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

Tue May 14 14:04:35 UTC 2019

Van,

I don't think your summary accurately captures the fundamental policy
concerns a few of us have expressed about CAL's application of
copyleft to copyrighted APIs, which were traditionally, if informally,
assumed to be in the public domain in the technology industry and FOSS
community during the decades in which open source grew up.

To me, the main issue is not that it is "premature". Even if we
received clear legal rulings, in multiple commercially-significant
jurisdictions, to the effect that APIs are copyrightable as such,
there would still be a question whether it is appropriate from a
software freedom perspective to extend copyleft to take advantage of
such copyrightability.

You seem to be assuming that whatever a jurisdiction recognizes as
copyrightable makes it "fair game" to use as a legal basis for an
extension of copyleft specifically.
I would argue that an open source license could, and maybe should,
explicitly account for the potential copyrightability of APIs in a
given jurisdiction, but it should do so by applying maximally
permissive licensing to such APIs. I am not currently convinced that
anything more than this is consistent with traditional community
understandings of software freedom and the Open Source Definition.

Richard

On Mon, May 13, 2019 at 5:03 PM VanL <van.lindberg at gmail.com> wrote:
>
> 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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-- 
Richard Fontana
Senior Commercial Counsel
Red Hat, Inc.