[License-discuss] Question about AGPLv3 with a Plugin Exception

[McCoy Smith]

> -----Original Message-----
> From: License-discuss <license-discuss-bounces at lists.opensource.org> On
> Behalf Of Bradley M. Kuhn
> Sent: Wednesday, August 10, 2022 7:54 PM
> To: license-discuss at lists.opensource.org
> Subject: Re: [License-discuss] Question about AGPLv3 with a Plugin Exception
> 
> Having been a key drafter of the Classpath Exception, the GCC RTL Exception,
> and Web Template Output Additional Permission (WTO-AP, used by the
> Houdini project), I have found that additional permission drafting is
> sometimes even more difficult than primary license drafting.  I have various
> complaints about the outcome of those three additional permissions — even
> though I have intimate knowledge why they are ultimately worded the way
> that they are.
> 
> The theory of 'additional permissions' is better than the practice.  For
> everything but the most trivial, you'll need drafting help of someone with
> serious experience drafting copyleft licenses to get an outcome that doesn't
> just confuse people and/or eviscerate the copyleft entirely.
> 
> Furthermore, folks who are really interested in copyleft and its policy goals,
> as I am, are going to ask you this question first: *Why* do you feel that you
> must permit proprietary plugins to your application in the first place?  What
> is the policy goal you're trying to achieve, and why does a pure application of
> the license not achieve it?
> 
> We asked these questions first before helping the Houdini project create the
> WTO-AP, and I think the outcome was much better for it, because we were
> able to narrow in on the exact area that required the AP.
> 
> Finally, keep in mind that while additional permissions are fully permitted by
> the GPLv3 family of licenses, they are used in practice so rarely that users are
> usually quite confused by them.  Thus, if your reason for adding an
> Additional Permission is to "gain adoption" from folks who don't like the
> AGPLv3, it's likely to have the opposite effect.
> 
> On Wed, Aug 10, 2022 at 3:07 PM McCoy Smith <mccoy at lexpan.law> wrote:
> > > You might want to check out the SPDX lists of exceptions:
> > > https://spdx.org/licenses/exceptions-index.html
> 
> This is a strange suggestion as answer to Joel's query, most importantly
> because AFAICT none of the additional permissions listed there are drafted
> for AGPL, but also because the list is just a tiny subset of the additional
> permissions that are widely used.

Yes, it is a subset. But it has the advantage of being one place where quite a number of exceptions are reposited, which makes it a bit easier to look at a number of drafting examples for exceptions.
I of course did not say "look at this site that has a lot of AGPL exceptions for APIs" so I'm not sure why you want to criticize the reference on that basis. I will note that the SPDX Exception site does list the Classpath Exception (https://spdx.org/licenses/Classpath-exception-2.0.html) and  the GCC RTL Exception (https://spdx.org/licenses/GCC-exception-3.1.html), of which you say you were a "key drafter," so I'm not sure why you think that site should be dismissed. There are of course many other exceptions for things like linking on that site which -- at least by analogy or as a starting point for drafting -- might be of use. Many of the are also written for the *GPL family of licenses, including *GPLv3.

FWIW, I'm not aware of any specific "API" exception (for AGPL, or any of the *GPL licenses), which may be a function of the position taken by, inter alia, the Free Software Foundation that "Frankly, in the free software community, everyone always assumed APIs themselves weren't copyrightable." https://www.fsf.org/blogs/community/who-ever-thought-apis-were-copyrightable-anyway (the OSI said similar things in its amicus brief https://www.supremecourt.gov/DocketPDF/18/18-956/128321/20200113120624750_18-956%20Amici%20Curiae.pdf ) Alas, the outcome in Google/Oracle didn't validate that position (although it arguably came pretty close and the situation outside the USA is more along those lines).

Which, in response to Joel's original question, if Joel's looking for a plug-and-play exception for this specific situation, there probably is not one readily available. Joel might want to engage a lawyer for some drafting advice. Since Joel is in Oregon, as am I, I can recommend someone if Joel wants to do that.