A group of lawyers have banded together to try to classify and rank all free software licenses, and during that work they came up with a list of checkboxes. None of the licenses reviewed checked all boxes, so they went and made a "model license" that would live up to all their expectations.
A brief story of that work is at https://writing.kemitchell.com/2019/03/09/Deprecation-Notice.html . The Blue Oak Model License 1.0 (the BOML1) is a very short, very non-legalese permissive license with a patent clause, and the authors claim that it covers all relevant bases. The spirit of the endeavour is very similar to the spirit behind copyleft-next:
Blue Oak starts with a summary of its purpose, a built-in TL;DR. You should read the whole license, because it’s easy and it matters. Blue Oak wants to be understood.
Ok, so that's the background on what the BOML1 is. Now:
We have mentioned before on the list how the sunset clause in copyleft-next really gives rise to a permissive-next license, which is copyleft-next with some conditions removed or disabled.
If the legal theory and the prose of the BOML1 are good, does it make sense for permissive-next to deviate from BOML1 at all? Or should copyleft-next actually be BOML1 + copyleft provisions + sunset clause? And vice versa, if permissive-next is better in some way than BOML1, shouldn't they want to know about it and incorporate the improvements in BOML2?
The board of Blue Oak are Heather Meeker, Kyle Mitchell and Luis Villa. I think Villa is a member of this mailing list? He has forked copyleft-next on github, so he knows about the project for sure. :-)
On Sat, Mar 16, 2019 at 3:50 AM Claes Wallin (韋嘉誠) copyleft-next@clacke.user.lysator.liu.se wrote:
The board of Blue Oak are Heather Meeker, Kyle Mitchell and Luis Villa. I think Villa is a member of this mailing list? He has forked copyleft-next on github, so he knows about the project for sure. :-)
Correction to self: Villa *starred* copyleft-next on github. And yes, he has contributed posts to the list in the past. So, hi Mr. Villa, if you're reading this, what's your opinion on what the relation should be between permissive-next and BOML?
I Am Not A Lawyer, but what immediately jumped out at me is how the patent grants seem *very* different between BOML and permissive-next.
BOML states merely:
Each contributor licenses you to do everything with this software that
would otherwise infringe any patent claims they can license or become able to license.
permissive-next by contrast states:
1. Subject to the terms and conditions of this License, I grant You:
... b. A non-exclusive, worldwide, perpetual, royalty-free, irrevocable patent license under Licensed Patents to make, have made, use, sell, offer for sale, and import Covered Works.
"Licensed Patents" means all patent claims licensable royalty-free by Me,
now or in the future, that are necessarily infringed by making, using, or selling My Work, and excludes claims that would be infringed only as a consequence of further modification of My Work.
"Covered Work" means My Work or a derivative work of My Work.
Your license grants under section 1 are automatically terminated if You
initiate a patent infringement litigation claim (excluding declaratory judgment actions, counterclaims, and cross-claims) alleging that any part of My Work directly or indirectly infringes any patent.
Termination of Your license grants extends to all copies of Covered Works
You subsequently obtain. Termination does not terminate the rights of those who have received copies or rights from You subject to this License.
To the extent permission to make copies of a Covered Work is necessary
merely for running it, such permission is not terminable.
As far as I understand it, then, BOML's patent grant gives licensees (be they users or creators of derivative works) patent licenses, in fact even more broadly than permissive-next if I'm reading that right? I'm not entirely sure *how* broad the scope of the BOML grant is; "can license *or become able to license*" [emphasis mine] sounds like it could have theoretically unlimited scope!
By contrast permissive-next:
- Grants fewer but IMHO far clearer granting of patent rights; notably it draws a boundary at any additions to the work, only covering the work as provided by "the individual or legal entity that places" the work under permissive-next. - In other words, at least as I understand it if Entity A owns patents 1 and 2, and the work as provided to the public under permissive-next includes stuff that would fall under patent 1, Entity B could take that work and be confident they would not be infringing patent 1, but if Entity B adds functionality that would infringe patent 2 the patent grant would *not* then apply to patent 2. - It seems to me that in this scenario if the work was under BOML this might be quite different, and patent 2 would in fact be covered under the patent grant, which while arguably positive from a "software patents, they're bad!" perspective, is oddly viral (so to speak) for a permissive license, and seems like a pretty big blank cheque to write. - Terminates your patent license grants if you initiate patent infringement litigation against the entity you got those grants from via the software license. - So, if Entity B owned patent 3 and figured Entity A was infringing on it with The Work, if they then sued Entity A over this (perhaps as retaliation for having been sued over infringing patent 2) they would lose their license for patent 1 for their Derived Work. No such termination would take place under BOML.
I could be really misreading this all; as aforementioned, IANAL! But it sure seems to me that permissive-next and BOML are *very* different licenses in terms of just the patent grant portion alone. And as the patent grant portion is a core part of copyleft-next, it would make no sense for copyleft-next to sunset into BOML.
And in addition, as aforementioned, I find the wording in BOML very unclear and ambiguously broad, which is a serious problem when you're trying to convince people to use a new license. To editorialize a bit more, one of the big upsides and selling points of copyleft-next is that it tries to be legally comprehensive while still being easily readable by baseline humanity; BOML by contrast seems to err far more on the side of brevity, arguably to the detriment of clarity.
P.S. I note in the linked-to article, https://writing.kemitchell.com/2019/03/09/Deprecation-Notice.html,
Several lawyers came together, in GitHub private repos
And indeed there seems to be no public record of this drafting process, at least not one that I could find. This seems diametrically opposed to much of the philosophy underpinning copyleft-next and its development, expressed in part as the Harvey Birdman Rule: https://raw.githubusercontent.com/richardfontana/hbr/master/HBR.md
On March 16, 2019 12:58:46 AM UTC, Keith Z-G keithzg@gmail.com wrote:
Several lawyers came together, in GitHub private repos
And indeed there seems to be no public record of this drafting process, at least not one that I could find. This seems diametrically opposed to much of the philosophy underpinning copyleft-next and its development, expressed in part as the Harvey Birdman Rule: https://raw.githubusercontent.com/richardfontana/hbr/master/HBR.md
Actually this surprised me too.
AFAIK these lawyers are all from the US and the HBR is an evident byproduct of US culture: nowhere else people would forbid private reflection on a topic simply because we all know that such rule is:
- impossible to enforce (but I guess these days Google, Facebook and WeeChat are all doing their best to setup a way :-D) - easy to freely workaround (till Google, Facebook and WeeChat succeed).
The HBR is just a form of intellectual surveillance that pretend to produce trasparency.
In practice, - it gives power to the best influencers, instead of the best arguments (who are the best influencers these days) - it blur the responsibility of their decisions that are described as collective
At least, if I write a license (or anything else) and propose it for public discussion, I put my name and credibility at stake. I take risks and fully accept the responsibility and the feedbacks.
Public collective drafting is just a process to preserve large group interests without putting their lobbists on the front line.
Giacomo
On Sat, 16 Mar 2019 at 01:15, Giacomo giacomo@tesio.it wrote:
On March 16, 2019 12:58:46 AM UTC, Keith Z-G keithzg@gmail.com wrote:
Several lawyers came together, in GitHub private repos
And indeed there seems to be no public record of this drafting process, at least not one that I could find. This seems diametrically opposed to much of the philosophy underpinning copyleft-next and its development, expressed in part as the Harvey Birdman Rule: https://raw.githubusercontent.com/richardfontana/hbr/master/HBR.md
Actually this surprised me too.
AFAIK these lawyers are all from the US and the HBR is an evident byproduct of US culture: nowhere else people would forbid private reflection on a topic
Now, hold on there. Maybe there's some miscommunication here, and that might well be due to some unclear phrasing on my part, but the point *I* was making at least was that this other license being talked about here does not follow the public drafting philosophy of copyleft-next; apparently, unspecified lawyers drafted the Blue Oak license in private git repositories, and are now throwing it over the wall. You might argue that this is actually the correct way to draft a license. You might even be right! But that isn't the spirit and principle in which copyleft-next has been drafted, and so from that aspect alone it would seem foolish to try and combine these efforts.
At least as I comprehend it (and now I'm definitely going to be speaking purely from personal opinion), copyleft-next is largely a response to the GPLv3 and trying to improve upon *that* license, and one aspect of that is in trying to make the development process of copyleft-next as open as the development process of the sort of Free Software projects that might adopt such a copyleft license. In a sense, the effort here is to draft a successor (hence -next) to the GPL version 3 that keeps even more true to the spirit behind the GPL than any previous copyleft license.
Or to turn it around: why *shouldn't* the drafting process of a license be as open as the development process of the software that is to be licensed under it?
(And certainly, the Harvey Birdman Rule is in direct opposition to the Chatham House Rule, which is by no means unpopular with U.S. lawyers. In fact, it would seem to be that the U.S. based lawyers that drafted the BOML are working under some equivalent rule, if not that rule exactly.)
(Also: the HBR does not at all forbid "private reflection on a topic"! Rather, it insists that any *discussion* on a topic, when substantive to the process of the actual development of the license, should be made public. It can even be made public retroactively!)
simply because we all know that such rule is:
- impossible to enforce (but I guess these days Google, Facebook and WeeChat are all doing their best to setup a way :-D)
- easy to freely workaround (till Google, Facebook and WeeChat succeed).
Well of course; bad actors can always subvert processes if they want to. I mean hell, copyleft, and even permissive, licenses, are violated all the time around the globe, and often there's very little that can practically be done to stop them. That doesn't mean we should just give up on Free licenses altogether! (And if you feel that way, surely this is not a worthwhile use of your time!)
And if we're (perhaps rightfully) worried about a future in which centralized yet ubiquitous private actors like Google, Facebook, etc have too much power, why would we not aspire to produce the legal framework for software aligned against those interests in as forthright and honest of a way as possible?
The HBR is just a form of intellectual surveillance that pretend to produce trasparency.
I'm not entirely certain what you're trying to say here, although I am sure I disagree.
In practice,
- it gives power to the best influencers, instead of the best arguments (who are the best influencers these days)
- it blur the responsibility of their decisions that are described as collective
At least, if I write a license (or anything else) and propose it for public discussion, I put my name and credibility at stake. I take risks and fully accept the responsibility and the feedbacks.
Sure, and arguably that is what the Harvey Birdman Rule is trying to do; everyone's contributions, arguments, and positions are up for public discussion, rather than being made in secret and attributable.
Public collective drafting is just a process to preserve large group interests without putting their lobbists on the front line.
If we're worried about powerful interests subverting our efforts in the Free Software world and in the world in general, should not we be all the more demanding of clear and verifiable arguments and justifications behind proposed changes (to licenses, to software, to laws, etc etc), so that as an interested public we can make informed decisions and avoid being suckered into serving malignant interests?
On Sat, 16 Mar 2019 at 01:59 Keith Z-G keithzg@gmail.com wrote:
rather than being made in secret and attributable.
s/attributable/unattributable/
On March 16, 2019 7:59:57 AM UTC, Keith Z-G keithzg@gmail.com wrote:
the point *I* was making at least was that this other license being talked about here does not follow the public drafting philosophy of copyleft-next; [...] You might argue that this is actually the correct way to draft a license. You might even be right! But that isn't the spirit and principle in which copyleft-next has been drafted, and so from that aspect alone it would seem foolish to try and combine these efforts.
There are several political and technical reasons that make the Blue Oak Model License and copyleft-next incompatible, rather than philosophy and processes.
AFAIK the attempt to draw at both copyright law and contract law without a signed agreement sound somewhat fragile under civil law. At least in Europe, copyright violations are penal crimes, and that's why it doesn't mix easily with contracts.
The HBR is just a form of intellectual surveillance that pretend to produce trasparency.
I'm not entirely certain what you're trying to say here, although I am sure I disagree.
So you don't know what you disagree with? :-D
What I mean is simple: by requiring that ALL discussions on a license is made public (while being unable to actually enforce that), you subdue the discussion itself to power dynamics that favor powerful players able to bypass the rule and influence the public discussion towards their goal.
Guess what? That's the whole goal of surveillance.
Or to turn it around: why *shouldn't* the drafting process of a license be as open as the development process of the software that is to be licensed under it?
You seem confused about how Free Software is developed.
Few projects have a democratic direction. Most open source projects pretend to, but are actually lead by corporate interests. The vast majority are small programs developed by one single developer. Some are lead by small teams (usually with very few strong leaders within).
And if we're (perhaps rightfully) worried about a future in which centralized yet ubiquitous private actors like Google, Facebook, etc have too much power, why would we not aspire to produce the legal framework for software aligned against those interests in as forthright and honest of a way as possible?
:-D There's no way that such regulation can emerge from a comittee that can be freely joined by how many lobbyists as required.
In practice,
- it gives power to the best influencers, instead of the best
arguments (who are the best influencers these days)
- it blur the responsibility of their decisions that are described as
collective
At least, if I write a license (or anything else) and propose it for public discussion, I put my name and credibility at stake. I take risks and fully accept the responsibility and the feedbacks.
Sure, and arguably that is what the Harvey Birdman Rule is trying to do; everyone's contributions, arguments, and positions are up for public discussion, rather than being made in secret and attributable.
Except there's no way to ensure this, so it's basically naive wishfull thinking at best.
Public collective drafting is just a process to preserve large group interests without putting their lobbists on the front line.
If we're worried about powerful interests subverting our efforts in the Free Software world and in the world in general, should not we be all the more demanding of clear and verifiable arguments and justifications behind proposed changes (to licenses, to software, to laws, etc etc), so that as an interested public we can make informed decisions and avoid being suckered into serving malignant interests?
That's simply not how human knowledge has been elaborated in the last 5000 years.
In Europe, intellectuals always conducted deep and difficults debates through carefully (and privately) written essays and treatises, signed whenever possible.
While a mailing list is an asynchronous medium that can surely support a healthy discussion, the volume and fragmentation of threads can be easily manipulated to make the whole discussion too complex to really be transparent. And side-channel agreements are always possible.
In synthesis I don’t think people can produce good licenses (or software) "by committee". Even less by open-ended committes
Instead, by discussing together texts carefully crafted in private by people who take the responsibility for them, we can go beyond the balance of interests among the players and really innovate.
It's not just a faster process: it works! ;-)
Giacomo
Hi, Claes- It's been six years since my inbox has seen a mention of permissive-next, and it isn't in the SPDX list, so I hope Richard will forgive me that I had completely forgotten its existence. :)
Couple quick thoughts, mostly to confirm Keith's observations:
- there is no defensive termination in BOML, mostly to make it a true "universal donor" license but also for simplicity, and because such clauses are not helpful against trolls. For most use cases this approach therefore seems simpler and more straightforward than the combination of permissive-next Sections 3 and 6, especially in a world where we may soon see a broad variety of strong copylefts one might want to "donate" to. (Which is not to say that permissive-next is *wrong* in approaching things this way. Just different.) - the patent grant is deliberately broad. I have not compared it in detail to permissive-next's. - drafting was indeed private; variety of reasons for that but in large part simply because some of us are currently exhausted by the current atmosphere around licensing discussions and wanted to default to release early, release often. (Also, for what it is worth, I probably would not choose this route for a complex copyleft, which has many more difficult drafting choices that would benefit from extensive discussion.) There are also downsides to private discussions, of course; I think they've been exhaustively discussed over the years and won't rehash them here.
On Fri, Mar 15, 2019 at 1:05 PM Claes Wallin (韋嘉誠) < copyleft-next@clacke.user.lysator.liu.se> wrote:
A group of lawyers have banded together to try to classify and rank all free software licenses, and during that work they came up with a list of checkboxes. None of the licenses reviewed checked all boxes, so they went and made a "model license" that would live up to all their expectations.
A brief story of that work is at https://writing.kemitchell.com/2019/03/09/Deprecation-Notice.html . The Blue Oak Model License 1.0 (the BOML1) is a very short, very non-legalese permissive license with a patent clause, and the authors claim that it covers all relevant bases. The spirit of the endeavour is very similar to the spirit behind copyleft-next:
Blue Oak starts with a summary of its purpose, a built-in TL;DR. You
should read the whole license, because it’s easy and it matters. Blue Oak wants to be understood.
Ok, so that's the background on what the BOML1 is. Now:
We have mentioned before on the list how the sunset clause in copyleft-next really gives rise to a permissive-next license, which is copyleft-next with some conditions removed or disabled.
If the legal theory and the prose of the BOML1 are good, does it make sense for permissive-next to deviate from BOML1 at all? Or should copyleft-next actually be BOML1 + copyleft provisions + sunset clause? And vice versa, if permissive-next is better in some way than BOML1, shouldn't they want to know about it and incorporate the improvements in BOML2?
The board of Blue Oak are Heather Meeker, Kyle Mitchell and Luis Villa. I think Villa is a member of this mailing list? He has forked copyleft-next on github, so he knows about the project for sure. :-)
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On Sat, Mar 16, 2019 at 1:30 PM Luis Villa luis@lu.is wrote:
Hi, Claes- It's been six years since my inbox has seen a mention of permissive-next, and it isn't in the SPDX list, so I hope Richard will forgive me that I had completely forgotten its existence. :)
You are certainly forgiven!
Richard
On Sat, Mar 16, 2019 at 4:00 AM Keith Z-G keithzg@gmail.com wrote:
At least as I comprehend it (and now I'm definitely going to be speaking purely from personal opinion), copyleft-next is largely a response to the GPLv3 and trying to improve upon *that* license, and one aspect of that is in trying to make the development process of copyleft-next as open as the development process of the sort of Free Software projects that might adopt such a copyleft license. In a sense, the effort here is to draft a successor (hence -next) to the GPL version 3 that keeps even more true to the spirit behind the GPL than any previous copyleft license.
Or to turn it around: why *shouldn't* the drafting process of a license be as open as the development process of the software that is to be licensed under it?
That is all correct. As I recently said in a thread on the OSI license-discuss list, I now am much more skeptical than I once was about the value of software-development-oriented tools for creating software *licenses* (if not non-software works in general), but I continue to believe in the value of public development of free software/open source licenses. Indeed I said this when someone asked me recently about the Blue Oak license: "new putative FOSS licenses should be drafted in public and collaboratively, not in private as I gather Blue Oak was" (https://twitter.com/richardfontana/status/1104811186665721856)
(And certainly, the Harvey Birdman Rule is in direct opposition to the Chatham House Rule, which is by no means unpopular with U.S. lawyers.
HBR is certainly a response to (and parody of) CHR. I actually suspect that the vast majority of US lawyers have no idea what CHR is.
In fact, it would seem to be that the U.S. based lawyers that drafted the BOML are working under some equivalent rule, if not that rule exactly.)
I assume they are working in total (collaborative) secrecy to the same degree as any other collaborators using a private GitHub repository.
(Also: the HBR does not at all forbid "private reflection on a topic"! Rather, it insists that any *discussion* on a topic, when substantive to the process of the actual development of the license, should be made public. It can even be made public retroactively!)
Yes, as illustrated by some past "HBR cures" involving conversations between me and bkuhn. Ah, those were the days!
Richard
On Fri, Mar 15, 2019 at 4:05 PM Claes Wallin (韋嘉誠) copyleft-next@clacke.user.lysator.liu.se wrote:
The Blue Oak Model License 1.0 (the BOML1) is a very short, very non-legalese permissive license with a patent clause, and the authors claim that it covers all relevant bases. The spirit of the endeavour is very similar to the spirit behind copyleft-next:
I'm not sure that is so.
We have mentioned before on the list how the sunset clause in copyleft-next really gives rise to a permissive-next license, which is copyleft-next with some conditions removed or disabled.
If the legal theory and the prose of the BOML1 are good, does it make sense for permissive-next to deviate from BOML1 at all? Or should copyleft-next actually be BOML1 + copyleft provisions + sunset clause?
This is all academic because BOML (leaving aside its dubious copyrightability of course) has been clarified to be under a non-free license, so copyleft-next / permissive-next (which is covered by CC0) can't use it.
Richard
On Sat, Mar 16, 2019 at 12:19 PM Richard Fontana fontana@sharpeleven.org wrote:
On Fri, Mar 15, 2019 at 4:05 PM Claes Wallin (韋嘉誠) copyleft-next@clacke.user.lysator.liu.se wrote:
The Blue Oak Model License 1.0 (the BOML1) is a very short, very non-legalese permissive license with a patent clause, and the authors claim that it covers all relevant bases. The spirit of the endeavour is very similar to the spirit behind copyleft-next:
I'm not sure that is so.
I'd ask why, but I suspect the correct answer is "because we haven't really communicated our goals terribly clearly".
We have mentioned before on the list how the sunset clause in copyleft-next really gives rise to a permissive-next license, which is copyleft-next with some conditions removed or disabled.
If the legal theory and the prose of the BOML1 are good, does it make sense for permissive-next to deviate from BOML1 at all? Or should copyleft-next actually be BOML1 + copyleft provisions + sunset clause?
This is all academic because BOML (leaving aside its dubious copyrightability of course) has been clarified to be under a non-free license, so copyleft-next / permissive-next (which is covered by CC0) can't use it.
I think we're going to fix that to an "do what you will as long as you remove naming" statement, FWIW. Still not sure any of the specific language is worth salvaging to -next's drafting style, though.
Luis
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