Towards Communal Licensing

What to do when neither Free/Libre nor Open is enough?

There’s something rotten in the state of FOSS, and it’s not the software. It’s the community — or more precisely, the communal spirit.

This post deviates a little from the regular topics. I do not intend to write a lot on this topic here, unless you, dear reader, provide me with feedback that it fits your interest. Consider it an experiment while work continues on implementing the protocol suite as usually discussed here, and there are fewer technical updates to write.

F(L)OSS — What is it?

Many of my readers will be able to skip this section, but I do not want to lose those who can’t. The thing that is commonly described as “Open Source” in the media actually comes in two very distinct flavours.

On the one hand, there is “Open Source” itself — so called because there was a need to distinguish it from its predecessor on the other hand: “Free/Libre Software”.

  • Free/Libre Software’s goal is to give the user certain freedoms on what to do with the software. These freedoms include the ability to modify the software and share copies of the modified work.

  • Open Source’s goal is much simpler: it’s aim is to improve code quality by making it accessible to a larger community of developers or reviewers, often summarized as Linus' Law: given enough eyeballs, all bugs are shallow.

In practice, the licenses used in each type of software project differ. Free software uses so-called copyleft licenses, which use copyright law to force derived works to adopt the same or compatible licenses. This is sometimes described as a viral license.

Open source tends to use so-called “permissive” licenses, because they are not all that different from giving something to the public domain. Other than expressly giving no guarantees for bug-freeness or use of any kind, there tends to be very little text to the license terms of such licenses.

Deeper Reasons for the Split

The FOSS community tends to be split on which kind of license is preferred. Often, people opt for open source/permissive licenses because it rids them of having to consider intellectual property law and license terms in the first place. And while I disagree with that point of view, it’s their decision to make.

But when you dig deeper into the background to the split, and recall — as I do — the public discussion around it, it becomes very evident that one particularly driving reason for creating open source license was business: it’s very difficult to charge for the use of software when users have the right to download the code and build the software themselves.

To be sure, copyleft licenses are not at all anti-business. They just require businesses to find different revenue streams from simple license agreements. Those might be consultancy related to the modification of the software, or hosting fees, etc.

This requires a shift in mental models, though, that not everyone is prepared to make. In particular it requires shifting away from treating ownership and control of (intellectual) property as the primary means for generating revenue towards more of a service economy point of view.

We’ll get back to that later. For now, just keep in mind that to anyone not prepared to make that shift, copyleft licenses must seem toxic to business needs. Consequently, these licenses tend to be shunned by a fair number of businesses. This, of course, only serves to fuel the more philosophical debate of whether code quality or user freedoms should be valued more.

The Problem

Let’s take a quick look at a particularly problematic example of a business practice in this space, by looking at Docker (I won’t link there). Docker is a software that lets you package and then run other software in a way that keeps it in relative isolation from other software you might be running.

The reasons for doing so range from managing complex infrastructure better to having more security through this isolation. But none of that is the point here.

A quick and very rough timeline of events goes like this:

  1. The main docker software was started and built with a permissive license.

  2. This license also permitted the company to build products surrounding this main docker software.

  3. Since both the main software (and the products) were useful, they attracted a lot of users. In particular, they attracted a lot of community contributions to the main software.

  4. The main product offerings were offered free to use to other FOSS software, in particular those that permit for easy packaging and distribution.

So far, it’s a win-win situation, right?

And because it was easy for FOSS to be packaged and distributed in this way, it evolved into a quasi standard — which is the technical point of view. The business point of view is that it evolved into a quasi monopoly.

A monopoly which Docker the company quickly exploited, by restricting access to those product offerings most useful to FOSS projects.

Of course legally speaking, this is perfectly fine. In the abstract, it also makes sense from a business perspective to reap license fees from the most used parts of your offering.

But it also screws completely with the larger FOSS community, much of which operates on a volunteer basis. Understandably, a lot of developers are angry at the company for on the one hand benefiting from the community’s contributions, and on the other hand, not providing anything back.

Analysis

For copyleft proponents, this is good fuel. It’s a great story of something that copyleft would have prevented. Which is true, but perhaps not for the reason they intend: a copyleft licensed software would have been harder to integrate into proprietary products in the same way. It’s far more likely that copyleft would have prevented the success of the software than that it would have prevented the exploitation of the community.

Listening to voices from the community, it seems as if there is a growing dissatisfaction with how neither copyleft nor permissive licenses can address this well. There is no particular reason, after all, to be anti-business (either in practice or in the minds of people), as long as the business plays nicely.

Let’s get back to the distinction between treating property or services as revenue engines. There is a relation here to politics, and I’ll quote the Wikipedia article on “The Dictator’s Handbook” here:

The main difference between the scenarios of democratic and authoritarian politicians is that democratic politicians have to please a large number of power brokers and/or the public at large while authoritarian ones please relatively small circles. These differences are illustrated in the infrastructure developed in authoritarian and democratic societies.

One of the relationships that emerges is that if the authoritarian regime has easy access to natural resources, then the incentive to please the public is very low. It is far easier to distribute these natural resources amongst a small group of supporters than to invest into the public at large. Conversely, more democratic regimes tend to be associated with service economies.

Although the open source movement is far from having authoritarian roots — one of the most visible supporters in its beginning is also known to have fairly strong US-style libertarian views — there is a rough analogy at play here. As intellectual property is a kind of resource that can be directly exploited, having control over such a resource (with a certain value) means there is less incentive to invest into the community.

Perhaps it is time to re-evaluate the old split between copyleft and permissive licenses and philosophies, and zoom in more on how they focus on people versus property respectively. This should help lead to an alternative path that balances the two views better.

A Path Forward

One of the realisations from this change of perspective is that hardly anyone is opposed to economic activity on principle. Instead, most of the dissatisfaction is focused on when property control becomes excessive to the clear detriment of people. Ideally, there should be a feedback loop that requires some form of compensation to the public if a property is exploited, and such compensation should be commensurate with the amount of exploitation effected — the more you make, the more you need to give back.

While intellectual property laws certainly would permit for such provisions in a software license, there are some issues, practical and theoretical, making this difficult.

The first is that not all exploitation should be handled in this manner. The four freedoms of free software should really continue to apply — benefiting from the fact that you can modify and redistribute software doesn’t need addressing as such.

The second is that any kind of discrimination in a license violates articles 5 and 6 of the Open Source Definition. In principle, not permitting discrimination is a good thing, but the wording of these articles is so libertarian that one cannot even discriminate against groups or fields of endeavour if such discrimination is for the public good, directly or indirectly. I couldn’t ban Nazis from using my software, nor charge only one-percenters.

This unfortunately matters greatly.

Both the Open Source Initiative which authors this definition, as well as the Free Software Foundation which has the four freedoms at its core maintain lists of licenses that they approve of. Furthermore, the complexity of software supply chains makes it necessary (and often a legal requirement) to be able to automatically check large bodies of code from many disparate projects for violations of license requirements. This in turn leads to the maintenance of license lists and the specification of license metadata and tooling such as undertaken by SPDX.

In short, if neither OSI nor FSF approves your license, it’s unlikely to be very successful.

The third is that a license is far more likely to be accepted if it is easy to understand. Assuming the terms of your communal balancing are acceptable enough, either such that OSI and/or FSF can agree with them, or that “Communal License” can become a third pillar, this will only happen if developers adopt these conditions. And that means the target audience for such terms has to be the development community.

A fourth and more subtle one is that it’s actually good to foster commercial adoption of such a license. The only thing that’s bad is unfettered profiteering. One might object to profit-making on principle, but as long as the profit-making fuels the adoption of the software in some form or another, it’s beneficial for the community at large.

Do I have a suggestion?

Kind of. Not really.

Because the problem is complex, anything I can write here is at best a starting point, a collection of thoughts without coherent structure.

  1. To emphasize the people aspect, I would opt with a well known copyleft license to begin with, but add exceptions to it. This is in itself common enough practice. Such exceptions typically exclude certain use-cases of software from the viral nature of the copyleft license.
    In our case, the exception would be more of an exclusion, listing conditions under which the copyleft license cannot apply.

  2. If the copyleft license does not apply, it may be that no license is granted at all, or a different license must apply. To set the tone and emphasize the ethical nature of the scheme, I would simply not grant any license at all to people, groups or fields of endeavour that violate the Universal Declaration of Human Rights.

  3. Other exceptions from the copyleft license should be required in some fashion to give back to the community.
    One choice here could be to issue a commercial license that is only valid in conjunction with a donation receipt signed by the copyright holder. In this way, the copyright holder can with relatively little overhead ensure that some form of give back has occurred. It would be a lot easier to have a fixed value, or publicly visible scheme of profit percentages. This, of course, complicates things further.

  4. An alternative to the donation scheme above would be simply to have to pay license fees to the copyright holder. But in order for this to be a communal thing, the copyright holder would have to be some kind of public interest entity. While public interest entities can receive donations (details depend on legislation, I’m not going into that), when a payment is made in order to receive a particular benefit, it typically no longer classifies for the tax benefits of a donation. This, then, can also be seen as a way to clarify the donation scheme and turn it into a simple license payment in the special case when the copyright holder is a public interest entity.

The problem with these suggestions is, they’re already straying pretty far from simple terms. I can’t say I’m very happy with that aspect. But they do, at least in spirit, capture the idea that excessive profiteering is avoided by also benefiting the public.

What do you think?


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