[License-discuss] Private modification

Moritz Maxeiner mm at ucw.sh
Fri Aug 9 08:46:55 UTC 2019

On Friday, 9 August 2019 05:02:27 CEST Russell McOrmond wrote:
> On Thu, Aug 8, 2019 at 9:50 PM Moritz Maxeiner <mm at ucw.sh> wrote:
> > I'm not sure if it can be considered a good policy argument, but my point
> > of
> > view is that it's - at the very least - ethically questionable to take
> > source
> > code that the author clearly intended to be libre, improve upon it, and
> > then
> > keep the improvements from the rest of the world; or the sinister variant
> > of
> > it: Make it worse and pretend you didn't. As an example of the latter
> > consider
> > the following (contrived, but imho not implausible scenario):
> Your first example is a question of method of payment, with source code for
> undistributed/communicated software being used as a substitute for
> copyright royalties.  I still hear arguments from people saying that FLOSS
> is a form of dumping which lowers what royalty fees can be charged, and
> thus should be declared illegal.  I don't see much of a difference between
> the arguments in favour of demanding source code for undistributed software
> and a suggestion that royalty-free software be declared anti-competitive.

You can certainly interpret it as a question of payment, but imho that's a 
matter of perspective and doesn't (necessarily) change its validity.
Also, from my perspective there's a huge difference between requiring source 
code for software derivative of open source software and suggesting that 
royalty-free software be declared anti-competitive; whether or not there's a 
difference between the arguments for each is not important to me, personally, 
as long as the end result is sufficiently different - which it is imho). 

> Disallowing software authors the ability to control private activities has
> a public policy benefit to protecting the rights and interests of software
> users that goes far beyond the public value of the otherwise private
> software modifications.

With the exception of not allowing such software users to keep their 
modifications hidden from the public, I agree with that.

> I suspect our evaluation of the ethics of the two
> scenarios are quite opposite, as I consider allowing software authors to
> control private activities including private modifications to be unethical.

To clarify my position further: It's not that I consider restriction on such 
users to be inherently ethical: It's just that in the specific instance of one 
unethical thing (restricting user's right to keeping private modifications 
private) vs another unethical thing (subverting the author's intent of the 
open source nature of their software) I consider choosing the first option to 
be less unethical.

> Whether a company can or cannot monitor the activities of employees using
> company equipment is a matter of government regulation of employers, not
> something that belongs in a software license.

That's true but imho disregards the nature of my argument: It's not about them 
being allowed to perform such monitoring in the first place, it's about 
preventing them from pointing to the original and fooling users by stating 
"there's the source code" while keeping their modifications hidden, 
effectively pretending their modified version is the original one without it 
being detectable.

> Once we allow software
> licenses to attempt to preempt the public policy process, we are suggesting
> that software authors should be writing the laws rather than legislators (
> ...  http://codev2.cc/ ).

Software licenses can inherently only work within the existing legal framework 
(which is generally established through the public policy process), so I 
reject this argument; they absolutely need to address concerns not currently 
covered by the law.

> Some of these authors may be ethical, and some
> unethical, and both extremes will have access to the same legal tools set
> by precedent.

Considering the de facto status quo already sees unethical actors making use 
of such legal tools (such as [1][2]) I'd say precedent has already occurred 
for one of the extremes.

> As someone who has spent months as an observer and witness in parliamentary
> committees studying bills, and being the only representative of the FLOSS
> community attending, I'm always frustrated at how software developers get
> so excited about implementing public policy in software license agreements
> and yet don't bother participating in the actual legislative process.
> Attempting to take shortcuts will always have consequences.

Consider that that's not how the process works for everyone and that there may 
be good reasons as to not wanting to go further than casting one's vote.

[1] https://www.youtube.com/watch?v=HUx0gReDFkE
[2] https://www.deere.com/privacy_and_data/docs/agreement_pdfs/english/

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