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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?

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  • 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. Oct 16, 2021 at 17:32
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    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, 2021 at 19:49
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    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, 2021 at 20:43
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    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. Oct 17, 2021 at 2:04
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    "creating a contract" Open source licenses are not contracts, but instead grants of additional rights under copyright law. Oct 18, 2021 at 9:44

5 Answers 5

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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.

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    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, 2021 at 21:21
  • Of course, point 2 also might happen when picking an existing license. Oct 16, 2021 at 23:10
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    @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. Oct 17, 2021 at 8:21
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    @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. Oct 17, 2021 at 8:22
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    @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, 2021 at 8:21
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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.

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    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. Oct 16, 2021 at 14:00
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    "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, 2021 at 18:50
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    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, 2021 at 8:02
  • 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. Oct 17, 2021 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? Oct 18, 2021 at 8:22
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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.

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  • Nice writeup, but the question clearly mentions USA. Oct 19, 2021 at 9:44
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    @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, 2021 at 10:50
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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.

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  • 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, 2021 at 16:32
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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.

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