A Second Cambrian Explosion of Open Source Licenses Or Is it Time For Open Source Lawyers to Have Fun Again?

from the fun-with-open-source-licensing dept

As the open source world has grown, so have concerns about the context in which openly licensed items are used. While these concerns have existed since the beginning of the open source movement, today?s larger and more diverse movement has brought new urgency to them. In light of this revived interest within the community, the time may be ripe to begin encouraging experimentation with open source licensing again.

How We Got Here

While the history of open source software is long and varied (and predates the term open source software), for the purposes of this blog post its early evolution was driven by a fairly small group of individuals motivated by a fairly homogeneous set of goals. As the approach became more popular, the community developed a wide range of licenses designed to address a wide range of concerns. This ?First Cambrian Explosion? of open source models and software licenses was a time of experimentation within the community. Licenses varied widely in structure, uptake, and legal enforceability.

Eventually, the sprawling nature of this experimentation began to cause problems. The Free Software Foundation?s Free Software Definition and the Open Source Initiative?s Open Source Definition were both attempts to bring some order to the open source software world.

In the specific context of licensing, the Open Source Initiative began approving licenses that met its criteria. Soon thereafter, it released a License Proliferation Report detailing the challenges created by this proliferation of licenses and proposing ways to combat them.

These activities helped to bring order and standardization to the world of open source licensing. While OSI continues to approve licenses, for well over a decade the conventional wisdom in the world of open source has been to avoid creating a new license if at all possible. As a result, for most of this century open source software license experimentation has been decidedly out of style.

Largely for the reasons described in the License Proliferation Report, this conventional wisdom has been beneficial to the community. License proliferation does create a number of problems. Standardization does help address them. However, in doing so standardization also greatly reduced the amount of license experimentation within the community.

Reduced experimentation means that concerns incorporated into approved licenses (access to modifications of openly licensed code) have been canonized, while concerns that had not been integrated into an approved license (restrictions on unethical uses of software) at the moment of formalization were largely excluded from consideration within the open source community.

What Changed

What has changed since the move towards codification of licenses? The open source software world has gotten a lot bigger. In fact, it has gotten so much bigger that it isn?t just the open source software world anymore. Creative Commons – today a towering figure in the world of openness – did not even exist when the Open Source Initiative started approving licenses. Now the open world is open source hardware, and Creative Commons-licensed photos, and open GLAM collections, and open data, and all sorts of other things (this is a whole other blog post). The open source world has moved beyond early debates that questioned the fundamental legitimacy of open source as a concept. Open source has won the argument.

An expansion of applications of open source has lead to an expansion of people within open source. Those people are more diverse than the early open source software proponents and are motivated by a wider range of interests. They also bring with them a wider range of concerns, and a wider range of relationships to those concerns, than early open source adopters.

What is Happening Now

This broader community does not necessarily share the consensus about how to approach licensing that was developed in an earlier period of open source. They bring a range of viewpoints that did not exist in the earlier days of open source software into the open source community itself. They are also applying open source concepts and licenses to a range of applications that were not front of mind – or in mind at all – during the drafting of today?s canonical licenses.

Unsatisfied with the consensus rules that have delivered us the existing suite of (incredibly successful) licenses, parts of the community have begun experimenting again. Veteran open source lawyers are rewriting licenses with public understandability in mind. Community members are transforming their interpretation of open source development into licences that invite collaboration without intending to adhere to the open source definition. Some of these licenses are designed to address concerns traditionally excluded from the scope of open source licenses. I am directly involved in the ml5.js attempt to do just that.

The creators of these experiments are responding to a standardized approach to licensing that does not fully accommodate their needs and concerns. In some cases the standardized approach does not accommodate these concerns because the community litigated including them in the past and decided it could or should not be done. However, even in those cases, that debate happened within a very different community in at least somewhat different contexts. The conclusions arrived at then are not necessarily valid for the broader world that open source finds itself inhabiting.

In light of that, it may be time to begin encouraging experimentation in open source licensing again. Encourage people to test out new approaches by applying them to real world problems. In some cases, the decisions made in the past will prove to be robust and sustainable. In others, a new debate will reveal the decisions? shortcomings. In both cases, the open source community will be stronger by being tested from within.

Coda: Is This Post Just a Lawyer Advocating for Lawyers to Have More Fun?

Throw out the old ways of doing things! Try something new! Experiment! Is this just a call for lawyers to have fun by screwing around with exotic licensing concepts at the expense of everyone else?s stability (and sanity)?

It could be. But I don?t really think so. The thing about lawyers (as a group – there are always exceptions) is that novelty and instability makes us nervous. Things that are tried and true will probably work. That means we do not have to worry about them. New things – who knows what will happen to them? That uncertainty makes lawyers nervous.

That is part of the reason why lawyers like today?s conventional wisdom. The canonical set of open source licenses have more or less worked for decades. It is unlikely that they will explode, and it is even less likely that they will explode in the face of the lawyer who uses them on any given project. In contrast, any lawyer who writes their own license is setting themselves up for a period of anxiety, waiting to discover what they missed or how things will go wrong.

Of course, some lawyers do think it is fun to cook up new open licenses. And maybe this post is a call for them to do more of it. But, on balance and as a whole, introducing new licenses into the world of open source will probably cause open source lawyers more anxiety than joy.

I think that anxiety is probably worth it. But that will be far from a universally held position.

Originally published on Michael Weinberg’s blog and repbulished under a CC-BY-SA 4.0 license.

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Comments on “A Second Cambrian Explosion of Open Source Licenses Or Is it Time For Open Source Lawyers to Have Fun Again?”

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18 Comments
Anonymous Coward says:

Call a spade a spade

Community members are transforming their interpretation of open source development into licences that invite collaboration without intending to adhere to the open source definition. Some of these licenses are designed to address concerns traditionally excluded from the scope of open source licenses.

In other words, they’re creating more proprietary licenses. Imposing the requirement that a piece of software be used only for good and not bad, or that the user adhere to a CoC violates freedom 0.

urza9814 (profile) says:

Re: Call a spade a spade

"Freedom 0" is the Free Software definition, this article is discussing open source. And in THAT context….we just need to talk about principles five and six of the open source definition. 🙂

Most CoCs are more of a terms of service document for a project’s private infrastructure…and as far as F/OSS goes, that’s perfectly fine. But making that into a license — saying you can revoke someone’s right to use a library (not distribute, use, which goes beyond what traditional open licenses even attempt to regulate — although that may make sense in a SaaS age) if you feel they don’t sufficiently "acknowledge others’ feelings" or because you used it to build a dildo is a clear violation of the OSD and also just an utterly ridiculous thing to do. The license says that if you use that library, you MUST make me "feel heard". So if I ask a question but I’m distracted and don’t hear your response, YOU violated the license terms! My personal feelings are now YOUR responsibility! Brilliant idea, isn’t it?

Isn’t precision also something lawyers are supposed to like? Kinda goes along with the hating uncertainty thing, doesn’t it? But this license sets up a small, self-appointed committee (with no system in place for that committee to ever change or be in any way responsive to the community) that can revoke anyone’s rights for any reason at any time — literally "they looked at me in a way that made me uncomfortable" seems to be a perfectly valid justification under that text, so ultimately the committee can justify almost any decision they want. I really hope nobody would use such vague, arbitrary, and dictatorial terms for anything serious….

urza9814 (profile) says:

Re: Re: Re: Call a spade a spade

Well sure, but it’s fraud to call this an open license, and it’s kinda fraud to call it a license at all. It’s no different that a regular copyright really. You can use it as you want until they decide you can’t. Most licenses can’t be revoked in that way. Most licenses have clearly defined terms.

And furthermore…I think this document claims rights that they legally do not have. Ultimately it’s all based on copyright, right? You agree to and comply with the terms or it’s copyright infringement. Since when does the copyright holder of a book get to say who can READ or OWN the book though? Copyright covers production and distribution, not use. This license is trying to claim a right to regulate use.

You could say it’s just a combined distribution license and EULA, but EULAs cover services. A document isn’t a service. You can regulate access to a server with a EULA, but once it leaves that server (which this license allows) the EULA can no longer apply (but this license claims it would).

The whole thing is a mess and hopefully largely unenforceable…

This comment has been flagged by the community. Click here to show it.

Anonymous Coward says:

Re: Right to Repair

No, or at least I highly doubt it. Right to repair may give you access to the source code but not the right to use it anywhere but in the device that being repaired. Open source licenses allow you to use the code on any device. There are restrictions on distribution (as in it often can’t be distributed as part of a closed source product), but that is all.

Lostinlodos (profile) says:

OSS/FOSS/IDGAF

I have long had an issue with most open source licenses for one reason. Restrictions on freedom.
Everything I’ve ever written I’ve released under the non-codified IDGAF license. Namely, tell them I wrote it. Otherwise I really don’t care. Copy it. Edit it. Sell it.

That last one is my big issue with many copy freely licenses. In many cases derivative and combined works need to be the same licensing as the original.
I don’t understand why anyone cares if someone else sells something you gave away. I never have. Your version is still free. How are you hurt by someone selling their variants?

Rich says:

Open >-< Control

A code of conduct is all well and good for maintaining order and civility within a community, but how is this anything other than cerebral comfort food to fuel the delusion that participants aren’t actively pushing the proverbial handbasket straight into Dante’s backyard?
I’m no lawyer, but I would bet that there is far more legal precedent that reinforces the notion that once you give your product away, you surrender your control over who uses it and what they use it for, than there is to support this level of attempted weirdness.
If this sort of thing does become more popular, how soon will it be before Ford or anyone else, for that matter, has a CoC forbidding you to go to Safeway, but only Giant Foods, ’cause politics, or you car won’t start until you pay a penalty?

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