Pushing Back Against Licensing and the Permission Culture

kthreadd writes "Luis Villa has an interesting discussion on the topic of not licensing at all, what he calls POSS or Post Open Source Software. With a flood of new hackers flocking to places like GitHub which doesn't impose any particular requirements for hosted projects, the future of Open Source may very well be diminishing. Skip licensing, just commit to GitHub. What legal ramifications will this have on the free and open source community going forward?" From the article: "If some 'no license' sharing is a quiet rejection of the permission culture, the lawyer’s solution (make everyone use a license, for their own good!) starts to look bad. This is because once an author has used a standard license, their immediate interests are protected – but the political content of not choosing a license is lost. Or to put it another way: if license authors get their wish, and everyone uses a license for all content, then, to the casual observer, it looks like everyone accepts the permission culture. This could make it harder to change that culture — to change the defaults — in the long run. So how might we preserve the content of the political speech against the permission culture, while also allowing for use in that same, actually-existing permission culture?"

Comments

Uh ... What?

[eldavojohn]

Am I missing something? From the article via Twitter:

younger devs today are about POSS – Post open source software. fuck the license and governance, just commit to github. - James Governor (@monkchips) September 17, 2012

Ah, yes, eloquently stated. And, you know, it's totally okay to do that but let's assume that you've "fucked" the license and governance and your code is great and popular. Now, what stops a company from taking your code and making massive changes to it and shipping that code for mad moneys? What forces them to give back their changes that might make that code better? What did you and the community gain by contributing to that company's revenue? What if I just took your code and put it on a CD and started selling it with no credit to you and no link or reference to the source code? Wouldn't that rub you the wrong way? Just a little? Well, what if that company then claimed that your code was an unlicensed version of their code and moved to have it remove?

And that's why we have open source licenses. So those are out there and if you're lazy or whatever you can just download this file (or the corresponding OSS license you like) and put it in the root directory of your source tree. Are you really too lazy to include a simple txt file in your source tree? At the possible expense of your $MOST_HATED_COMPANY turning the screws on you?

This article seems to focus on just the "hey browski, I heard you liked code, here's my code" hippy hacker mentality and grievously ignores the "did Facebook just use an altered version of my library to track its mobile users?" possibilities.

To follow the analogy started by the twitter post: OSS licenses are like a condoms. Stop being lazy and just use one.

Re:Uh ... What?

[Anonymous Coward]

If you didn't include a license then those others had no legal right to use it whatsoever. Even looking at it in the public viewer is questionable.

The problem is that the legal framework defaults to all rights reserved unless you explicitly grant rights.

Re:Uh ... What?

[Cid Highwind]

Now, what stops a company from taking your code and making massive changes to it and shipping that code for mad moneys?

Their legal department. Without a more permissive license, they're stuck with default copyright terms (no copying except for narrow "fair use" exceptions) so they can't distribute it. Ethical companies wont touch it, unethical ones would have no qualms about pirating BSD/MIT/GPL/whatever licensed code anyway, and the hackers and hippies don't care about licenses will use it and carry on not caring about licenses.

Re:Uh ... What?

[Americano]

The point that the author is making is that there should be some sort of option to allow you to specify this - "do whatever the hell you want, stop asking me if you can use it, I don't care."

He's making the point because, as he notes, a significant portion of the code on GitHub doesn't specify a license, which means it defaults to "all rights reserved," even though that's clearly not the intent of at least some portion of the "no-license" authors there.

Re:Uh ... What?

[Anonymous Coward]

That "do what you want with it" license is called Public Domain and it's been around for eons. You still need to explicitly state that your software is public domain, which is a sort of license.

Re:Uh ... What?

[AvitarX]

I think you can put your work in the public domain, also there are licenses such as the WTFPL, also, a license like CC without the riders should work too i think.

And if you want to make a political statement, add a rant before the license, something like damn those capitalist pigs, I shouldn't have to do this.

Re:Uh ... What?

[Americano]

And the WTFPL is one of the first ones he brings up in his "fixing the problem" section of TFA, and CC+modifications is the second.

His point is that people "rejecting the permission culture" should do so explicitly, by licensing their software in such a way that explicitly states their rejection. Omitting a license, as he notes (and other people who haven't RTFA have also pointed out here) defaults copyright to "all rights reserved," and so creates a legal minefield, which limits the ability of people to reuse that code if they're concerned at all about copyright issues.

Since it's clear that at least some of these people WANT to reject licensing altogether, he's arguing that it's better to come up with a license scheme that rejects that licensing / permission culture than it is to skip thinking about any license.

Re:Uh ... What?

[gstoddart]

Not in most places, it doesn't. By uploading it to a site where the normal result is for uploaded code to be available via a public viewer, you are giving your implicit consent for people to view it that way, just like anyone visiting any other web site.

Unfortunately, in most legal jurisdictions, things are copyrighted out of the gate, and can only become more open with an explicit act.

If you upload code to a web site, it's publicly available, but that doesn't mean public domain. And many code samples I see say "copyright" on them.

If you don't explicitly grant a license, then that stuff is in a gray area where you may not legally be able to work with it.

And then there's the whole issue of if you can grant rights on someone else's stuff. If you took the code for, say, Windows, and published it -- even though you've made it publicly accessible, it wasn't your code to give away so anybody downloading it has no protections.

I certainly wouldn't use the availability on a web site as any meaningful level of "implied consent", because copyright law doesn't really allow for it. There is no implied consent, there is copyright, and explicit consent. Copyright all rights reserved is the "implied" here, because that's how the laws are written.

And people tend to forget that the open source licenses only really work by leveraging the principles of copyright to grant an explicit exemption.

Re:Uh ... What?

[icebike]

Posting as AC its clear you don't intend to assert these rights. That's not the issue.
Someone else can assert the rights.

They take your code, change it just a tiny bit, and turn around and demand license fees from other users, and perhaps you yourself. (Don't laugh, this has happened). Slap at least some kind of license on your code, if for no other reason than protect people who want to use it in the future. Give them some legal standing to use your code before some other entity asserts their own ownership.

Pick a license, any license, but don't send your code naked into the world to be used as a club by others. You aren't doing anyone any favors by releasing with no license whatsoever.

Re:Uh ... What?

[lister king of smeg]

Or BSD licence, then you have the legal protection of the not our fault if it screws your computer clause

Re:Uh ... What?

[DickBreath]

> I'm not going to try to assert my rights in this case. I suspect others who release code without a license would do the same.

You or I can suspect all we like.

Without a license I have no assurance what the author intended and I am not going to touch it with a ten foot pole. The way the author expresses their intent is with . . . ta da . . . a license.

Re:Uh ... What?

[SomePgmr]

Public domain may not be the default status of a published work, at least in the USA.

Not may not, it is not. Copyright is automatic. The terms of use you assign, either by agreeing to a ToS or an explicit license, are largely separate.

This means that code is essentially untouchable in its whole form. Without a declaration, the originator owns it, IMHO.

That's not just your opinion, that's how it is. You own your work unless you've assigned ownership to someone else, or done as work for hire, under contract, etc. That's licensed or not. You continue to "own" your work, even if you eventually license it permissively. That means you can do a fork of your own work that's completely closed too, if you like, so long as you don't run afoul of any previous or interim contributors' work and licensing.

Don't confuse that with the ability to retroactively revoke the terms of a permissive license though. You can't just yank GPL licensed code back from people that are using it. The license is designed that way.

Re:Uh ... What?

[SomePgmr]

Not to worry, neither am I, but we're in pretty plain territory here. :)

Copyright Basics, from copyright.gov
http://www.copyright.gov/circs/circ01.pdf

Copyright protection subsists from the time the work is cre
ated in fixed form. The copyright in the work of authorship
immediately becomes the property of the author who cre
ated the work. Only the author or those deriving their rights
through the author can rightfully claim copyright.
In the case of works made for hire, the employer and not
the employee is considered to be the author. Section 101 of
the copyright law defines a âoework made for hireâ as [...]

Wishful thinking does not change the law

[ShanghaiBill]

From TFA:

the open license ecosystem assumes that sharing can’t (or even shouldn’t) happen without explicit permission in the form of licenses.

This is because our legal system makes this assumption. Wishful thinking does not make laws go away. If you release software with no license, then it is legally presumed to have full copyright protection. You need to explicitly give up your rights.

Better read up on what GitHub does impose...

[cjjjer]

By default all code that does not have a license is "all rights reserved" http://www.infoworld.com/d/open-source-software/github-needs-take-open-source-seriously-208046

Re:the point is to keep the leachers in line

[ShanghaiBill]

if there is no license than someone can take the work, use it for their own product, make money and not give anything back

Nope. If there is no license, then the work is presumed to have full copyright protection. Full copyright is the default , and you need to provide an alternative license if you want people to legally use it in any way.

Public domain

[dalias]

If you think your personal making-a-statement against "permission culture" is more important than the practical ability of others (including distributors) to use the code you produce without exposing themselves to legal risk, then you're part of the "permission culture" - you feel entitled to deny others permission to use your work.

If you want to make a responsible statement against "permission culture", release your work into the public domain, and include a one-clause BSD license for use in jurisdictions that don't recognize public domain.

unlicensed code (D)DOS

[vlm]

There's an interesting hack you can do against unlicensed / unattributed code. Slap your name on it, now tell github to stop violating your copyright and remove "your" code from their server that someone else stole and uploaded. After all, the original author didn't care enough about his work to put a license on it, so you have a minor moral and ethical permission to take it as yours, after all, its abandonware, and if you no longer want your code distributed on github, well...

I imagine the trial would be hilarious.

"He stole my code and deleted it from my github account"
"its not the plaintiffs code, the only known licensed version of it in the whole world is from the defendant. The plaintiff himself repeatedly stated the code he was publishing was not licensed, our position is the plaintiff stole the defendant's code, deleted the copyright and license from the headers, and uploaded it to his pirating account, which we shut down"
"..."

Re:BSD

[jedidiah]

Yup. I have been calling the BSD license "glorified public domain" for years.

This really does come off like some kid with no experience thinking that he re-invented the wheel. "Do what you want" licenses already exist. There's also a reason that copyleft exists and it's not just to "stick it to the man".

That guy already tried the "do what you want" approach and got burned. His contributors screamed bloody murder when some commercial entity exploited their work.

Re:BSD

[lgw]

The BSD license is fundamentally differet from public domain, because stuff can be removed from the public domain. The event which caused RMS to go off the rails, invent the GPL, and become the advocate he is today was just that. There was a neat, public domain, text-based unix game called "empire". A game company started selling a very simplified version of this game, and then started sueing anyone who distributed the public domain version (or perhaps further changes to that) for violating their copyright. Pre-existing public domain work doesn't protect you.

The BSD license exists just to prevent stuff like that - you can't lose ownership and be sued to stop making further changes to your own work, as you can with public domian.