Designers and Creative Commons: Learning Through Wikipedia Redesigns

tl;dr: Wikipedia redesigns mostly ignore attribution of Wikipedia authors, and none approach the problem creatively. This probably says as much or more about Creative Commons as it does about the designers.

disclaimer-y thing: so far, this is for fun, not work; haven’t discussed it at the office and have no particular plans to. Yes, I have a weird idea of fun.

A mild refresh from interfacesketch.com.

It is no longer surprising when a new day brings a new redesign of Wikipedia. After seeing one this weekend with no licensing information, I started going back through seventeen of them (most of the ones listed on-wiki) to see how (if at all) they dealt with licensing, attribution, and history. Here’s a summary of what I found.

Completely missing

Perhaps not surprisingly, many designers completely remove attribution (i.e., history) and licensing information in their designs. Seven of the seventeen redesigns I surveyed were in this camp. Some of them were in response to a particular, non-licensing-related challenge, so it may not be fair to lump them into this camp, but good designers still deal with real design constraints, and licensing is one of them.

History survives – sometimes

The history link is important, because it is how we honor the people who wrote the article, and comply with our attribution obligations. Five of the seventeen redesigns lacked any licensing information, but at least kept a history link.

Several of this group included some legal information, such as links to the privacy policy, or in one case, to the Wikimedia Foundation trademark page. This suggests that our current licensing information may be presented in a worse way than some of our other legal information, since it seems to be getting cut out even by designers who are tolerant of some of our other legalese?

Same old, same old

Four of the seventeen designs keep the same old legalese, though one fails to comply by making it impossible to get to the attribution (history) page. Nothing wrong with keeping the existing language, but it could reflect a sad conclusion that licensing information isn’t worth the attention of designers; or (more generously) that they don’t understand the meaning/utility of the language, so it just gets cargo-culted around. (Credit to Hamza Erdoglu , who was the only mockup designer who specifically went out of his way to show the page footer in one of his mockups.)

A winner, sort of!

Of the seventeen sites I looked at, exactly one did something different: Wikiwand. It is pretty minimal, but it is something. The one thing: as part of the redesign, it adds a big header/splash image to the page, and then adds a new credit specifically for the author of the header/splash image down at the bottom of the page with the standard licensing information. Arguably it isn’t that creative, just complying with their obligations from adding a new image, but it’s at least a sign that not everyone is asleep at the wheel.

Observations

This is surely not a large or representative sample, so all my observations from this exercise should be taken with a grain of salt. (They’re also speculative since I haven’t talked to the designers.) That said, some thoughts besides the ones above:

  • Virtually all of the designers who wrote about why they did the redesign mentioned our public-edit-nature as one of their motivators. Given that, I expected history to be more frequently/consistently addressed. Not clear whether this should be chalked up to designers not caring about attribution, or the attribution role of history being very unclear to anyone who isn’t an expect. I suspect the latter.
  • It was evident that some of these designers had spent a great deal of time thinking about the site, and yet were unaware of licensing/attribution. This suggests that people who spend less time with the site (i.e., 99.9% of readers) are going to be even more ignorant.
  • None of the designers felt attribution and licensing was even important enough to experiment on or mention in their writeups. As I said above, this is understandable but sort of sad, and I wonder how to change it.

Postscript, added next morning:

I think it’s important to stress that I didn’t link to the individual sites here, because I don’t want to call out particular designers or focus on their failures/oversights. The important (and as I said, sad) thing to me is that designers are, historically, a culture concerned with licensing and attribution. If we can’t interest them in applying their design talents to our problem, in the context of the world’s most famously collaborative project, we (lawyers and other Commoners) need to look hard at what we’re doing, and how we can educate and engage designers to be on our side.

I should also add that the WMF design team has been a real pleasure to work with on this problem, and I look forward to doing more of it. Some stuff still hasn’t made it off the drawing board, but they’re engaged and interested in this challenge. Here is one example.

Summarizing “hacker legal education” crisply and cleanly

James Grimmelman is a better writer than I am. I already knew this, but in this commentary on Biella Coleman’s (excellent) Coding Freedom, he captures something I have struggled to express for years in two crisp, clean sentences:

Hacker legal education, with its roots in programming, is strong on formal precision and textual exegesis. But it is notably light on legal realism: coping with the open texture of the law and sorting persuasive from ineffective arguments.

This distinction is worth keeping in mind, for both sides of the professional/amateur legal discussion, to understand the relative strengths and weaknesses of their training and experience.

(Note that James says this, and I quote it, with all due love and respect, since we were both programmers before we were lawyers.)

Reviewing the Manual of Style for Contract Drafting by Editing Twitter’s Patent Agreement

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Synopsis for lawyers

You should really buy the Manual of Style for Contract Drafting – it’ll make you a better drafter and editor. This post applies the book’s rules and guidelines to a publicly-available legal agreement (Twitter’s Innovator’s Patent Agreement) to explain what the book is and why it is valuable.

tl;dr, for programmers

Contract writers have no equivalent of RFC 2119, mostly because contract drafting is hard. MSCD is a good try – defining terms and demanding consistency, just like the compiler lawyers lack. This post is a rewrite and fleshing out of the github edit history.

    <dl id="attachment_2631" class="wp-caption aligncenter" style="max-width:508px">
        <dt><a href="http://i0.wp.com/commons.wikimedia.org/wiki/File:Sales_contract_Shuruppak_Louvre_AO3760.jpg?ssl=1"><img src="http://i2.wp.com/tieguy.org/blog/wp-content/uploads/2013/10/Sales_contract_Shuruppak_Louvre.jpg?resize=508%2C480" alt="A contract for the selling of a field and a house." class="size-full wp-image-2631" /></a></dt>
        <dd>A contract for the selling of a field and a house, from <a href="https://en.wikipedia.org/wiki/Shuruppak">the Sumerian city of Shurrupak</a>, now in the Louvre.</dd>
    </dl><br />

Continue reading “Reviewing the Manual of Style for Contract Drafting by Editing Twitter’s Patent Agreement”

Thoughts on the CC Summit

I was lucky enough to attend the Creative Commons Global Summit in Buenos Aires last week, including the pre-conference session on copyright reform.

Oliver’s Tattoo (cropped), by Oliver Keyes, used under CC BY-SA

Like Wikimania, there is simply too much here to summarize in coherent chunks, so here are my motes and thoughts during my return flight:

  • Maira Sutton of EFF summed up my strongest feeling about the event (and Wikimania, and many others) quite perfectly: “Getting a chance to finally meet those people you’ve admired from the Internet… Yea I hope that never gets old.” I hope I always remember that we are parts of a movement that draws much of its strength from being human – from being, simply, good to each other, and enjoying that. I realize sometimes being a lawyer gets in the way of that, but hopefully not too often ;)
  • At the copyright reform mini-conference, it was super-interesting to see the mix of countries playing offense and defense on copyright reform. Reform efforts discussed appeared to be patchwork; i.e., folks asking for one thing in one country, another in others, varying a great deal based on local circumstances. (The one “global” proposed solution was from American University/InfoJustice, who have worked with a team of lawyers from around the world to create a sort of global fair use/fair dealing exception called flexible use. An interesting idea.) Judging from my conversations at Wikimania and with Wikipedians at CC Summit, this is an area of great interest to Wikipedians, and possibly one where we could have a great impact as an example of the benefits of peer production.
  • Conversation around the revised CC 4.0 license drafts was mostly quite positive. The primary expressed concerns were about fragmentation and cross-jurisdictional compatibility. I understand these concerns better now, having engaged in several good discussions about them with folks at the conference. That said, I came away only confirmed on my core position on CC’s license drafting: when in doubt, CC should always err on the side of creating a global license and enabling low-complexity sharing.
  • This is not to say CC should rush things for 4.0, or be legally imprecise – just that they must be careful not to accidentally overlook the negative costs or overlawyering. Unfortunately, creating something knowingly imperfect is a profoundly difficult position for a lawyer to be in; something we’re trained to avoid at almost all costs. It is easiest to be in this position when there is an active negotiator on the other side, since they can actively persuade you about the compromise – instead of arguing against yourself. Public license drafting is perhaps unusually susceptible to causing this problem in lawyers; I do not envy the 4.0 drafters their difficult task.
  • There was a fair bit of (correct) complaining about the definition about Effective Technological Measures in the license – the most lawyerly piece of writing in 3.0 and the current drafts. Unfortunately, this is inevitable – to create a new, independent definition, instead of referring to the statute, is to risk protecting too much or too little, neither of which would be the correct outcome for CC. It would also make the license much longer than it currently is. I believe that the right solution is to drop the definition, and instead have a parallel distribution clause, where the important definition is easy: the recipient must be able to obtain at least one copy in which they are not prohibited from exercising the rights already defined. ETM then becomes much less important to define precisely.
  • Interesting to see that the distribution of licenses is mostly getting more free over time. After seeing the focuses of the various Creative Commons affiliates, I think this is probably not coincidence – they all seem quite dedicated to educating governments, OERs, and others about transaction costs associated with less free licenses, and many report good results.
  • That said, licensing data, even under free licenses, is going to be tricky – the trend there appears to be (at least) attribution, not disclaimer of rights. Attribution will be complicated for database integration; both from an engineering and a legal perspective.
  • Combined with the push towards government/institutional publication of data, there were a lot of talks and discussions about what to do with information that are difficult or inappropriate to edit, like scientific articles or historical documents. Lots of people think there is a lot of value to be added by tools that allow collaborative annotation and discussion, even on documents that can’t/shouldn’t be collaboratively edited. I think this could be a Wiki strength, if we built (or borrowed) the right tools, and I really hope we start on that soon.
  • Great energy in general from the affiliates around two areas: copyright reform, and encouragement of government and institutions to use CC licenses. I think these issues, and not the licenses themselves, will really be what drives the affiliates in the next 3-5 years. Remains to be seen where exactly CC HQ will fit into these issues – they are building a great team around OER, and announced support for copyright reform, but these are hard issues to lead from the center on, because they often need such specific, local knowledge.
  • Met lots of great people; too many to list here, but particularly great conversations with Prodi, Rafael, and folks from PLOS (who I think Wiki should partner with more). And of course catching up with a lot of old friends as well. In particular, perhaps my conversation with Kragen will spur me to finish my long-incomplete essay on Sen and Stallman.
  • I also had a particularly great conversation with my oldest friend, Dan, about what a modern-day attribution looks like. Now that we’re no longer limited to static textual lists of authors, as we have done since the dawn of the book, what can we do? How do we scale to mega-collaborative documents (like the Harry Potter page) that have hundreds or thousands of authors? How do we make it more two-way, so that there is not just formal attribution but genuine appreciation flowing both ways (without, of course, creating new frictions)? The “thanks” feature we’ve added to Wikipedia seems one small way to do this; Dan spoke also of how retweets simultaneously attribute and thank. But both of those are in walled silos- how can we take them outside of that?
  • Saw a great talk on “Copyright Exceptions in the Arab World” pan-Arab survey; really drove home how fragmented copyright statutes can be globally. (Translation, in particular, seemed an important and powerful exception, though my favorite exception was for military bands.) Of course, the practical impact of this is nearly nil – many of the organizations that are in charge of administering these literally don’t know they exist, and of course most of the people using the copyrights in the culture not only don’t know, they don’t care.
  • Beatriz Busaniche gave a nice talk; perhaps the most important single thing to me: a reminder that we should remember that even today most cultural communication takes place outside of (intentional) copyright.
  • Lessig is still Lessig; a powerful, clear, lucid speaker. We need more like him. In that vein, and after a late-night discussion about this exact topic, I remind speakers that before their next conference they should read Presentation Zen and Slideology.
  • Database rights session was interesting and informative, but perhaps did not ultimately move the ball forward very much. I fear that the situation is too complex, and the underlying legal concepts still too immature, for the big “add database to share-alike” step that CC is now committed to taking with 4.0. My initial impression (still subject to more research) is that Wikipedia’s factual and jurisdictional situation will avoid problems for us, but it may be worse for others.
  • After seeing all the energy from affiliates, as well as seeing it in Wikimedia’s community, I’m really curious about how innovation tends to happen in global NGOs like Red Cross or Greenpeace. Do national-level organizations discover issues and bring them to the center? Or is it primarily the center spotting issues (and solutions) and spurring the affiliates onward? Some mix? Obviously early CC was the former (Lessig personifies leadership from a center outwards) but the current CC seems to lean towards the latter. (This isn’t necessarily a bad place to be – it can simply reflect, as I think it does here, that the local affiliates are more optimistic and creative because they are closer to conditions on the ground.)
  • Watched two Baz Luhrmann films on my flight back, a fun reminder of the power of remix. I know most of my film friends think he’s awful, and admittedly for the first time I realized that Clair Danes is … not very good … in Romeo and Juliet. But in Luhrmann there is a zest, a gleeful chopping, mixing, and recreating of our culture. And I love that; I hope CC can help enable that for the next generation of Luhrmanns.

At the Wikimedia Foundation (for, um, three months now)

Since it was founded 12 years ago this week, Wikipedia has become an indispensable part of the world’s information infrastructure. It’s a kind of public utility: You turn on the faucet and water comes out; you do an Internet search and Wikipedia answers your question. People don’t think much about who creates it, but you should. We do it for you, with love.

Wikimedia Foundation Executive Director Sue Gardner, from http://blog.wikimedia.org/2013/01/14/wikipedia-the-peoples-encyclopedia/

As Sue says, the people who create Wikipedia are terrific. I’m lucky enough to say that I’ve just wrapped up my first three months as their lawyer – as Deputy General Counsel at the Wikimedia Foundation. Consider this the personal announcement I should have made three months ago :)

Wikimania 2012 Group Photograph, by Helpameout, under CC-BY-SA 3.0.

Greenberg Traurig was terrific for me: Heather has a wealth of knowledge and experience about how to do deals (both open source and otherwise), and through her, I did a lot of interesting work for interesting clients. Giving up that diversity and experience was the hardest part of leaving private practice.

Based on the evidence of the first three months, though, I made a great choice – I’ve replaced diversity of clients with a vast diversity of work; replaced one experienced, thoughtful boss with one of equal skill but different background (so I’m learning new things); and replaced the resources (and distance) of a vast firm with a small but tight and energized team. All of these have been wins. And of course working on behalf of this movement is a great privilege, and (so far) a pleasure. (With no offense to GT, pleasure is rarely part of the package at a large firm.)

The new scope of the work is perhaps the biggest change. Where I previously focused primarily on technology licensing, I’m now an “internet lawyer” in the broadest sense of the word: I, my (great) team, and our various strong outside counsel work on topics from employment contracts, to privacy policies, to headline-grabbing speech issues, to patent/trademark/copyright questions – it is all over the place. This is both challenging, and great fun – I couldn’t ask for a better place to be at this point in my life. (And of course, being always on the side of the community is great too – though I did more of that at Greenberg than many people would assume.)

I don’t expect that this move will have a negative impact on my other work in the broader open source community. If anything, not focusing on licensing all day at work has given me more energy to work on OSI-related things when I get home, and I have more flexibility to travel and speak with and for various communities too. (I’m having great fun being on the mailing lists of literally every known open source license revision community, for example. :)

If you’d like to join us (as we work to get the next 1/2 billion users a month), there are a lot of opportunities open right  now, including one working for me on my team, and some doing interesting work at the overlap between community, tech, and product management. Come on over – you won’t regret it :)

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.

“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. []

Licensing confusion is great! (for lawyers)

I want to heartily unendorse Simon Phipps’ Infoworld article about Github and licensing. Simon’s article makes it sound like no one benefits from sloppy licensing practices, and that is simply not true. Specifically, lawyers benefit! I regularly get calls from clients saying “I have no idea if I’m allowed to use <project X>, because it is on github but doesn’t have a license.” When that happens, instead of money going to developers where it could actually build something productive, instead, I get to spend my time and the client’s money fixing a problem that the original author could have easily avoided by slapping an Apache license on the thing in the first place – or that github could have avoided by adding default terms.

So, support your local open source lawyer today – publish source code without a license!1

  1. Tongue firmly in cheek, in case that isn’t obvious. Seriously, lawyers are the only ones who benefit from this situation, except for that handful of seconds it took you to “git add LICENSE”. Always license your code, kids! []

Thanking Contributors by Printing the MPL

As part of a general drive to get rid of stuff, I’ve recently become increasingly willing to part with my old books. This has been a painful process – books have many happy memories for me – but I think also a good and focusing one. As part of my emotional reaction to this, I’ve become increasingly interested in making beautiful, printed texts – things that stand up better to the test of time than the paperbacks I’ve been thinning out.

In 2010, as part of this process, I bought Typography for Lawyers, and incorporated some of what I learned from that into the HTML version of MPL 2.0. In 2011, as I was putting the finishing touches on the final draft of the MPL,  I attended the holiday fair at the San Francisco Center for the Book (neat Flickr stream), and ran across some work from Painted Tongue Press– beautiful broadside printings of poetry and wedding vows.

This gave me the idea to thank the most involved contributors to the MPL with a hand-made, printed copy of the text of the license.

The wonderful Kim Vanderheiden, of Painted Tongue, worked with me over the course of several months to plan this process, and then she and her team put them together. First, we designed the layout, not just of the text, but of the relatively unusual accordion-fold binding, which allowed the final product to be displayed like an A-Frame or by hanging the entire (very long!) thing from a wall. Then we picked paper for the text, and cloth and ribbon for the bindings (the ribbon symbolising both the fact that these are gifts and traditional bindings for legal documents). Kim’s team then hand printed them on their presses, and Kim used watercolors to paint the colored highlights (including the yellow highlighting that replaces the ALL CAPS text). Finally, they were bound.

The end result has been fifteen copies of beautiful, tangible, printed words, which I am now in the slow process of distributing to various contributors. I hope that this token of the maintainers’ appreciation for their assistance (in a variety of ways) is appreciated.

The thanks and colophon is as follows:

Thank You!

This revision of the MPL would not have happened without your  help. Please accept this hand-crafted printing of the license as a token of our appreciation, and a reflection of the effort and care you put into your contributions to the license.

The MPL Module Owners

Mitchell Baker
Harvey Anderson
Gervase Markham
Heather Meeker
Luis Villa

-o-

Colophon

The type was set in Equity by Matthew Butterick (typo.la/equity – used with permission of the typographer) and Droid Sans Mono by Google (droidfonts.com – used under the Apache 2.0 license). The book is printed on Somerset Velvet Radiant White and covered in Duo Cloth Birch.

Design, printing, binding, and painting were done with care by the excellent team at Painted Tongue Press, Oakland, California (paintedtonguepress.com).

This edition of MPL 2.0 was printed in August 2012 to celebrate the publication of, and thank contributors to, MPL 2.0. You are holding copy # __
of 15.

AGPL is usually about free riding, not fragmentation or adoption

When I was at Monktoberfest, our esteemed host reminded me that I’d disagreed with his article “AGPL: Solution In Search of a Problem”, and nudged me to elaborate on the point. Here goes nothing. TL;DR: for most developers, AGPL is really about preventing free riding, not fragmentation – so as long as there is concern about free riding people will use AGPL.

Stephen makes a few key points in his article (mistakes in paraphrasing mine):

  1. AGPL’s alleged benefit (the “problem that doesn’t exist”) is the prevention of fragmentation.
  2. Permissive licenses are on the rise, so using a super-strong copyleft is counter-productive when you’re looking to attract developers.
  3. By being so aggressive, it courts FUD about all open source licenses, which could be counter-productive to open source generally.

Let me take these in order.

Urban Fragments, by APM Alex, used under CC-BY 2.0

Issue #1 is based on a misapprehension: I don’t think it’s correct to think of the purpose of any copyleft (Affero or otherwise) as preventing fragmentation. GPL has never prevented fragmentation – there have been forks of many GPL projects (and complaints about same) for about as long as GPL has been around. (*cough*emacs*cough*)

Critically for many developers, what GPL does attempt to prevent is free riding – taking a benefit without contributing back. GPL means any valuable improvements in forks (whether or not incompatible) are available to integrate back under the same license terms. This means you can’t “cheat” the primary developers by building your business around proprietary forks of “their” work – they can always reincorporate the valuable bits if they want to.

The frequent use of AGPL in commercial dual-licenses also suggests that free riding is the problem being attacked by strong copylefts, not fragmentation. The logic is simple: AGPL means users usually pay some cost (i.e., not free ride) to participate: either by buying a commercial license, or by sharing code. In contrast, if the goal was to limit fragmentation, the license would say something like “your patches have to be accepted back into the core, or else you have to write a check”, or even better “you have to pass a compatibility test, or else you have to write a check.”

It is important to note that “cheat” is in quotes above. In many cases, people have realized that maintaining proprietary forks isn’t actually cheating the primary developers. For example, in many cases, we’ve realized that forking primarily cheats the forkers. For example, many users of the Linux kernel have learned the hard way that running an old fork + a small proprietary module leads to very high maintenance costs. In other cases, the permissive license actually helps fund the primary developers by enabling an open-core model (even if those aren’t trendy at the moment). In yet other cases, the primary author is making their money from other tools or services and so doesn’t care if anyone free-rides on their open source components. 37 Signals and Rails are probably the poster child for this. And of course, much of the industry has simply gotten more mature and less possessive about their software – realizing that whether or not they are “cheated” is usually a silly concern.

This leads to my response to issue #2: in my opinion, the recent increase in permissive licenses is driven as much by the decreasing concern about “cheating” developers (aka free riding) as it is by increased interest in adoption. In that light, the use case for AGPL is straightforward: AGPL makes sense if you’ve got a good reason to be concerned about free riding (say, if your revenue is directly tied to the tool you’re choosing a license for). This is a decreasing number of people, for the reasons described above, but it’s still far from zero. For those folks, increasing adoption may not actually be useful – it’s a case of “we lose money on every sale, but we’ll make it up on volume”.

On Issue #3 (increased FUD risk): this certainly seems like a possibility, but in my practice, I’ve seen only a single instance of confusion caused by AGPL spilling onto other licenses, and it was quick and easy to clear up. There is certainly plenty of worry about AGPL, but the worriers are quite clear that this stems from requirements other licenses don’t share. Maybe there will be more confusion if/when someone drafts another Affero-style license, but it doesn’t appear to me to currently be an issue. (By way of contrast, the confusion about the various patent clauses, and who licenses what to whom when, is a recurring theme of discussion with any company that is both filing patents and doing open source.)

Finally it’s important to note that both my post and Steve’s are about the costs, benefits, and freedoms accorded to developers. As I’ve mentioned before, when thinking about what “problem” is being solved by a license, it’s always important to remember that for some people (particularly the authors of the AGPL) the analysis begins and ends with problems for users. A full analysis of that issue has to wait for another day (it may be reminiscent of bike helmets) but suffice to say that neither of us are attempting it here, and we should always be cognizant of that.

Speaking at Practicing Law Institute’s Open Source/Free Software 2013

I’m pleased to announce that I’ll be speaking at the Practicing Law Institute’s “Open Source and Free Software 2013: Benefits, Risks and Challenges” continuing education for lawyers in San Francisco in December. I did this last year (on a panel with the excellent Mark Radcliffe) and it was a lot of fun.

Topics will include:

  •  Setting the Stage: An Introduction to “FOSS” and Copyright Concepts
  •  Open Source Software and its Licenses
  • License Enforcement and Avoiding Litigation
  • Effective Business Practices in the Open Source Cloud
  • Ethics: Conflict and Cooperation in Open Source Projects
  • Royalty-Free Patents and Open Standards in Open Source Software
  • Hot Topics: Critical Issues and Important Cases in FOSS

I’ll be on a panel on the last topic (“Hot Topics”) with Larry Rosen and Karen Copenhaver. The rest of the speaker lineup is excellent as well:

  • Daniel Berlin – Google
  • Adam Cohn – Cisco
  • Eileen Evans – HP
  • Harrison “Buzz” Frahn – Simpson Thatcher
  • Gabe Holloway – Leonard, Street and Deinard
  • Mario Madden – Microsoft
  • Gervase Markham – Mozilla
  • Gwyn Murray – Matau Legal Group
  • Marc Visnick – Johnson-Laird

I’m afraid it isn’t cheap, but it’s a full day of CLE, and (based on my experience last year) a good way for lawyers not familiar with open source to get up to speed quickly. (It’s also going to be streamed for those who aren’t feeling like pressing the flesh.)