[License-discuss] upgrade clauses & mandatory relicensing (was Re: Approval: Server Side Public License, Version 2 (SSPL v2))

Kyle Mitchell kyle at kemitchell.com
Mon Dec 3 05:40:00 UTC 2018

On 2018-11-22 09:11, Bradley M. Kuhn wrote:
> Meanwhile, Kyle Mitchell wrote:
> >> Software developers, including companies that develop software, have the
> >> right to license their own, original work on terms of their choice.
> The "right to choose the license" is not a right, it's a privilege of power,
> granted by a legal system that not everyone in the FLOSS community agrees
> with.  I try not to link to external writings of my own in my posts here, but
> I'll make an exception for this one (which is the only essay I ever co-wrote
> with RMS) as it so on-point to what you said:
> https://www.gnu.org/philosophy/freedom-or-power.en.html
> (It was originally published in 2001 as a response to Tim O'Reilly's article
> making the same argument you made above.)
> In short, the "right for copyright holders to pick the license they want" is
> not an inalienable right, nor should it be.

The article you linked is one of my favorites on FSF.org.
Power dynamics are a very useful rubric for thinking about
software licensing.

If I have one criticism of that piece---I've actually
started a blog post right on point, but here it comes in
brief---it's that it stops short.  Producer-user isn't the
only relevant power imbalance.  There are also power
imbalances between producers.

SSPL responds to the latter kind of imbalance.  Mongo wants
a license that's functionally permissive for users building
apps and otherwise integrating.  It wants to redress _that_
power imbalance.  But Mongo also wants a license that
applies strong copyleft, selectively, to protect similar
businesses from the overwhelming power of AWS and other
cloud services providers.  Providers that won't meet Mongo's
generosity in published source and granted permission.

To yield licensing power consistently and entirely would be
to submit to the power of competitors.  Specifically,
competitors in the proprietary software-service business.
Call it the "tyranny of property-lessness".  Call it
whatever you want.  The power imbalance here is between
developers that want to be as open as possible, on one hand,
and developers that open their work selectively, to a fault,
on the other.

> Kyle quoted Eliot saying:
> >> Eliot mentioned very early on:
> >>>  If it is not what all communities want, then is it enough that some do?
> Right now, the only people I've found who are in the "community that wants
> the SS Public License" are you personally and MongoDB.  One person and one
> company don't make a community.  Users of MongoDB have widely been alarmed by
> this change and critical of it.  You have argued that it's MongoDB's
> prerogative as copyright holder to change the license capriciously if they'd
> like, and it's true as far as it goes, but I don't think that's a salient
> point to OSI's analysis of the license.

Software communities don't exist for license-review.  If OSI
analysis entails a minimum proponent attendance requirement,
that should be made clear, so those in favor can know they
ought to invite others to make a showing.  More importantly,
so those others can feel comfortable weighing in without
expectation that they'll participate, on an ongoing basis,
in specialized assessment of the legal text.

OSI might have chosen, as a matter of policy, to require,
say, evidence of use of a license by 20 independent
licensors prior to submission for approval.  That would
greatly reduce the number of submissions.  But also preclude
early feedback on terms.

I can't really say whether OSI wants to see license
submissions early on, and amended as part of the process, or
not.  Another point of process for clarification.

Kyle Mitchell, attorney // Oakland // (510) 712 - 0933

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