[License-discuss] AGPL "loopholes" (was: [License-review] Approval: Server Side Public License, Version 1 (SSPL v1))

Kyle Mitchell kyle at kemitchell.com
Sat Nov 10 04:44:55 UTC 2018

On 2018-11-09 13:11, Bradley M. Kuhn wrote:
> Kyle Mitchell wrote at 11:28 (PST) on Thursday:
> > There are many loopholes in AGPLv3.  I've taken to calling
> > two of them "API Loophole" and "Container Loophole".
> Calling these "loopholes" is just rhetoric.  The issues you mention haven't
> been tested in Court under derivative and combined works statues (if I'm
> wrong and you have cases to cite, please cite).

That's not rhetoric.  It's legal analysis.  Which is what we
do when there _aren't_ controlling cases directly on point.

There usually aren't, and there haven't been, for most of
public software licensing history.  In the twenty years
between GPLv1 and _Jacobsen_, did open licensing stand on
mere rhetoric?  Did we convince the courts to enforce our
terms, or predict that they would?

_Oracle_ is good for strong copyleft.  _Vernor_ was good for
strong copyleft.  _Artifex_, contract and copyright, was
good for strong copyleft.  I remain convinced that, overall,
the misuse cases have been good for strong copyleft.

Where are they, in strong copyleft licenses?

I won't hide here the criticisms of FSF drafting I've made
elsewhere.  From other points of view, FSF licenses have
been conservative to a fault, precisely in legal analysis.
It's not just about public courts of law.  At least in the
United States, it's about the private courts of law known as
settlement conferences, plus the company policies of
potential consumers.

Proprietary software developers haven't taken positions on
what copyright law's limits _should_ be, or restrained
themselves to points of reported, settled, blackletter law.
They don't contort their terms to accord with, or bend
around, theoretical frameworks for policy analysis.  They
don't row upstream of the current of expanding copyright
holder power.  Private clients don't award points for
purity, to offset points against interest.

Compare, e.g., OSD 3.0's "External Deployment" to AGPLv3
section 13.  Compare to RPL, which was based on proprietary
forms, in 2002.  Or SSPLv1 section 13.

I admire the extent to which FSF has brought legal
particulars squarely within its moral framework.  That kind
of consistency is all the more valuable for being rare.  It
appeals to me personally, as a legal particularist.  But it
should come as no surprise that many licensors after
strong-copyleft terms find the price of those broad,
self-imposed constraints frustrating.  Available law is just
a means to their ends, as is its proper place.  Insisting
otherwise, FSF copyleft has given proprietary developers an
ever weaker, dilute taste of their own medicine.

Open licenses spread like open programs.  They're reused,
and become popular, for all manner of diverse and unexpected
projects and purposes.  When comparing to what one _could_
write for those purposes to what FSF _will_ write, the
differences are "loopholes".  If "rhetoric" is the badge for
a view from one perspective, rather than another, all of
this is rhetoric, indeed.  But so are FSF's self-disciplines
and protestations.

Do you think cloud providers will whitelist SSPLv1, on
account of its section 13 being unenforceable?

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

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