Comments on Fontana's view of CC licensing and what Free Software licensing can learn from it [LWN.net]

Comments on Fontana's view of CC licensing and what Free Software licensing can learn from it

Posted Dec 15, 2012 19:04 UTC (Sat) by bkuhn (subscriber, #58642)
Parent article: Fontana: What open source licensing could learn from Creative Commons (Opensource.com)

[ I also posted this comment over on Fontana's own blog post.]

As always, I am glad to read what my good friend Fontana has to say. :) However, I must admit that even after studying the CC license suite for the last decade, I'm not sure there is all that learning from its rise that we can easily apply to Free Software licenses. What I've mostly found are a series of “glad Free Software licensing doesn't work that way” responses.

I specifically agree with Fontana's earlier points about the diversity and baroque nature of drafting of Free Software licensing, but I like that aspect. CC is a single organization able to (more or less) dictate policy for the entire licensing infrastructure in the Free Culture community.

One of the major (and, IMO, insurmountable) problems there is the mere existence of ND and NC versions. If CC has succeded in any educational efforts, it has been to convince potential licensors that NC and ND versions are morally equivalent to the pure By-SA options. CC is ultimately a centrist, neutral organization. CC takes the air out of the room for the more radical elements of the Free Culture licensing advocates.

This is where the Free Software world has this right. Brian Behlendorf of the Apache Software Foundation once told me: I'm glad you're around to be a radical, because if you weren't, I'd be a radical by default, when I'm actually a moderate. This concept applies to the licensing infrastructure: The Apache License is seen as the moderate, permissive alternative, but Apache Software Foundation and its license would be radical, if FSF and GPL weren't around.

Indeed, Fontana, while it's true that your copyleft-next project hasn't received as much interest as you'd have liked, wouldn't a similar project to create a replacement for CC-By-SA been an entire non-starter in the Free Culture community? As you know, I've tried to participate with you on copyleft-next even though I'm on the Board of Directors of FSF, but do you think that if you tried to make a CC-By-SA alternative, that one of CC's directors would come help you?

Frankly, I think what CC's suite still shows more than anything else are the dangers of licensing monoculture. That problem drowns everything else. I like CC-By-SA-3.0-USA as a reasonably good strong copyleft for non-technical works, and CC-By isn't too bad of a permissive license for the same. But, with CC controling all Free Culture licenses, I think it's really difficult to draw these distinctions with newcomers. I still see “Licensed under the Creative Commons license” regularly. Licensing monculture is, in some ways, more confusing than what we have the Free Software world.

I do agree Free Software licensing wonks can help simplify and improve understanding, building on the “deeds” model. I began a brief collaboration with noted user inferface researcher, Michael Terry about how we might think about presenting the content and message of GPL better to users. He's got some amazing ideas, but sadly I couldn't get any copyright licensing lawyers interested in working with us on the project, so I had to abandon those efforts. But, honestly, I think most people don't really grok CC licenses, anyway — despite CC's efforts in this regard. I ask every CC licensor that I meet to explain the differences between the various CC licenses, and they usually can't. (I'd love to see a survey study to backup and/or refute my anecodatal assement there, BTW.)

IMO, this whole problem goes back to Noam Chomsky's point about concision. Namely, it's very diffcult to engage the public in discussions on important issues that require deep and complex context. I believe the Free-Software-using public's general inability to easily navigate the baroque set of licenses comes down to the simple, unfortunate (but understandable) “this makes my brain hurt” response.

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Comments on Fontana's view of CC licensing and what Free Software licensing can learn from it

Posted Dec 16, 2012 4:00 UTC (Sun) by rfontana (subscriber, #52677) [Link] (15 responses)

> Indeed, Fontana, while it's true that your copyleft-next project
> hasn't received as much interest as you'd have liked,

The project is less than six months old, ol' Building and Loan pal. That's a millisecond in free software time.

Comments on Fontana's view of CC licensing and what Free Software licensing can learn from it

Posted Dec 16, 2012 10:12 UTC (Sun) by hummassa (guest, #307) [Link] (11 responses)

s/millisecond/century/

There, I fixed it for you...

Time problem

Posted Dec 16, 2012 16:04 UTC (Sun) by man_ls (guest, #15091) [Link] (10 responses)

Perhaps synchronizing the clocks between Free software and CC licensing is the first thing we should do.

Time problem

Posted Dec 16, 2012 18:18 UTC (Sun) by rfontana (subscriber, #52677) [Link] (9 responses)

Oh, that reminds me of a point I've thought about but neglected to mention in that article. One of the problems (I increasingly believe) with free software licenses is that they are updated too infrequently. (One may counterargue that this is one of their great strengths, at least for the more widely-used licenses; maybe both points are true.) The CC license suite upgrade cadence, at least as a matter of practice, is quite different from that of comparable establishment-institution FLOSS licenses

Time problem, or perhaps not

Posted Dec 16, 2012 22:04 UTC (Sun) by man_ls (guest, #15091) [Link]

Given that relicensing is such a difficult feat in Free software, it is no wonder that people are not keen to adopt new licenses for their existing projects. True copyleft licenses are not backwards-compatible, and giving a "version x or later" carte blanche to organizations is not palatable to many developers.

Actually, the proliferation of Free software licenses is currently quite a problem, bearable only because 80+% of projects use the well known GPL(v2 or v3) and most of the rest use MIT or (2/3)-clause-BSD; corporate licenses account for a small percent of all projects. Now imagine if there were many updates with small but significant differences. (If the differences are not significant, then why bother?)

For many people even the GPLv2 works well enough so not everyone is willing to upgrade. Now imagine if there was a new set of licenses (GPL, LGPL, GFDL, and Affero) every year: a new schism for every ideological detail which is embedded in them. Not nice.

But the main reason for the slow upgrade cadence is the lack of perception of existing problems. With the GPL it has taken many years to update it, and apparently both v2 and v3 work well for their users. Why keep updating it?

The real cadence in Free software is not measured by its licenses but by its projects and communities. 8 years ago SourceForge was all the rage when now it's a shade of itself; people used Subversion and git didn't even exist; the most used distro was Mandrake (I believe) and the first Ubuntu version had just been released, while Android (a newcomer in 2004) is now used on hundreds of millions of terminals worldwide.

Meanwhile, in the world of CC licenses they may be updated frequently and are used by more and more people, but there are not many news of interest that I can think of. 8 years ago they were used by some people and now they have many more users. Yawn.

Time problem

Posted Dec 17, 2012 23:16 UTC (Mon) by louie (guest, #3285) [Link] (7 responses)

The CC license suite upgrade cadence, at least as a matter of practice, is quite different from that of comparable establishment-institution FLOSS licenses.

FWIW, I am pretty sure they see this as a bug and would like to move to a more GPL/MPL-like cadence in the future. (This will lock them into bad ideas, like the DRM clause, but the evidence suggests they are already locked into those.)

Time problem

Posted Dec 18, 2012 4:34 UTC (Tue) by mlinksva (guest, #38268) [Link] (6 responses)

I don't see a cadence. Fontana should describe that.

The months between versions so far have been 1.0->2.0: 17 months, 2.0->2.5: 12 months, 2.5->3.0: 20 months. 3.0->4.0 will probably be 60 or so months, ie 4.0 will optimistically be released early next year. An explicit goal of 4.0 is longevity; http://wiki.creativecommons.org/4.0#Goals_and_objectives doesn't say how long, but I hope for 10+ years. Each version has been prompted for a particular set of reasons.

I don't think more than a tiny improvement re DRM will be achieved, but there is still time to give feedback on this and all else, see http://wiki.creativecommons.org/4.0#Items_for_discussion

Time problem

Posted Dec 18, 2012 4:38 UTC (Tue) by louie (guest, #3285) [Link] (5 responses)

The cadence appears to be "double-digit months", which is... not the case for MPL, GPL, or Apache. :)

My understanding is that the DRM discussion is closed, certainly, I don't see any new arguments that could be provided, proved, or otherwise prove persuasive.

Time problem

Posted Dec 18, 2012 5:35 UTC (Tue) by rfontana (subscriber, #52677) [Link] (4 responses)

I guess that's all I really meant. The CC licenses seem to be updated more frequently than comparable (institution-associated?) free/open source software licenses.

Why not a rolling release license? :-)

Time problem

Posted Dec 18, 2012 7:58 UTC (Tue) by man_ls (guest, #15091) [Link] (3 responses)

You still have not answered: what is the advantage of having licenses that are upgraded fast? Or of rolling back changes? Are there so many pressing problems in the licensing world that they need to be addressed this fast?

I understand the proliferation of licenses (and even worse a rolling licenses) would create a myriad of legal interesting problems and a business opportunity for lawyers. Imagine that: "Judge, from 2012-12-18 12:47 to 2012-12-19 17:38 the license gave the right to distribute modified versions without attaching source code, and that is what my client did".

Disclaimer: IANAL, and most of my knowledge of US law comes from watching The Good Wife episodes.

Time problem

Posted Dec 18, 2012 14:29 UTC (Tue) by rfontana (subscriber, #52677) [Link] (2 responses)

You still have not answered: what is the advantage of having licenses that are upgraded fast? Or of rolling back changes? Are there so many pressing problems in the licensing world that they need to be addressed this fast?

"Pressing"? Probably not, though I wonder whether some minor fixes could have significant positive impacts on uptake of specific licenses.

In the proprietary commercial licensing world one doesn't typically see a form license in wide use kept entirely unmodified for, say, 15 years (indeed, licenses don't really have independent existence in a sense that is perceptible to the public; the release of a new product or new version of a product will be accompanied by at least some minor changes to prior versions). This is not necessarily because there are pressing problems to fix, but there are always things worth fixing if you have the ability to do so. As for negotiated license agreements in use for many years, these often see multiple amendments.

I suppose that isn't a satisfactory answer to your question about advantage. I feel that if you see a flaw in a license (I can tell you that in all widely-used licenses there are flaws, though they may not be 'pressing') it's a shame that you "can't" (in some cases this means "won't") fix it (other than, in some cases, through some cumbersome technique of issuing exceptions or clarifications). The idea that we should have to live with what turns out to be a mistake for 15 years, because it's so important to have a degree of legal simplification and stability that has no counterpart outside the FLOSS world, and because it's so important to standardize on a small set of licenses increasingly controlled by institutions, just seems questionable to me. That probably made more sense when "open source" was perceived as being younger and more novel. We are past adolescence.

I understand the proliferation of licenses (and even worse a rolling licenses) would create a myriad of legal interesting problems and a business opportunity for lawyers.

I don't actually think it would mean a net increase in interesting legal problems. The same set of interesting problems exist today because of license stability (and, increasingly, license standardization). Whatever business opportunities "open source" provides for a lawyer in private practice will, I expect, remain constant no matter what happens.

most of my knowledge of US law comes from watching The Good Wife episodes.

That's your problem right there. The Good Wife provides a highly unrealistic portrayal of lawyers, and particularly of lawyers in Chicago.

Time problem

Posted Dec 18, 2012 17:06 UTC (Tue) by man_ls (guest, #15091) [Link]

Thanks for your thoughtful and explanatory comment.

Time problem

Posted Dec 18, 2012 20:00 UTC (Tue) by apoelstra (subscriber, #75205) [Link]

> I suppose that isn't a satisfactory answer to your question about advantage. I feel that if you see a flaw in a license (I can tell you that in all widely-used licenses there are flaws, though they may not be 'pressing') it's a shame that you "can't" (in some cases this means "won't") fix it (other than, in some cases, through some cumbersome technique of issuing exceptions or clarifications). The idea that we should have to live with what turns out to be a mistake for 15 years, because it's so important to have a degree of legal simplification and stability that has no counterpart outside the FLOSS world, and because it's so important to standardize on a small set of licenses increasingly controlled by institutions, just seems questionable to me. That probably made more sense when "open source" was perceived as being younger and more novel. We are past adolescence.

I would argue that from a developer's perspective, the simplicity of having very few (and well-differentiated) licenses is very useful. It means that if you're just looking to link a library or lift code from somewhere, you can read just the title of a project's license to know if you need to keep looking.

And you also know roughly what you're allowed and not allowed to do, without being able to understand the legalese completely.

Having few organizations behind these licenses means that for the weird cases, you know who to ask for clarification.

Fontana, the middle hat is yours!

Posted Dec 16, 2012 18:17 UTC (Sun) by bkuhn (subscriber, #58642) [Link] (2 responses)

Fontana, but I've tried to point you in the right direction, ol' building and loan ol' pal, but you just keep hitting those damned trash cans every time you walk away to try to take copyleft-next home.

'Tis the season for It's a Wonderful Life references. :)

Fontana, the middle hat is yours!

Posted Dec 16, 2012 18:25 UTC (Sun) by rfontana (subscriber, #52677) [Link] (1 responses)

Sentimental hogwash!

Fontana, the middle hat is yours!

Posted Dec 16, 2012 19:47 UTC (Sun) by bkuhn (subscriber, #58642) [Link]

Fontana, unlike Potter, though, it seems your motions are always adopted, at least for copyleft-next. :)