[License-discuss] What should fit in a FOSS license?

[Chris Travers]

I think I agree with your analysis on the whole.  Mostly replying to
add a few points.
On Mon, Mar 9, 2020 at 8:35 PM Christopher Lemmer Webber
<cwebber at dustycloud.org> wrote:
>
> What terms belong in a free and open source software license?

My humble viewpoint:

FOSS licenses create economic commons which must be open to all.  Full
stop.  If there is any universal human rights at all, that has to
include full participation in economic production. That's also why I
prefer BSD licenses (because my view of freedom centers around work
ownership, not enumerate freedoms and protections by institutions).
Understanding this as a right is why the European Charter of
Fundamental Rights forbids employment discrimination on the basis of
political opinion.

If we understand human beings to be economic producers and creative
beings then creative commons are important on a basic human level.

>  There has
> been a lot of debate about this lately, especially as many of us are
> interested in expanding the role we see that we play in terms of user
> freedom issues.  I am amongst those people that believe that FOSS is a
> movement thats importance is best understood not on its own, but on the
> effects that it (or the lack of it) has on society.  A couple of years
> ago, a friend and I recorded an episode about viewing software freedom
> within the realm of human rights:
>
>   https://librelounge.org/episodes/episode-4-the-universal-declaration-of-human-rights-and-free-software.html
>
> I still believe that, and strongly.
>
> I also believe there are other critical issues that FOSS has a role to
> play in: diversity issues (both within our own movement and empowering
> people in their everyday lives) are one, environmental issues (the
> intersection of our movement with the right-to-repair movement is a good
> example) are another.  I also agree that the trend towards "cloud
> computing" companies which can more or less entrap users in their
> services is a major concern, as are privacy concerns.

Sure.  No disagreement on diversity or environmental issues.  And I
think that's good insight.  But I don't think that you can solve
diversity issues by saying who can fully participate in the commons.
Diversity issues are solved in ways that fall on project governance
and these include:

1.  Valuing a wider range of types of contributions rather than mere
technical code.  Meritocracy is not the same as technocracy and often
we confuse these by focusing only on code.  And

2.  Reaching out to more geographical regions and encouraging more
people to collaborate.  From common cause we can build common culture,
not the other way around.

But these are things leadership needs to do.  And they both involve
expanding rather than contracting who is encouraged to contribute.
>
> Given all the above, what should we do?  What kinds of terms belong in
> FOSS licenses, especially given all our goals above?

I don't think you can have ideological litmus tests and have that
work.  And there is nothing wrong with a code of conduct that reduces
to something like "we treat each other as human beings and valued
colleagues regardless of political, cultural or other differences.
Unwanted sexual advances and harassment on any basis whatsoever
(including but not limited to political opinions, cultural
differences, social identity, or other factors) is forbidden."  But
that's about community participation, not about software use,
modification, etc.

> First, I would like to say that I think that many people in the FOSS
> world, for good reason, spend a lot of time thinking about licenses.
> This is good, and impressive; few other communities have as much legal
> literacy distributed even amongst their non-lawyer population as ours.
> And there's no doubt that FOSS licenses play a critical role... let's
> acknowledge from the outset that a conventionally proprietary license
> has a damning effect on the agency of users.

I think that yes licenses play an important part in that they
establish an economic life of the community.  We build an economic
common good together, one which we all share in.  As part of a
community which should nourish us all.
>
> However, I also believe that user freedom can only be achieved via a
> multi-layered approach.  We cannot provide privacy by merely adding
> privacy-requirements terms to a license, for instance; encryption is key
> to our success.  I am also a supporter of code of conducts and believe
> they are important/effective (I know not everyone does; I don't care for
> this to be a CoC debate, thanks), but I believe that they've also been
> very effective and successful checked in as CODE-OF-CONDUCT.txt
> *alongside* the traditional COPYING.txt/LICENSE.txt.  This is a good
> example of a multi-layered approach working, in my view.

That's not how the code of conduct should be managed.  The code of
conduct should apply to mailing lists, conferences, etc and be
available when people sign up for these.  It is not about the code
itself but about participation in company events.
>
> So acknowledging that, which problems should we try to solve at which
> layers?  Or, more importantly, which problems should we try to solve in
> FOSS licenses?
>
> Here is my answer: the role of FOSS licenses is to undo the damage that
> copyright, patents, and related intellectual-restriction laws have done
> when applied to software.  That is what should be in the scope of our
> *licenses*.  There are other problems we need to solve too if we truly
> care about user freedom and human rights, but for those we will need to
> take a multi-layered approach.
>
> To understand why this is, let's rewind time.  What is the "original
> sin" that lead to the rise proprietary software, and thus the need to
> distinguish FOSS as a separate concept and entity?  In my view, it's the
> decision to make software copyrightable... and then, adding similar
> "state-enforced intellectual restrictions" categories, such as patents
> or anti-jailbreaking or anti-reverse-engineering laws.

Agreed.  That's a sort of "enclosure of the commons" to make an
historical allegory.
>
> It has been traditional FOSS philosophy to emphasize these as entirely
> different systems, though I think Van Lindberg put it well:
>
>   Even from these brief descriptions, it should be obvious that the term
>   "intellectual property" encompasses a number of divergent and even
>   contradictory bodies of law.  [...] intellectual property isn't really
>   analagous to just one program.  Rather, it is more like four (or more)
>   programs all possibly acting concurrently on the same source
>   materials.  The various IP "programs" all work differently and lead to
>   different conclusions.  It is more accurate, in fact, to speak of
>   "copyright law" or "patent law" rather than a single overarching "IP
>   law."  It is only slightly tongue in cheek to say that there is an
>   intellectual property "office suite" running on the "operating system"
>   of US law.
>     -- Van Lindberg, Intellectual Property and Open Source (p.5)
>
> So then, as unfortunate as the term "intellectual property" may be, we
> do have a suite of state-enforced intellectual restriction tools.  They
> now apply to software... but as a thought experiment, if we could rewind
> time and choose between a timeline where such laws did not apply to
> software vs a time where they did, which would have a better effect on
> user freedom?  Which one would most advance FOSS goals?

Let's go with the basics here.

In order to live, we make changes to our environment, in order to make
things around us more conducive to our flourishing.  Some may be
remunerated.  Some may not.  But we can call these broadly speaking
"economic production" and it includes everything from cooking dinner
to writing software.

Because we must engage in this process to live, control over economic
production is control over life itself.  Software increasingly
controls economic production and therefore it is an important aspect
of human freedom.  If we are to achieve human freedom we must own our
own labors as well as the just fruits of those labors.

Making this work requires a sort of economic commons where we all
participate and we all have rights to participate.  It doesn't matter
whether you are gay, straight, cis, trans, or from a culture where the
economic life revolves around procreative family/business units.  We
all have a right to participate as owners because without that right,
all we have is slavery.

So that's what open source licenses must protect.
>
> To ask the question is to know the answer.  But of course, we cannot
> reverse time, so the purpose of this thought experiment is to indicate
> the role of FOSS licenses: to use our own powers granted under the scope
> of those licenses to undo their damage.
>
> Perhaps you'll already agree with this, but you might say, "Well, but we
> have all these other problems we need to solve too though... since
> software is so important in our society today, trying to solve these
> other problems inside of our licenses, even if they aren't about
> reversing the power of the intellectual-restriction-office-suite, may be
> effective!"
>
> The first objection to that would be, "well, but it does appear that it
> makes us addicted in a way to that very suite of laws we are trying to
> undo the damage of."  But maybe you could shrug that off... these issues
> are too important!  And I agree the issues are important, but again, I
> am arguing a multi-layered approach.

It's not just that.  It's that this power is so intrusive that it will
be evil.  The kind of intrusion that comes from software licenses
trying to solve problems outside of the creation of economic commons
dooms us to solutions which may cause much more harm than good.
>
> To better illustrate, let me propose a license.  I actually considered
> drafting this into real license text and trying to push it all the way
> through the license-review process.  I thought that doing so would be an
> interesting exercise for everyone.  Maybe I still should.  But for now,
> let me give you the scope of the idea.  Ready?
>
> "The Disposable Plastic Prevention Public License".  This is a real
> issue I care about, a lot!  I am very afraid that there is a dramatic
> chance that life on earth will be choked out within the next number of
> decades by just how much non-degradeable disposable plastic we are
> churning out.  Thus it seems entirely appropriate to put it in a
> license, correct?  Here are some ideas for terms:
>
>  - You cannot use this license if you are responsible for a significant
>    production of disposable plastics.
>
>  - You must make a commitment to reduction in your use of disposable
>    plastics.  This includes a commitment to reductions set out by (a UN
>    committee?  Haven't checked, I bet someone has done the research and
>    set target goals).
>
>  - If you, or a partner organization, are found to be lobbying against
>    laws to eliminate disposable plastics, your grant of this license is
>    terminated.
>
> What do you think?  Should I submit it to license-review?  Maybe I
> should.  Or, if someone else wants to sumbit it, I'll enthusiastically
> help you draft the text... I do think the discussion would be
> illuminating!
>
> Personally though, I'll admit that something seems wrong about this, and
> it isn't the issue... the issue is one I actually care about *a lot*,
> one that keeps me up at night.  Does it belong in a license?  I don't
> think that it does.  This both tries to both fix problems via the same
> structures that we are trying to undo problems with and introduces
> license compatibility headaches.  It's trying to fight an important
> issue on the wrong layer.
>
I agree with your analysis here.  I would add that engagement and
dialog in the context of common cause and common good is a powerful
thing and that collaborating might provide venues for respectful
discussion that might make a difference.

> It is a FOSS *issue* though, in an intersectional sense!  And there
> are major things we can do about it.  We can support the fight of the
> right-to-repair movements (which, as it turns out, is a movement also
> hampered by these intellectual restriction laws).  We can try to design
> our software in such a way that it can run on older hardware and keep it
> useful.  We can support projects like the MNT Reform, which aims to
> build a completely user-repairable laptop, and thus push back against
> planned obsolescence.  There are things we can, and *must*, do that are
> not in the license itself.
>
> I am not saying that the only kind of thing that can happen in a FOSS
> license is to simply waive all rights.  Indeed I see copyleft as a valid
> way to turn the weapons of the system against itself in many cases (and
> there are a lot of cases, especially when I am trying to push standards
> and concepts, where I believe a more lax/permissive approach is better).
> Of course, it is possible to get addicted to those things too: if we
> could go back in our time machine and prevent these intellectual
> restrictions laws from taking place, source requirements in copyleft
> licenses wouldn't be enforceable.  While I see source requirements as a
> valid way to turn the teeth of the system against itself, in that
> hypothetical future, would I be so addicted to them that I'd prefer that
> software copyright continue just so I could keep them?  No, that seems
> silly.  But we also aren't in that universe, and are unlikely to enter
> that universe anytime soon, so I think this is an acceptable reversal of
> the mechanisms of destructive state-run intellectual restriction machine
> against itself for now.  But it also indicates maybe a kind of maxima.
>
> But it's easy to get fixated on those kinds of things.  How clever can
> we be in our licenses?  And I'd argue: minimally clever.  Because we
> have a lot of other fights to make.
>
> In my view, I see a lot of needs in this world, and the FOSS world has a
> lot of work to do... and not just in licensing, on many layers.
> Encryption for privacy, diversity initiatives like Outreachy, code of
> conducts, software that runs over peer to peer networks rather than in
> the traditional client-server model, repairable and maintainable
> hardware, thought in terms of the environmental impact of our
> work... all of these things are critical things in my view.
>
> But FOSS licenses need not, and should not, try to take on all of them.
> FOSS licenses should do the thing they are appropriate to do: to pave a
> path for collaboration and to undo the damage of the "intellectual
> restriction office suite".  As for the other things, we must do them
> too... our work will not be done, meaningful, or sufficient if we do not
> take them on.  But we should do them hand-in-hand, as a multi-layered
> approach.

I think the role is broader, namely to create an economic commons
where all of us, regardless of our disagreements, can participate and
collaborate.  And that has to be the goal.
>
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