What'll We Do When FOSS Licenses Jump the Shark?


Bradley M. Kuhn

Everything Open 2023

Wednesday 15 March 2023

Slides online: ebb.org/bkuhn/talks/SCALE-2020/licensing-jump-shark.html

The Forest and the Trees

  • I spent most of my time looking at GPLv2 and LGPLv2.1 enforcement.
  • When I am cooking, cleaning, etc.; I imagine what if we had better licenses.
  • As I slowly become an elder statesperson of FOSS (I'm 0x32 years old this year!), I am more willing to consider where we went wrong.

Guiding Principle of Software Freedom

    Software freedom & rights advocacy always had a simply stated core principle:

    work toward a world where every individual who uses software has the fundamental right & permission to examine, share, modify, and reinstall modified versions of that software.

A Brief History of FOSS Licensing

  • First three FOSS (Free and Open Source) licenses evolved roughly congruently: GPL, BSD, and X11.

  • GPL (and its proto-versions) were the first copyleft licenses

  • X11's license became the standard for non-copyleft style licenses (MIT license is almost identical in terms).
  • BSD licenses, however, had the problematic “advertising clause” until (as late as) mid-1999. (More on that later)

Copyleft isn't perfect, nor a principle itself.

Copyleft is a strategy of utilizing copyright law to pursue the policy goal of fostering & encouraging the equal & inalienable right to copy, share, modify & improve creative works of authorship. Copyleft … describes any method that utilizes the copyright system to achieve the aforementioned goal. Copyleft as a concept is usually implemented in the details of a specific copyright license … Copyright holders of creative work can unilaterally implement these licenses for their own works to build communities that collaboratively share & improve those copylefted creative works.

— Definition of copyleft from copyleft.org (based on the definition as found on Wikipedia)

The OG BSD Advertising Clause

3. All advertising materials mentioning features or use of this software must display the following acknowledgement [sic]: This product includes software developed by the University of California, Berkeley and its contributors.

Copyleft Drafting Was Informed By 4-Clause BSD

  • Better copyleft licenses, historically, added requirement terms solely related on one issue: rights of users who used/received the software.
  • The fundamental error in the 4-Clause BSD was the license served the ego and self-interest of the authors.
  • The entire point of copyleft was to repurpose copyright rules to serve the general public.

Ego Mitigation & Future-Proof Drafting

  • Human beings can be selfish, egotistical, and prideful.
  • As with any endeavor focused on the public good, only constant vigilance and introspection regarding these worse tendencies can yield an egalitarian process.
  • Also, the responsibility of needing to predict the future can make one arrogant by itself.
  • Good FOSS license drafting remains exceedingly difficult.

The Era of License Proliferation

When the fad of “Open Source” began, companies usually wrote their own licenses. (Starting with Netscape.)

By the early 2000s, there were dozens of organization-specific licenses; some are (sadly) still in use.

The Era of License Proliferation

A large coalition of charities, companies and individuals opposed the phenomenon.

The only folks not on board were a small group of law firm lawyers (many of whom represented Silicon Valley VC-funded start-ups.)

Getting Famous as a FOSS Lawyer

  • Open Source Initiative (OSI) became the center of “approving licenses” as Open Source.
  • Ultimately, OSI's politically has been influenced by lawyers looking to make a name for themselves.

    • (I'll name names in the hallway track if you want.) 🤭

    Are “Approved but Bad” Licenses A problem?

    • Some licenses approved by OSI (or Debian, or SPDX) are problematic, but none of the particularly bad ones have been that popular.
    • I've spent much of my career worried about this lawyer-centric politicization of OSI, but in retrospect it's a minor annoyance, not a disaster.

    Badgeware

    • A redux of BSD Clause 4, but
    • … linked to copyleft requirements.
    • terms of the ilk: “if you fail to display our logo in the way we like, you lose your distribution permissions”

    Every tool is a weapon (if you hold it wrong)

    A much bigger problem: abusive use of trusted copyleft licenses.

    The Scourge of Proprietary Relicensing

    Proprietary relicensing works like this:
    • a company retains all copyrights (single-copyright-held work, or Contributor Licensing Agreements that have same effect).
    • The publicly available license is as strong a copyleft as possible.
    • Captious copyleft license enforcement generates so-called “customers” to purchase expensive proprietary licenses for the same digital artifacts.

    The Scourge of Proprietary Relicensing

    There are entire subareas of software (e.g., FOSS accounting systems, NoSQL databases) where the primary use of open source is some form of proprietary relicensing.

    The Debacle of SS Public License

    In late 2018, MongoDB published the SS Public License (an unauthorized fork of Affero GPL), and immediately relicensed their flagship product under it.

    The license is considered by some to be a copyleft in the most general sense, but it's impossible in practice to comply with license.

    This was the culmination of the corrupt efforts of proprietary relicensors to vie for control of copyleft policy.

    Surprising Allies

    Contemporaneously, a movement to use copyleft to advance other social justice causes besides software freedom had begun.

    License proliferation has begun anew in this space.

    Expansive Social Justice Licenses

    Various licenses, the most popular being the (so-called) Hippocratic License seek to apply a copyleft strategy to software-freedom-unrelated issues.

    License Proliferation Strikes Back

    Now, both for-profit companies and activists have an aligned goal for disparate reasons: the more licenses, the better.

    The universal consensus that copyleft should exclusively advance software freedom has begun to evaporate.

    The Adoption / Defense Dichotomy

    Strength of copyleft has always been a trade-off between preserving software freedom and technological adoption.

    If a codebase is copyleft, but it rarely appears in consumer products, its software-freedom defense is limited.

    Copyleft needs not only great license drafting, but excellent developers who toil to create software that folks “can't live without”.

    Who Is This Drafted For?

    Even well-meaning copyleft drafting has leaned toward large software businesses.

    Complicated licensing terms that require a lawyer to explain thwarted adoption of the GPLv3 family of licenses.

    Companies did lobby during drafting of GPLv3; the GPLv3 drafting team was, IMO, insufficiently experienced to appropriately thwart and disarm this lobbying.

    GPLv3's Badgeware Clause?

    Notwithstanding … you may … supplement the terms of this License with terms: …

    b) Requiring preservation of specified reasonable legal notices or author attributions in that material or in the Appropriate Legal Notices displayed by works containing it; …

    Heard of Novell lately?

    [A] “patent license” is any express agreement or commitment, however denominated, not to enforce a patent (such as an express permission to practice a patent or covenant not to sue for patent infringement).… A patent license is “discriminatory” if it does not include within the scope of its coverage, prohibits the exercise of, or is conditioned on the non-exercise of one or more of the rights that are specifically granted under this License.…

    Who Does This Help (other than Novell & Microsoft)?

    You may not convey a covered work if you are a party to an arrangement with a third party that is in the business of distributing software, under which you make payment to the third party based on the extent of your activity of conveying the work, and under which the third party grants, to any of the parties who would receive the covered work from you, a discriminatory patent license (a) in connection with copies of the covered work conveyed by you (or copies made from those copies), or (b) primarily for and in connection with specific products or compilations that contain the covered work, unless you entered into that arrangement, or that patent license was granted, prior to 28 March 2007.

    The Problem of Stewards

    • Historically, OSI has been skeptical of licenses without a steward.
    • Most stewards are inadequately transparent gatekeepers between the community of potential copyleft users (namely, those who might apply copyleft to their own code) and their license.

    The Problem of Stewards

  • I suspect most people who pick a copyleft license haven't actually read it (nor do they want to read it)?
  • Should we tolerate the unquestioned trust stewards receive?
  • If not, how will we convince folks to read copyleft licenses and adopt them?

    • Ok, So We Should Cancel the Copyleft Show?

    (Order on Etsy from TravisChapmanArt)

    Ratings?

    Cultural Reinterpretation

    Copyleft Is Software Freedom's Only Option

    The copyright regime restricts software freedom by default.

    Copyleft, as flawed as it is, remains the only way to defend software freedom.

    (e.g., we aren't going to get legislation mandating software freedom passed, or get software freedom added to the UN Declaration of Human Rights.)

    A New Form of Copyleft Drafting

    Copyleft-next is a project that seeks to draft future copyleft licenses fully in public and transparently.

    Prioritizes slow, deliberate improvement over rapid response.

    Run licensing drafting like a FOSS project.

    “Brevity [may be] the soul of wit” …

    … but readability for non-lawyers is paramount.

    Hindering Backchannels Rule

    No private mailing lists (including but not limited to those governed by the so-called Chatham House Rule) will be used by this project. Public archiving of mailing lists used by this project is strongly encouraged; however, archives are not mandatory and partial archiving is permitted.

    Except in extraordinary cases, private telephone calls, private teleconferences, private in-person meetings, and private email communications shall not be used to discuss substantive development of this project. Should such private communications nevertheless occur, participants in such communications are expected to publish summaries of any relevant discussions in a manner or medium accessible to the general net public.

    Hobbyists, Hobbyists, Hobbyists

    • The best FOSS is created when led by hobbyists
    • We need future copyleft drafting to come from the hobbyist culture, not lawyers, and not for-profit companies.
    • Solving licensing problems is like coding, and writing new code is often more fun that fixing buggy solutions.
    • No matter what, we need a new experiment.

    (Pre)-Announcing

    next.copyleft.org

    More Reading

    More Info / Talk License

    URLs / Social Networking / Email:

    Presentation and slides are: Copyright © 2017, 2018, 2019, 2020, 2023 Bradley M. Kuhn, and are licensed under the Creative Commons Attribution-Share Alike 4.0 International License. Slide Source available.

    Some images included herein are ©’ed by others. I believe my use of those images is fair use under USA © law. However, I suggest you remove such images if you redistribute these slides under CC-By-SA 4.0.