Welcome (back) bkuhn! I think we may have an overdue HBR (Hindering
Backchannels Rule) cure from last April but I am no longer sure.
On Sun, Jan 5, 2020 at 8:34 PM Bradley M. Kuhn <bkuhn(a)ebb.org> wrote:
So, the current draft says this:
> If I distribute a Covered Work under a Proprietary License, then the
> licenses I grant You under section 1 are no longer subject to the
> conditions in sections 2 and 3. "Proprietary License" means a license
> which (i) is not royalty-free, (ii) does not permit distribution, (iii)
> does not permit preparation of derivative works, (iv) limits the number of
> licensed users or copies, and/or (iv) contains field-of-use restrictions.
I've often called this one of the most interesting, novel, and ingenious
features that Fontana has promulgated in copyleft-next. Admittedly, as some
of you probably recall from various ancient HBR cures, I lobbied Fontana
pretty hard 5-7 years ago for a solution to proprietary relicensing,
Actually this was something we used to discuss in public long before
inception of copyleft-next, at least as far as I can remember.
suppose he felt pressure to come up with something. I am glad my persistent
complaining brought a great copyleft clause into existence. ;)
It's definitely true that you are the original inspiration of the clause.
Anyway, I have been studying this clause lately and I think it has a
Here's the loophole scenario I can think of:
* Proprietary Relicensing Vendor ("Vendor") sets up a usual proprietary
relicensing "prep system" (i.e., CLAs giving them full powers to
relicense etc), and makes their outbound license copyleft-next.
* Optional, but "helpful" to Vendor's cause: Vendor also takes
technological measures in the software that make it difficult to get to a
full CCS situation (i.e., the stuff is hard to build, or whatever).
* Vendor finds Downstream in violation of copyleft-next, and Downstream
cannot comply within 30 days, either because Vendor "set them up", or
just mundane confusion about copyleft compliance.
And, here's the key part:
* Vendor offers Downstream not a *Proprietary* License, but a permissive
FOSS license for a fee (say, 2-Clause-BSD).
* Optional: Vendor demands an NDA about the whole situation and
The user base is effectively "divided and conquered", since at that point
the Downstream has a business relationship with Vendor and (possibly) also
can't afford to violate the NDA by telling anyone. Without the NDA, of
course, Downstream would have the right to distribute under the 2-Clause-BSD
-- but why would they? They just paid a lot of money to get that, and they
just give it to their competition? There are few business who would care
about software freedom enough to do that.
I'm somewhat confused about this hypothetical. Is it the NDA that is
keeping the violating vendor from continuing to vend software that
contains copyleft-next'd code? I guess you're assuming that the
violation is some sort of interesting "derivative work" kind of
violation, of the sort that is relatively atypical of GNU GPL
violations? Otherwise they wouldn't care about giving anything to
their competition, unless (as is admittedly true of some companies in
the GPL setting) they mistakenly see some sort of proprietary value in
I think *maybe* this problem (if real) could be remedied with a
proprietary relicensing clause that reads something more like this:
If I distribute a Covered Work under any license (except pursuant to
(More specifically, "except pursuant to 6(a)" [stuff under compatible
other than this License, then the licenses I grant You under
section 1 are no longer subject to the conditions in sections 2 and 3.
Hmm, this is more like what we had in the most recent release (0.3.1):
"If I offer to license, for a fee, a Covered Work under terms other than
a license that is OSI-Approved or FSF-Free as of the release date of this
License or a numbered version of copyleft-next released by the
Copyleft-Next Project, then the license I grant You under section 1 is no
longer subject to the conditions in sections 3 through 5."
Maybe we should go back to that? At the moment I can't remember why
this was changed. Though it may still have the tomfoolery problem
you're pointing to.
My specific concerns regarding (1) is that I have this sinking
some of the "escape hatches" away from pure copyleft (i.e., "only under
License and nothing else") that 6(a-c) currently provide might *also* be
used for some form of proprietary relicensing tomfoolery as well. I am also
not clear whether (a) my clause still functions coherently if you yank the
"except pursuant to 6(a-c)", and/or (b) whether the mere existence of 6(a-c)
means there will always be some way for tomfoolery no matter how we chose to
deflate proprietary relicensing.
[ BTW, in researching and thinking about what became this email (and a blog
post I'll be putting up soon generally about proprietary relicensing), I
realized "nullification of copyleft" is a problematic phrase for this
license feature, so as you see I've been calling it "deflation of
proprietary relicensing" -- sort of imagining copyleft as a balloon that
gets deflated if upstream tries to proprietary relicense. I'm getting
used to the term, but if others have better ideas, let's discuss that too.
License adoption is obviously also about marketing, so we need good
phrases to get attention for coypleft-next. Minor HBR Cure related to
this: I talked with Fontana last week on IRC about what terminology might
work better and we couldn't really come up with anything that I thought
was compelling. I came up with "deflation" as a word choice a few days
later on my own. ]
I'm not wedded to "nullification" (though I'm not sure I like
"deflation", but I can't think of anything better). BTW, prior to
copyleft-next 0.2.0 the ancestral section was called "Effect of