Pushing back against licensing and the permission culture

tl;dr: the open license ecosystem assumes that sharing can’t (or even shouldn’t) happen without explicit permission in the form of licenses. What if “post open source” is an implicit critique of that assumption – saying, in essence, “I reject the permission culture”? If so, license authors might want to consider creating options that enable people to express that opinion.

A few months back, James Governor said:

While the actual extent of “POSS” is debatable, there is definitely an increase in the amount of unlicensed code out there. This post suggests 20+% of the most-watched github projects are unlicensed. The pushback against licensing isn’t specific to software, either – at least some sharing musicians are deliberately spurning Creative Commons (via Lucas) and Nina Paley has been obliquely making the same point about the licensing of her art as well.

A few months back, I pointed out that the lack of licensing led to confusion and so was great for lawyers. That post was accurate, but slightly glib. Here, I want to grapple more seriously with the rejection of licensing, and provoke the licensing community to think about what that means.

A dab of history and context

In the US, prior to the 1976 Copyright Act, you had to take affirmative steps to get a protectable copyright. In other words, you could publish something and expect others to be able to legally reuse it, without slapping a license on it first.

Since the 1976 Act, you get copyright simply by creating the work in question. That means every blog post and every github commit is copyrighted. This restrictive default, combined with the weakness of fair use, leads to the “permission culture” – the pernicious assumption that you must always ask permission before doing anything with anyone’s work, because nothing is ever simply shared or legally usable. (This assumption is incorrect, but the cost of acting that way can be high if you make a mistake.)

Permission, by Nina Paley.
Permission, by Nina Paley.

“POSS” might be more than just bad hygiene

It is easy to assume that the pushback against licenses (“post-open source”) is because licensing is confusing/time-consuming and people are lazy/busy. While I’m sure these are the primary reasons, I think that, for some people, the pushback against licenses often reflects a belief that “no copyright should mean no permission needed”. In other words, those people choose not to use a license because, on some level, they reject the permission culture and want to go back to the pre-1976 defaults. In this case, publishing without a license is in some way a political statement  – “not every use should need permission”.1

Fixing(?) the politics of our licenses

If some “no license” sharing is a quiet rejection of the permission culture, the lawyer’s solution (make everyone use a license, for their own good!) starts to look bad. This is because once an author has used a standard license, their immediate interests are protected – but the political content of not choosing a license is lost. Or to put it another way: if license authors get their wish, and everyone uses a license for all content, then, to the casual observer, it looks like everyone accepts the permission culture. This could make it harder to change that culture – to change the defaults – in the long run.

So how might we preserve the content of the political speech against the permission culture, while also allowing for use in that same, actually-existing permission culture? Or to put it more concisely:

What would a “license” that actively rejects the permission culture look like?

A couple of off-the-wall options:

  • Permissive+political preamble license: The WTFPL license (“Do WTF you want“) has been floating around for ages, and using it makes the point that (1) you want people to use your code and (2) you’re irritated that they even have to ask. Adding a brief “I hate that I have to do this” preamble to a permissive license like CC-0 might serve a similar purpose, while providing more legal certainty than WTFPL. (And of course such a preamble could also be used with a strong copyleft, like copyleft-next.)
  • Fair Use supplement: Fair use is the traditional safety valve for copyright, but it is hard to know if a particular use is “fair.” So a “license” could be written that, instead of formally licensing under specific terms, instead aims to provide more certainty about fair use. Some ways this could be done would include broadly defining the fair use categories, explicitly accepting transformative use as a factor in the fair use analysis, or asking courts to interpret ambiguity in favor of the recipient instead of the author. It is also possible to imagine this as a supplement to the existing fair use clauses in modern licenses (CC-BY 3.0 Sec. 2, GPL v3 Sec. 2, MPL 2 Sec 2.6), laying out a strong vision of fair use to help guide and protect anyone relying on those clauses.
  • “What People Actually Think Copyright Is” license: most Americans2 think that personal use of copyrighted materials is legal under modern copyright law. So a license that focused on personal use might work better than the more nebulous “non-commercial”. As a bonus, since commercial interests will clearly be unable to use the content, getting it “right for lawyers” may be less of a concern.

Careful readers will note that the last two options are unlikely to be OSI-open or FSF-free. For the purposes of this exercise, that’s OK- OSI, FSF, and CC’s iron-clad assumption that licensing is good is what I’d like to provoke people to think about here.3

Conclusion, and provocation

I don’t offer these license ideas as a comprehensive survey of what an anti-permission-culture license might look like, or even a good survey. Instead, take them as a provocation: are we – particularly authors and evaluators of open licenses – part of the problem of the permission culture? Are we actually responding to the people who use our licenses, if one of their desires is to push back against the need to license? Can we be more creative about expressing distaste for the permission culture, without gumming up the works of sharing too much? I think that, if we think critically, we can, and perhaps we should.

  1. Another motive, that I won’t go into here but which also deserves serious discussion for license authors, is simply that the values encapsulated in our licenses are taken for granted by younger developers who have always had a plentiful, healthy free-as-in-beer code commons. Both the permissive and copyleft communities would do well to argue the case for their licenses (not just their overall philosophies) better than they currently do. []
  2. per Jessica Littman, Digital Copyright, p. 117 []
  3. If it wasn’t already obvious, this post is obviously not made with my OSI hat on – OSI continues to firmly endorse the Open Source Definition. []

56 thoughts on “Pushing back against licensing and the permission culture”

  1. […] It is easy to assume that the pushback against licenses (“post-open source”) is because licensing is confusing/time-consuming and people are lazy/busy. While I’m sure these are the primary reasons, I think that, for some people, the pushback against licenses often reflects a belief that “no copyright should mean no permission needed”. In other words, those people choose not to use a license because, on some level, they reject the permission culture and want to go back to the pre-1976 defaults. In this case, publishing without a license is in some way a political statement  – “not every use should need permission”.1 […]

  2. Interesting that you say FSF holds an “iron-clad assumption that licensing is good”: I always saw it the other way around. They find copyright laws completely out of sorts, but in the legal system (and copyright law) such as it is, they are going to spend time to define a license that will turn it on its head.

    Basically, GPL is what it is to influence the default for a majority of projects. See eg. http://www.gnu.org/philosophy/pragmatic.html and http://www.gnu.org/licenses/why-not-lgpl.html (I am sure you know all about these pages, I just thought I’d put your point in perspective with them).

    Btw, what would it take to explicitely put something you create into public domain these days: is it not sufficient to say “All code here is put into public domain” to restore the default of pre-1976 copyright law?

  3. I think most of this analysis ignores that there are entities that are seeking to exploit Free Software and make more proprietary stuff. The post-open-source culture is that of “Open Source Almost Everything”, a philosophy promulgated by GitHub’s co-founder. It’s amazing to see how quickly people revert to proprietarization the moment they find an easy way to get away with it.

  4. Licenses (especially copyleft ones) are often offered as examples of how we as copyright holders want copyright laws to work by default. To me, copyright licenses and disclaimers (a.k.a. abandonments or public domain dedications) in free software, free culture, and open source are something like a form of civil disobedience – we work within the existing legal system while simultaneously expressing our distaste for it. (After all, unless we offer licenses or disclaim exclusive rights, our works are part of the permission culture under current laws, whether we like it or not.)

    Either way, automatic copyright does not necessarily yield a permission culture. The former can stand without the latter, given sufficient legislative reform (or commonly practiced licensing) in the way of non-exclusive rights.

    Finally, I think your first endnote is an accurate insight. Younger developers (like myself) are spoiled by a great wealth of free/libre/open-source software. In contrast to the situation decades ago, the use of freely-licensed software is a viable option in just about all areas. The values and ideals embodied by carefully-crafted copyright licenses may seem obvious and archaic (and therefore unnecessary) to some, as software freedom and licensing don’t quite face the same challenges they once did. It indeed seems prudent to remind developers why licenses (and general legal care) are necessary and even good.

  5. Speaking as someone whose (modest) software projects on github are license-free for exactly the reason of rejecting this “permission culture”, I thought I’d chime in. The very notion that someone would feel the need to ask my permission to use that code is bizarre. If I didn’t want people to use it (and I can’t imagine any reason why I would not) I wouldn’t have put it in a public git repository in the first place. Though I would go further than “not every use should need permission” to “NO use should need permssion”. I cannot think of even a single reason why it should.

    In fact, I’ll go further and say “WTFPL + preamble” is not a solution. It continues to implicitly buy into the nonsense that authors have the right to control their work once it is in other hands, and that this supposed right is something which must be explicitly waived. Both of those are concepts that should be rejected at the source.

  6. Wouldn’t releasing code in the public domain be the epitome of POSS? No licensing issues, do what you want.

  7. Thanks Luis for posting this, that was very thought-feeding. I’ve been doing FOSS for a long time and never even thought about the idea that non-licensing would be a legitimate thing to do. But it actually makes sense!

  8. Most importantly it should be short, very short. If it can be crammed into few enough words to fit in a tweet or less then that would be good.

  9. I thought to highlight the Unlicense [http://unlicense.org]. Like the WTFPL it does carry the political preamble. But unlike the WTFPL, it does not carry a copyright claim. Also, it has a warranty/liability clause. I find it more professional.

  10. Go ahead, just commit to GitHub. But don’t be surprised when distributions like Debian won’t touch it with a pitchfork.

  11. There is no such thing as the Public Domain since the Berne Convention, which most countries have agreed to.

    One interesting example to look at would be Sharia law, which actually speaks of copyright, and the conventions in Arabian countries, where there is an interesting interpretation of property and copyright. Another interesting example is of course copyright history of America before it agreed to the Berne Convention.

    If you are protesting permission culture by not licensing your code, you are as it is ironically accepting and supporting permission culture, because copyright is the default in accord with the Berne Convention, hence the need for free software licenses.

  12. Something else to consider is that an author may release original content under more than one license. I suppose they may also release under a license, and then with none at all.

  13. I think you’ve actually got it backwards. What I’ve noticed is that it’s the younger devs flocking to licensing. Us older guys are used to just tossing code out without restrictions. We were pushing code out on BBS and such back in the day when there was no concern of licensing. The licensing push of late has been an intrusion and obstruction in the pursuit of continued freedom in computing.

  14. “CC’s iron-clad assumption that licensing is good” is at odds with “license authors might want to consider creating options that enable people to express that opinion.”

    In lieu of copyright reform, a license is required. Johnny Appleseed who doesn’t license his code has pigeonholed his work under copyright.

    Lastly, i think POSS is possible for open source adherents, but “post freedom” doesn’t make sense for people who value freedom instead of openness.

  15. I don’t put an open source license on my code to protect MY interests. I put it there to protect YOUR interests. If I put code out there without a license, how do you know I won’t sue you? Why are you supposed to assume that me, a complete stranger, is a nice guy?

  16. […] brain cycles thinking about open source licensing terms, I can appreciate the sentiment behind the just-push-it-out-to-github-and-be-happy attitude.  But if you’re going to put your time into a creative effort (particularly in […]

  17. […] I like the emerging idea of "post open source software" or POSS – instead of niggling around with licenses (and the subsequent arguments with pro- and anti-Stallings camps), they just post it to github. This is nicely discussed in a post by attorney Luis Villa. […]

  18. Author says, “For some people, the pushback against licenses often reflects a belief that ‘no copyright should mean no permission needed’.”

    There’s nothing wrong with that belief. In fact, many years ago that was true in the U.S. But that is NOT true in the legal systems of practically any country. Anyone releasing software without a license statement creates a massive legal risk for anyone foolish enough to use it. Even if YOU don’t plan to attack your users, your heirs might. The statement could be trivial, and it doesn’t have to be in legalize; a license is simply “permission”. But the law in practically every country is that you have to have permission. You may not like that, but it’s still the law.

    If you want the law changed, then you have to change the law. Releasing materials to create legal time bombs for potential users is unfair to those users.

    I think it’d be reasonable to demand that copyright revert back to the older system of “you have to assert it to have it”… but that means you have work to change the law.

  19. I have always offered my photography and art free for educational use or for parody / entertainment — the *only* limitation I could see is strictly poaching / commercial such as when people claim actual authorship of an image they did not create.

    The only thing that irks me is that I’ve never made money off any of my work :/

  20. […] around OSS licensing, permissiveness etc. I loved Luis Villa's post on this a month or so back http://tieguy.org/blog/2013/01… – you know me – I've been a decade in IBM, and longer than that as part of OSS communities. I've […]

  21. I can give you another example, from film. The SlenderMan movie http://www.slendermanfilm.com/ is released with an invitation to share and copy it, but without an explicit licence. I asked why it hadn’t been released under CC, and they said it was a deliberate choice. Ironically the film has now received a copyright claim from the licensees of the person who claims to have originated the SlenderMan meme.

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