covered by copyright has the right to use that work, so that can't be the conduct that triggers agreement to the contract. Otherwise, I could say "by using your computer, you agree to give me $100" and then I could charge you for using your own computer. Certainly if I eat your candy bar and you have a sign that the bar sells for $1, I owe you $1. But that's only because I didn't already have the right to eat your candy bar. – David Schwartz Oct 19 '21 at 17:26
  • @DavidSchwartz Not quite. Agreement (of which acceptance is a sub-element) is a separate element of contract formalities to consideration, and your scenarios fail as contracts because something you already had can't be consideration. We can still agree that I will give you $100 to use my computer, but it won't be a binding contract because you gave me no consideration. We could write it as a deed and then it would be binding. But anyway, this isn't the scenario in MechMK1's comment because the hypothetical end user doesn't already have any rights to use the software. – JBentley Oct 19 '21 at 17:36
  • @JBentley The hypothetical end user already has the right to use any item (software or otherwise) that they obtain lawfully. As I said at the very beginning, the ordinary use of an item protected by copyright is a right of possession in the United States. If you lawfully possess a copy of a work, you can use it. You don't need a license to do something you already have the legal right to do. – David Schwartz Oct 19 '21 at 17:45
  • @DavidSchwartz "That you obtain lawfully" is the key part here. If I give you notice, before you've obtained a copy of my software, that by using it you agree to my terms, then on what basis are you arguing that you're going to lawfully obtain it in a way that is not subject to those terms? You seem to be saying that all software licences are unenforceable, which is clearly not the position in law. – JBentley Oct 19 '21 at 17:53
  • @JBentley You can't give someone notice that by using it they agree to your terms because using it is a property right. You can't encumber the transfer of something that's not yours just by saying you've done so, and the copies of the software aren't yours merely because you hold copyright. And, no, this doesn't say that software licenses are unenforceable, only that you have to understand what you're doing to construct them. For example, the GPL makes no attempt to take away any right you would have if you didn't agree to it because it doesn't encumber use. (Point 1 of the accepted answer.) – David Schwartz Oct 19 '21 at 18:21

5 Answers5

53

As Greendrake says, you can legally create your "open source" license. There are two problems with this:

  1. Since you are not an experienced contract lawyer, there is a significant risk that your license doesn't do what you intend it to do. As a consequence, people who you want to use your software might not do so, because your license prevents it or makes it too risky. Or people may use your software in ways that you didn't want to allow, because the text of your license doesn't prevent it.

  2. Your license terms may be incompatible with other open source licenses. For example, I might want to use GPL licensed software A, and your software B with your license in my application. Being careful, I give both licenses to my lawyer, and the lawyer says, "sorry, you cannot possibly follow the terms of both licenses, because GPL and Ky's license require that you do two contradictory things. You can use software A and follow GPL's terms, or you can use software B and follow Ky's license terms, but you can't use both".

All in all I would recommend that you use a widely used open source license.

gnasher729
  • 34,028
  • 2
  • 46
  • 88
  • 22
    I lay out some additional arguments for why this is a Bad Idea here, but the short version is this: For each new license that exists, people have to spend time and energy understanding what it does and how it works. If you tell me "My software is licensed under the GNU GPL, version 2 or later," then I know exactly what that means. But if you tell me "My software is licensed under Bob's Software License," I have to read and understand that license to figure out what I'm allowed to do. This is detrimental to the community as a whole. – Kevin Oct 16 '21 at 21:21
  • Of course, point 2 also might happen when picking an existing license. – Paŭlo Ebermann Oct 16 '21 at 23:10
  • 3
    @Kevin: And that is precisely the reason why the OSI refuses to add licenses to their catalog that they feel are too similar to an existing license already in the catalog. – Jörg W Mittag Oct 17 '21 at 08:21
  • 6
    @PaŭloEbermann: The difference is that for the existing mainstream licenses, there are compatibility charts readily available, whereas for a new or uncommon license, you would first have to do the legal analysis yourself. – Jörg W Mittag Oct 17 '21 at 08:22
  • For each new license that exists, people have to spend time and energy understanding what it does and how it works. This problem is very common in the open source world. How many Linux distros do you need to choose from? How many office suites - does LibreOffice or OpenOffice suit you better? – dotancohen Oct 18 '21 at 07:57
  • 1
    @Kevin it's actually somewhat remarkable how often people don't know about some of the more obscure requirements. Did you know if you ship GPLv3 code on certain types of hardware product, you need to allow the user to replace the code? – user253751 Oct 18 '21 at 08:21
  • @dotancohen the difference is that those are questions that can easily be answered by asking "what's the best tool for the job" - or else they're arbitrary distinctions where it matters little which one you pick. In other words, they can be answered by the ones likely to be making the decisions in the first place: the sysadmins and the software engineers. With software licences you need to get legal teams involved, which in many companies adds a huge lead time to making an engineering decision. And if your company is small enough not have a legal team, it adds risk. – Muzer Oct 18 '21 at 13:51
  • @Muzer I agree completely. My answer was not meant to support the idea of creating a new license, rather, to ponder the prevalence and consequences of NIH. – dotancohen Oct 18 '21 at 14:46
  • @user253751: Yes, everyone who was paying attention knows about that. Linus Torvalds made a big stink over it several years ago. – Kevin Oct 18 '21 at 20:54
  • Another obscure-ish one: If you use LGPL code statically linked, you may satisfy the LGPL requirements by distributing your part of the code in object file format. – user253751 Oct 19 '21 at 12:25
  • @user253751, well, yes. That's the whole point of the LGPL: that it's possible to link closed-source and open-source code together while still retaining most of the benefits of open source. – Mark Oct 19 '21 at 20:59
  • @Mark however most people either understand it as "you may simply use the library" (wrong) or "you must dynamically link it" (also wrong) – user253751 Oct 20 '21 at 08:16
27

Is it legal to write a software license if I'm not a licensed attorney?

Yes.

creating a contract is considered practicing law. Is that true?

Yes and no.

You don't even need to know what the word "contract" means to create one. Indeed, you do it every time you buy or sell.

So, it's "no" when you're doing it for yourself. Or you can say "yes", but you are always allowed to "practice law" for yourself anyway.

Writing your own software license is no legally different from telling your potential buyers how much you want to be paid. What you do is simply set out terms on which people can use your software. Go for it by all means.

That said, by doing it yourself you risk to write something that won't be enforceable in court. This is, however, not to say that lawyers won't ever screw it up. Ultimately it's up to you how to ensure that your license is legally sound: do your own research, hire a lawyer or two, or leave it up to chance.

Greendrake
  • 27,460
  • 4
  • 63
  • 126
  • 15
    This is right. If you offer your neighbor $20 to mow your lawn and they accept, that's a fully "legal" contract for the sale of services. It's extremely unlikely to end up before a court, but if it did, it would be treated as any other contract. – Robert Columbia Oct 16 '21 at 14:00
  • 2
    "This is, however, not to say that lawyers won't ever screw it up" ... (it's should just be much less likely to happen compared to you doing it yourself). – NotThatGuy Oct 16 '21 at 18:50
  • 2
    Common way of lawyers to screw it up in open source is to write too many conditions and clauses that inadvertently make it incompatible with other licenses. – jpa Oct 17 '21 at 08:02
  • Note that "yourself" in the above phrase "you are always allowed to practice law for yourself" is not restricted to your own individual self. IANAL but I did write, edit and negotiate many contracts for my company over a 30 year period. Initially I ran this by our lawyer first, but over time I was able to do the vast majority of it myself, only going to our lawyer for things that were novel, confusing or complex. – RBarryYoung Oct 17 '21 at 15:22
  • @RBarryYoung That's the crux of the question IMO: what licensed attorneys can do that you cannot? Charge money for legal advice? – Dmitry Grigoryev Oct 18 '21 at 08:22
  • It's important to note that you shouldn't just assume that it is legal to prepare all types of contracts. In England and Wales for example, preparing certain types of contracts relating to land or by deed are reserved legal activities (see para 5, schedule 2, Legal Services Act 2007). But this answer is applicable to the majority of contract types. – JBentley Oct 18 '21 at 09:14
  • @JBentley That appears to be a technicality more related to the settlement of land transfers rather than to the right to create a binding sale/purchase agreement. That is, I believe lay people still can make sale/purchase agreements between each other and they will be enforceable. It's just the technical moment of land transfer where lawyers are needed. – Greendrake Oct 18 '21 at 10:12
  • @Greendrake I believe you are only considering paragraph 5(1)(a). Consider instead the combined effect of paragraph 5(1)(c) ("preparing any other instrument relating to real or personal estate") and 5(3) ("“instrument” includes a contract for the sale or other disposition of land"), and also more generally the point about deeds (regardless if related to land). Anyway, my point wasn't so much to highlight these specific examples (which vary by jurisdiction) but rather to say that some degree of caution is needed and we can't necessarily assume that any contract can be prepared legally. – JBentley Oct 18 '21 at 10:21
  • @DmitryGrigoryev that'd depend on the jurisdiction. For example a legal system might require all court filings to be done by a licensed lawyer. In which case you'd need one if you were to sue someone. – jwenting Oct 19 '21 at 08:16
  • @jwenting The jurisdiction is US. – Dmitry Grigoryev Oct 19 '21 at 09:41
5

Jurisdiction:

TLDR; Writing a software licence is not considered "practicing law" so it is legal to do so without being a qualified lawyer.

Full answer

The relevant governing law is the Legal Services Act 2007.

Section 12 sets out the "reserved legal activities" and sections 13, 14, 18, and 19 provide that it is an offence to carry on a reserved legal activity unless you are authorised (e.g. a solicitor) or exempt.

The reserved legal activities are (emphasis mine):

(a) the exercise of a right of audience;

(b) the conduct of litigation;

(c) reserved instrument activities;

(d) probate activities;

(e) notarial activities;

(f) the administration of oaths.

Schedule 2 defines what is meant by each of the reserved legal activities and paragraph 5 covers reserved instrument activities. The following provisions are relevant (emphasis mine):

5(1) “Reserved instrument activities” means —

[...]

(c) preparing any other instrument relating to real or personal estate for the purposes of the law of England and Wales or instrument relating to court proceedings in England and Wales.

5(3) In this paragraph “instrument” includes a contract for the sale or other disposition of land (except a contract to grant a short lease), but does not include -

(a) a will or other testamentary instrument,

(b) an agreement not intended to be executed as a deed, other than a contract that is included by virtue of the preceding provisions of this sub-paragraph,

[...]

Software licenses are almost invariably executed as simple contracts rather than deeds (you will know if it is a deed because there are specific formalities for that such as signature witnesses). Even for the obscure case where you were drafting a deed, there is the following exemption available in paragraph 3(10) of Schedule 3:

The person is exempt if the person is an individual who carries on the activity otherwise than for, or in expectation of, any fee, gain or reward.

JBentley
  • 8,286
  • 23
  • 46
  • Nice writeup, but the question clearly mentions USA. – Dmitry Grigoryev Oct 19 '21 at 09:44
  • 1
    @DmitryGrigoryev See the help page: "Even if you supply a jurisdiction tag, we expect and encourage answers dealing with other jurisdictions – while it might not answer your question directly, your question will be here for others who may be from those jurisdictions." – JBentley Oct 19 '21 at 10:50
3

Writing your own contract can be a legal minefield. When I first went free-lancing I drafted my own agreement, then decided to show it to my lawyer just in case. He made two points (Australian law, but I think that both points would apply in the US).

  1. The meaning of a contract is not necessarily the meaning intended by the parties to the contract: the contract means what a court says it means;
  2. The words in the contract I had drafted could be interpreted by a court as a conspiracy to avoid the Victorian Sales of Goods Act, which was an offence for which one could be imprisoned.

IMHO it's safer to hire someone who is good at negotiating minefields.

Simon Crase
  • 958
  • 2
  • 8
  • Thank you for the answer and welcome! I'm not sure why someone else downvoted this, but I upvoted it because it adds some important context about unintentionally breaking a law. Thankfully, on the Stack Exchange network, upvotes are worth way more than downvotes, so although the score of this answer evens out to 0 as I write this, you gained 10 reputation! Congrats and, once again, welcome – Ky - Oct 18 '21 at 16:32
3

Drafting a contract for another person could be considered practice of law:

Among the acts which constitute the practice of law . . . are the preparation, drafting, or selection or determination of the kind of legal document, or giving advice with relation to any legal documents, or matters including the following:

offers, options, deeds, mortgages, contracts, leases, schedules, petitioners, etc., in bankruptcy, the formation, change, consolidation or dissolution of corporations or partnerships, trust deeds, powers of attorney. 15 Op.Cal.Atty.Gen. 7, 10-11 (1950).

https://www.sdcba.org/?Pg=ethicsopinion83-7

However, prohibitions on the practice of law don't apply to pro se work. That is, you can draft your own contracts, just not contracts for other people. The whole point of such prohibitions is to protect one person from someone else's poor legal advice, not to protect someone from their own poor legal skills. Prosecuting someone for "unlicensed practice of law" because they wrote their own contract would be like prosecuting someone who's self-employed for violation of minimum wage laws.

Acccumulation
  • 6,095
  • 10
  • 28