FOSDEM: Richard Fontana on copyleft-next [LWN.net]

this provision is supposed to apply only to the original upstream licensor

Posted Feb 26, 2013 11:04 UTC (Tue) by Wol (guest, #4433) [Link]

OUCH OUCH OUCH !!!

Just seen this!!!

Which implies a total mis-understanding of copyright.

You can NEVER NEVER NEVER apply a copyright licence clause to the original licensor. The whole point of being the licens*or* is that you are granting rights to others. They can have no claim whatsoever against you.

This is what really bugs me about my understanding of this clause. I can understand the Tivo-isation clause from GPL v3, even if I don't like it. It was meant to stop A taking B's code, and locking it down against B's wishes. It was truly fixing what the FSF saw as a bug in the GPL, in that it did not properly protect the owner of the code from having their code "stolen".

The problem with this clause is it is telling B what they are and are not allowed to do with their OWN CODE. THAT IS "THEFT" (and CANNOT be enforced by copyright law).

I honestly cannot see ANY developer choosing to use a licence like that. They'll use GPL. At the end of the day, Open Source relies on enlightened self interest. If that clause is there, this licence is a waste of time, and, basically, insulting to developers!

Cheers,
Wol

this provision is supposed to apply only to the original upstream licensor

Posted Feb 26, 2013 13:21 UTC (Tue) by nye (guest, #51576) [Link]

>OUCH OUCH OUCH !!!

> Just seen this!!!

> Which implies a total mis-understanding of copyright.

> You can NEVER NEVER NEVER apply a copyright licence clause to the original licensor. The whole point of being the licens*or* is that you are granting rights to others. They can have no claim whatsoever against you.

The way this is being discussed here is confusing and wrong, but the actual licence doesn't make that mistake. The relevant clause is as follows:

>If, more than one year after My first Distribution of My Work under this
>License, I offer to license a Covered Work in a manner that fails to
>satisfy the Open Source Definition published by the Open Source
>Initiative as of 1 January 2013, then I additionally license My Work to
>You under the Apache License (excluding any preexisting material
>contained in My Work over which I do not hold copyright).

Ie. the copyright owner is granting additional rights that become available in the specified circumstances. The licence doesn't claim to change the rights of the licensor; as you say, that would be nonsense.

this provision is supposed to apply only to the original upstream licensor

Posted Feb 26, 2013 15:42 UTC (Tue) by rfontana (subscriber, #52677) [Link]

You can NEVER NEVER NEVER apply a copyright licence clause to the original licensor.

It actually depends on what you mean by 'apply', and what sort of copyright license you're talking about.

The whole point of being the licens*or* is that you are granting rights to others. They can have no claim whatsoever against you.

Leave aside (as you are doing) the possibility of the clause in question applying to a downstream licensor (I haven't decided if this is a problem or not), and focus on the original licensor:

The clause is a copyright license grant from the original licensor. Here is it's wording in copyleft-next 0.2.0, the latest numbered version:

If, more than one year after My first distribution of My Work under this License, I offer to license a Covered Work in a manner that fails to satisfy the Open Source Definition published by the Open Source Initiative as of 1 January 2013, then I additionally license My Work to You under the Apache License [2.0] (excluding any preexisting material contained in My Work over which I do not hold copyright).

This is just saying that, if certain circumstances occur, in addition to granting you a license under copyleft-next, I also grant you a license under the Apache License.

I would not say this gives the downstream licensee a 'claim' against the original licensor, as worded, so much as a defense against a claim by the original licensor for copyright infringement. So, for example, if I'm the original licensor, and I engage in copyleft-next/proprietary dual licensing, and a year goes by and I don't stop this practice, by operation of the license I give you the opportunity to receive the software under an additional license, the Apache License 2.0. If you decide to create a proprietary derivative work out of my code -- much as I myself did -- and I sue you for copyright infringement arising out of your failure to follow the copyleft requirements of the license, my defense is that that very license gave me an escape route to use the Apache License, which is non-copyleft and permits creation of proprietary derivative works.

The problem with this clause is it is telling B what they are and are not allowed to do with their OWN CODE. THAT IS "THEFT" (and CANNOT be enforced by copyright law).

No, it's not theft. As noted, it's a copyright license grant, giving rise to a defense against copyright infringement. The copyright holder obviously cannot enforce this against itself, but that's not the point. It's designed as a self-imposed obstacle for the copyright holder. Much as any developer who uses the BSD or MIT or Apache license cannot complain if a downstream licensee creates a proprietary derivative work.

I honestly cannot see ANY developer choosing to use a licence like that. They'll use GPL.

Developers who wish to reserve the option of a viable business model based on monopolization of the right to create proprietary derivative works of a copyleft codebase are better off using the GPL or AGPL (or some legacy copyleft free or pseudo-free license). Developers interested in a license that discourages such conduct should look into copyleft-next, since it is the first license to attempt to do something about this issue.

this provision is supposed to apply only to the original upstream licensor

Posted Feb 26, 2013 16:22 UTC (Tue) by mpr22 (subscriber, #60784) [Link]

Any entity that wishes to engage in copyleft/proprietary dual licensing already has to either reject any external contribution that would be adjudged significant enough to be copyrightable, or demand a contributor agreement of some sort from everyone who wants to contribute. They also have to either start from nothing, or be derived from existing permissively-licensed code.

As such, I really can't see what this license aims to achieve. Anyone who wasn't planning to engage in the behaviour it's targeting doesn't need it; anyone who was planning to engage in such behaviour won't use it.

this provision is supposed to apply only to the original upstream licensor

Posted Feb 26, 2013 19:40 UTC (Tue) by rfontana (subscriber, #52677) [Link]

> Any entity that wishes to engage in copyleft/proprietary dual
> licensing already has to either reject any external contribution
> that would be adjudged significant enough to be copyrightable, or
> demand a contributor agreement of some sort from everyone who wants
> to contribute. They also have to either start from nothing, or be
> derived from existing permissively-licensed code.

Correct.

> As such, I really can't see what this license aims to
> achieve. Anyone who wasn't planning to engage in the behaviour it's
> targeting doesn't need it;

This is just one of many features of copyleft-next that might be
attractive to some developers. But I suppose I was thinking also that
some developers might like the fact that here, for the first time, is
a license that takes a stand against this behavior.

> anyone who was planning to engage in such
> behaviour won't use it.

That is really the main thing the license seeks to achieve through
this provision. There are benefits to keeping a copyleft license
'pure' by warding off use of it for copyleft/proprietary
dual-licensing. As an example, it will minimize the problem of
pecuniarily-motivated unreasonably-restrictive interpretations of the
license. It will also enhance the ethical reputation of the license
and the community of developers choosing to use it.