[License-review] Non-Commercial doesn't compose (and it never will)

[Kevin P. Fleming]

Did this belong on license-discuss? It doesn't seem to be referring to
any license submitted for review.

On Fri, Apr 19, 2019 at 3:49 PM Christopher Lemmer Webber
<cwebber at dustycloud.org> wrote:
>
> It's sad to see history repeat itself, but that's what history does, and
> it seems like we're in an awfully echo'y period of time.  Given the
> volume of submissions in favor of some sort of noncommercial style
> license, I feel I must weigh in on the issue in general.  Most of my
> thoughts on this developed when I worked at Creative Commons (which
> famously includes a "noncommercial" clause that can be mixed into a few
> licenses)*, and it took me a while to sort out why there was so much
> conflict and unhappiness over that clause.  What was clear was that
> Non-Commercial and No-Derivatives were both not considered "free
> culture" licenses, and I was told this was drawn from the lessons of the
> free software world, but here we are hashing it out again so anyway...
>
> * I'm not suggesting this is a CC position; Creative Commons hasn't to
> my knowledge taken an official stance on whether NonCommercial is right,
> and not everyone internally agreed, and also I don't work there anymore
> anyhow.
>
> I thank Rob Myers for a lot of clarity here, who used to joke that NC
> (the shorthand name for Non-Commercial) really stood for "No Community".
> I think that's true, but I'll argue that even more so it stands for "No
> Composition", which is just as much or more of a threat, as I hope to
> explain below.
>
> As a side note, I am of course highly empathetic to the motivations of
> trying to insert a noncommercial clause; I've worn many hats, and
> funding the software I've worked on has by far been the hardest.  At
> first glance, an NC approach appears to be a way to solve the problem.
> Unfortunately, it doesn't work.
>
> The first problem with noncommercial is that nobody really knows for
> sure what it means.  Creative Commons made a great effort to gather
> community consensus, and you can read some of that here:
>
>   https://wiki.creativecommons.org/wiki/Defining_Noncommercial
>
> But my read from going through that is that it's still very "gut feel"
> for a lot of people, and while there's some level of closeness the
> results of the report result in nothing crisp enough to be considered
> "defined" in my view.  Personally I think that nothing will ever hit
> that point.  For instance, which of these is commercial, and which is
> noncommercial?
>
>  - Playing music at home
>  - Playing music overhead, in a coffee shop
>  - A song I produced being embedded in a fundraising video by the Red
>    Cross
>  - Embedding my photo in a New York Times article
>  - Embedding my photo in a Mother Jones article
>  - Embedding my photo on Wikipedia (if you think this is a clear and
>    easy example btw, perhaps you'd like to take a selfie with this
>    monkey?)
>
> But this actually isn't the most significant part of why noncommercial
> fails, has always failed, and will always fail in the scope of FOSS:
> it simply doesn't compose.
>
> Using the (A)GPL as the approximate maxima (and not saying it's the only
> possible maxima) of license restrictions, we still have full composition
> from top to bottom.  Lax and copyleft code can be combined and reused
> with all participants intending to participate in growing the same
> commons, and with all participants on equal footing.
>
> Unfortunately, NC destroys the stack.  NC has the kind of appeal that a
> lottery does: it's very fun to think about participating when you
> imagine yourself as the recipient.  The moment you have to deal with it
> underneath, it becomes a huge headache.
>
> I had an argument about this with someone I tend to work closely with,
> they began arguing for the need to insert NC style clauses into code,
> because developers gotta eat, which is at any rate a point I don't
> disagree with.  But recently several of the formerly FOSS infrastructure
> switched to using an NC license, and they began to express that this
> opened up a minefield underneath them.  If it felt like a minefield with
> just one or two libraries or utilities following the NC path, what will
> happen once it's the whole system?
>
> What would using Debian be like if 1/4 of the packages were under NC
> licenses?  Would you deploy it on your home machine?  Would you deploy
> it on your personal VPS?  Would you deploy it at your corporate
> datacenter?  Even if I am a "noncommercial" user, if my VPS is at
> Linode, would Linode have to pay?  What about Amazon?  Worse yet...
> *what if some of the package authors were dead or defunct*?
>
> To me it's no coincidence that we're seeing an interest in NC right at
> exactly the same time that faith in proprietary relicensing of copyleft
> code as a business strategy has begun to wane.  If you were at my talk
> at CopyleftConf, you may have heard me talk about this in some detail
> (and some other things that aren't relevant to this right now).
> You can see the original table here on slide 8:
>
>   https://dustycloud.org/misc/boundaries-on-network-copyleft.pdf
>
> Not everyone's email clients will successfully reproduce the table,
> so hopefully nested bullet points will survive better:
>
>  - Libre Commoner
>    + Motivation: Protect the commons
>    + Mitigating: Tragedy of the Commons
>      (as in, prevent commons from being "eaten away")
>    + Wants: Compliance
>
>  - Proprietary Relicensor
>    + Motivation: Develop income
>    + Mitigating: Free Rider Problem
>    + Wants: Non-compliance
>
> The difference in the "wants" field is extremely telling: the person I
> will call the "libre commoner" wants everyone to be able to abide by the
> terms of the license.  The "propretary relicensor" actually hopes and
> dreams that some people *will not* comply with the license at all,
> because their business strategy depends on it.  And in this part, I
> agree with Rob's "No-Community" pun.
>
> Let me be clear: I'm not arguing with the *desire* to pay developers in
> this system, I'm arguing that this is a non-solution.  To recap, here
> are the problems with noncommercial:
>
>  - What commercial/noncommercial are is hard to define
>  - NC doesn't compose; a tower of noncommercial-licensed tools is
>    a truly brittle one to audit and resolve
>  - The appeal of NC is in non-compliance
>
> Noncommercial fails in its goals and it fails the community.  It sounds
> nice when you think you'll be the only one on top, but it doesn't work,
> and it never will.
>
>  - Chris
>
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