LWN: Comments on "Fontana: What open source licensing could learn from Creative Commons (Opensource.com)"

Fontana: What open source licensing could learn from Creative Commons (Opensource.com)

gerv — Wed, 19 Dec 2012 19:21:32 +0000

I think that the improved license compatibility has come about organically as different orgs update their licenses and bring them into the 21st century. To my mind, there's now an upwardly-compatible continuum of best-of-type licenses:

   Apache 2.0 (permissive)
-> MPL 2.0 (weak copyleft)
-> LGPL 3.0 (medium strength copyleft)
-> GPL 3.0 (strong copyleft)
-> AGPL 3.0 (network service copyleft)

Apart from the fact that there's no central committee, that seems to me to be the suite you are looking for.

Gerv

Time problem

apoelstra — Tue, 18 Dec 2012 20:00:20 +0000

> 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.

Time problem

man_ls — Tue, 18 Dec 2012 17:06:44 +0000

Thanks for your thoughtful and explanatory comment.

Time problem

rfontana — Tue, 18 Dec 2012 14:29:54 +0000

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.

It used to be simpler

rfontana — Tue, 18 Dec 2012 13:53:17 +0000

most contributors into the creative commons AFAICT are individuals who never ran the idea past a lawyer, rather than corporations or corporate employees acting for their employer. I think if you had the likes of Fox and Disney creating to this commons you'd see a Fox Commons and Disney Commons license that each introduced subtle differences on the advice of their lawyers

Maybe, though I think your comment understates the degree of success I see Creative Commons having achieved in the corporate and governmental realms. When thinking about what to write about on opensource.com to commemorate the 10th anniversary of CC, I thought of talking about Red Hat's path from very limited use of Creative Commons (typically the non-free ones) to fairly extensive use of CC BY-SA for some purposes (much project and product documentation, and much of the opensource.com website content, being good examples).

Time problem

man_ls — Tue, 18 Dec 2012 07:58:59 +0000

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

rfontana — Tue, 18 Dec 2012 05:35:04 +0000

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

louie — Tue, 18 Dec 2012 04:38:41 +0000

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

mlinksva — Tue, 18 Dec 2012 04:34:43 +0000

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

louie — Mon, 17 Dec 2012 23:16:45 +0000

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, or perhaps not

man_ls — Sun, 16 Dec 2012 22:04:28 +0000

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.

Fontana, the middle hat is yours!

bkuhn — Sun, 16 Dec 2012 19:47:25 +0000

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

It used to be simpler

tialaramex — Sun, 16 Dec 2012 18:56:19 +0000

Oh, and the main reason this hasn't tripped up CC is that most contributors into the creative commons AFAICT are individuals who never ran the idea past a lawyer, rather than corporations or corporate employees acting for their employer. I think if you had the likes of Fox and Disney creating to this commons you'd see a Fox Commons and Disney Commons license that each introduced subtle differences on the advice of their lawyers.

The reduced insight has a downside too, CC is far more likely to result in a withdrawal of consent, because the people putting CC licenses on their work have often not really considered what that really means. That is: if you re-purpose a piece of CC-BY art in a way that its creator doesn't like it is not at all unlikely that they will declare that they never intended to allow you to do that, and although you could win a legal battle if you wanted to pay for the lawyers you will probably lose the moral argument and suffer damage to your reputation accordingly.

It used to be simpler

tialaramex — Sun, 16 Dec 2012 18:44:40 +0000

Long before Netscape even /existed/ you could find (particularly in the BSDs and Linux distros) a host of almost-but-not-quite-BSD licenses.

Someone asks if they can distribute useful program A, their superiors foolishly run the proposed BSD license by the lawyers, and the lawyers agree /but/ they want a small tweak to the wording and of course Berkeley must be replaced by Foo Corp all throughout.

So now you have the Foo Corp license, which is almost but not quite exactly the same as a BSD license, but with different branding. Only Program A is under this license, but every product which includes A has to paste in the whole verbiage written by Foo Corp's lawyers in case it matters. Already we're off to a bad start.

However sometimes the lawyers "tweak" is not so insignificant after all. If someone did a bad job of explaining what the terms are supposed to achieve we may find (as has happened with various useful BSD components) that the lawyers thought the idea was to keep the OS free but somehow make the individual program still non-free when separated. Or they thought it was supposed to be free on the Internet, but non-free when shipped on physical media. Or any number of other crazy restrictions that serve no-one but inconvenience everyone.

The FSF's "Don't change the license text" rule is a good rule. Forced to choose between "Yes" and "No" the company lawyers will often reluctantly say "Yes". If you let them choose "Change the license" that's what they will pick every time.

Fontana, the middle hat is yours!

rfontana — Sun, 16 Dec 2012 18:25:50 +0000

Sentimental hogwash!

Time problem

rfontana — Sun, 16 Dec 2012 18:18:25 +0000

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

Fontana, the middle hat is yours!

bkuhn — Sun, 16 Dec 2012 18:17:00 +0000

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. :)

Time problem

man_ls — Sun, 16 Dec 2012 16:04:02 +0000

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

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

hummassa — Sun, 16 Dec 2012 10:12:55 +0000

s/millisecond/century/

There, I fixed it for you...

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

rfontana — Sun, 16 Dec 2012 04:00:48 +0000

> 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.

It used to be simpler

epa — Sat, 15 Dec 2012 21:39:33 +0000

Formerly the FSF acted rather like Creative Commons in publishing licences which could be widely adopted. With the addition of a simple permissive licence (new-BSD, or X11) you have three licences: permissive -> LGPL -> GPL, where each is a superset of the following one and can be 'upgraded' to it painlessly.

I think the Netscape source release was the point where free software licences started multiplying quickly. There were some corporate requirements which didn't fit with the FSF's goals in writing their copyleft licences. Unfortunately the gap between FSF and many free software authors has only widened since then - there are those, like Linus, who like copyleft on the level of 'you must publish source code' but are content for the program to be used on locked-down devices where the user can't make use of that source code to change what the device does. It's unlikely that FSF will ever publish intermediate not-quite-GPL3 licences to satisfy these requirements - beyond the fact that GPL2 still exists. So the FSF won't return to being like Creative Commons: the central source of licences which almost everyone is happy to use.

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

bkuhn — Sat, 15 Dec 2012 19:04:37 +0000

[ 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.

Fontana: What open source licensing could learn from Creative Commons (Opensource.com)

coriordan — Sat, 15 Dec 2012 12:31:23 +0000

> The danger for open source, at least, is excessive influence from my own guild, excessive influence by what (for lack of a better term) I have thought of as "FLOSS establishment institutions", and insufficient participation by developer constituencies.

I'd say the danger today would come from "Linux" organisations who have funders and boards of directors that are mostly representatives of pro-patent, proprietary software companies (Linux Foundation, for example).

Developers don't necessarily have to do the legal work themselves, that can be left to community members who specialise in law.

But how do we differentiate between community members who specialise in law, and legal people from "Linux" organisations? Many community members who want a legal job go and work for these organisations since they have money.

Tough problem. I think we're best off leaving well enough alone. FSF controls the main licence for historical reasons which couldn't be recreated today, and FSF's control is the main thing keeping the licence free. In short, we got lucky. Let's not spoil it.

Fontana: What open source licensing could learn from Creative Commons (Opensource.com)

n8willis — Sat, 15 Dec 2012 01:57:33 +0000

Well, I don't think it came across as slavish adoration or anything. Would "considered lack of naked contempt" have been more fitting? 'Cause that was my second choice....

Nate

Fontana: What open source licensing could learn from Creative Commons (Opensource.com)

rfontana — Sat, 15 Dec 2012 01:37:16 +0000

"Admiration" is a bit more than I meant to convey. The context is that in the past I have viewed the idea of a future CC-style free software license suite as a nightmarish scenario; I am now able to imagine some potential benefits. But the only way something like this could work is if you carefully constrain the involvement of lawyers as well as what I refer to in the article as (for lack of a better term) "FLOSS establishment institutions". (Those who know me well enough will recognize the allusion here to my semi-joking use of 'The Establishment' to refer to influential interest groups in free software that exercise a political, administrative or bureaucratic role rather than a software development role. At least, that's what I sometimes mean by 'The Establishment'. :)