[License-review] For Approval: The Cryptographic Autonomy License

Tue May 14 00:01:19 UTC 2019

Van, your response to my earlier comments about CAL did not capture my objections correctly.

1. "Performance" is a very misleading word for you to use. First, it is meant by you in an entirely different way than the explicit copyright term-of-art in 17 USC 101:

To “ <https://www.law.cornell.edu/uscode/text/17/101> perform” a work means to recite, render, play, dance, or act it, either directly or by means of any <https://www.law.cornell.edu/uscode/text/17/101>  device or  <https://www.law.cornell.edu/uscode/text/17/101> process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

You risk misleading licensors and licensees about the meaning of that word.

"Performance" also relates, in your private definition, to an API. But an API doesn't require that anything specific be performed. An API by which one program tells another simply to "wake up" doesn't itself perform anything or require the awakened program to perform anything specific. We should be careful not to misinform the Supreme Court about what the vast majority of the software industry means by an API. It is merely a type of interface or interaction between separate copyrighted programs to allow them to function together. Many of us believe that an API should not be subject to copyright or licensing restrictions at all.

2. When a person sends data to a program, no license should require that the receiving program be prepared to send it back. Data is and should remain free. The sender alreadyd knows (or should know) what data she sent to the receiver. There is no need to impose any return burden on the receiver of that data.

More important, my reference in my email to GDPR meant only that the receiver should have a responsibility not to disclose anyone's personal data to any third party. When my phone sends my name and URL and location as data to a receiving program, that automatically (by statute!) should be confidential information. The sender could have copied the data before it was sent, and the receiver should have a confidentiality obligation about that data that forbids her from disclosing it to anyone without my express permission. This has no relationship to "ownership interests or licensing rights." For example, my "location" is not owned; it is merely personal information that I want kept from third parties.

I hope you won't dismiss my concerns about CAL casually.

/Larry

From: License-review <license-review-bounces at lists.opensource.org> On Behalf Of VanL
Sent: Monday, May 13, 2019 2:03 PM
To: License submissions for OSI review <license-review at lists.opensource.org>
Subject: Re: [License-review] For Approval: The Cryptographic Autonomy License

Hello all, 

I wanted to stop for a minute and provide a checkpoint: a good faith summary of what I see as the arguments and counterarguments about the CAL. Please correct me if I am misrepresenting anyone's arguments. 

As far as I see it, there are two substantive debates occurring over the CAL: 

    1) Can data portability can be guaranteed as part of software freedom/under the OSD?

    2) Is the legal mechanism of using "public performance" effective, compliant with the OSD, and good policy?

These issues are fundamental. Regardless of how well (or how poorly) the CAL is drafted, these cannot be resolved through more precise wording or better examples. Other issues of wording, or clarifications about the role of patent rights have been raised, but those seem to have been resolved through explanation or changes to the wording. There is also a third line of argument that the CAL is too complicated, and that complexity per se should be disqualifying. With regard to this third argument regarding complexity, it seems subordinate to the substantive debates above. (For an example, see Perens, ; also in rebuttal, Villa, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004143.html)

The substantive arguments above generally only apply to the "operator" use case, where the software is being run by a first user (the "operator") to provide services to one or more second users (the "end users"). Note that the linked messages below are *representative*, not comprehensive.

1. Arguments about data portability: The CAL conditions the exercise of copyright and patent permissions on providing data portability for end users of the software in the operator context. This is for "User Data" as defined in the CAL, which is scoped to data that is input to or output from the software in which a user as a preexisting interest.

- Argument: The data portability provisions violate freedom zero. (Perens, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004121.html)

- Response: Data portability is in line with traditional notions of software freedom (Lindberg, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004123.html), see also "CAL is a net positive contribution to software freedom" (Ingo, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004148.html) 

- Argument: It is a use restriction (prohibited under OSD 6) to deny operators the ability to withhold user data from end users because it applies more particularly in the operator case. (Perens, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004081.html, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-April/004036.html)

- Response: Operators are free to use the software in any way they see fit - there is nothing in the CAL that denies them the ability to use the software in any particular way. They just have to take the additional action of providing data portability along with source.

- Argument: This encumbers data that is outside the scope of the license. (Perens, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-April/004032.html)

- Response: The CAL does not create any rights that did not previously exist. It does not change the license for any work or data. (Lindberg, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-April/004033.html)

- Argument: Data is not copyrightable, so not reachable by the license. (Rosen, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004137.html)

- Response: The copyrightability or not of data is not relevant to the license; the CAL does not create new ownership interests or licensing rights. (http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004139.html)

- Argument (Ingo vs Ingo!): CAL may fail OSD #6, in similar fashion to license zero... "I also agree with Bruce that this whole topic is a can of worms" 

- Response: Having "Freedom to run the program for any purpose" includes both operator and end user as people "running" the program - this is the idea behind all network copyleft.... CAL is scoped "in a way that is quite defensible" 

(Both are Ingo, same message: http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004148.html)

- Argument: Data portability is an ethical restriction which doesn't belong in a license. (Cowan, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004140.html)

- Response: The CAL limits itself to permissions for the work and does not invoke ethical duties (http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004108.html)

2. Arguments about the legal mechanism: Open source software licenses rely on intellectual property law to enforce their rules concerning the licensing of derived works. Most existing FOSS licenses have used the ability to distribute the work and to create derivative works (both under copyright) as the traditional "hook" for enforcement. Some alternatives do exist: the third party beneficiary language in NASA 1.3, and the "network interaction" with a modified work in AGPL.The CAL also uses distribution and the ability to create derivative works as hooks for copyleft enforcement. The CAL also uses "public performance" (either as included in the copyright statute or as defined in the included definition), as well as patent rights (specifically "use", "sale," and "offer for sale").

Most of the arguments have to do with the use of public performance:

- Argument: This is legally untested and not necessary (e.g. Ingo, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-April/004046.html)

- Response: The only other license applicable in an operator context is the AGPL, which uses legally novel terms, is gameable relative to enforcement, and ambiguous in a corporate context (Lindberg, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-April/004047.html, see also Fleming, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-April/004049.html)

- Argument: Public performance is US-centric and may not be applicable in the international context. (Chestek, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-April/004054.html)

- Response: WIPO "Communication to the public" appears analogous (Atkinson, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-April/004055.html, see also Ingo, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-April/004060.html), and "Public performance is also a defined term" (Lindberg, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004108.html)

- Argument: Public performance extends copyright ("is copyright maximalist") and so should be rejected as a matter of policy. (example: Henrik Ingo, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-April/004059.html, see also Peterson, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004092.html). 

- Response: "Public performance is recognized under copyright" and it is better to use existing legal terms (Lindberg, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004095.html, see also Rosen, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004137.html, but Rosen mentions that it may be limited in application)

- Argument: The CAL uses Oracle v. Google-based logic regarding API reimplementation, this is premature (Fontana, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-April/004062.html) 

- Response: These rights already exist, this is not an extension (Lindberg, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004108.html, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-May/004089.html). Also, the structure of the CAL does not make it dependent upon a particular outcome in OvG (Chestek, http://lists.opensource.org/pipermail/license-review_lists.opensource.org/2019-April/004067.html)

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