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

Fri Apr 19 20:23:20 UTC 2019

My bad!  Reposted here:

  http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/2019-April/020396.html

Simon Phipps writes:

> Yes. L-R is for discussion of specific licenses, L-D is for more general
> discussion.
>
> Chris, I love your post - please repost on L-D so we can consider it
> further.
>
> S.
>
>
>
> On Fri, 19 Apr 2019, 21:05 Kevin P. Fleming, <kevin+osi at km6g.us> wrote:
>
>> 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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>> >
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