I think this is a pretty fair summary of our discussion. I would add a few
quick clarifications of my position, though:
On Sun, Apr 7, 2013 at 7:03 PM, Richard Fontana <fontana(a)sharpeleven.org>wrote:
On Mon, Apr 01, 2013 at 08:01:52PM -0400, Richard Fontana wrote:
> BTW copyleft-next has been temporarily dormant mostly because I, the
> SABDNNFL, have lately had various real-life things severely minimizing
> the copiousness of my spare time.
> However, a small part of the dormancy has to do with a very basic
> drafting problem I am trying to figure out how to deal with, as to
> which I may post something to this list separately in the near future.
This posting is, in part, a Harvey Birdman Rule cure, related to the
On or about Thursday, 2013-04-04, in Amsterdam, I had a conversation
with Luis Villa which I believe crossed into HBR disclosure territory.
I expressed some concerns I currently have concerning how best to
implement strong copyleft (in the strict 'scope' sense) without
sacrificing the goals of brevity and simplicity.
Luis tied this topic to the rule/standard dichotomy in US law (to my
knowledge it is a US-specific concept as to the terminology, at least,
though I could be wrong). Here's BTW is how Luis nicely explained
rules vs. standards back in 2011:
In law, there is the concept of "rules" and "standards."
rules are precise- they allow a judge to simply look at the facts,
apply the rule, and voila- you know whether the rule was
violated. An example would be "The speed limit is 55." If you’re
driving 56, you’re in violation- even if, say, you’re speeding to
the hospital with your pregnant wife. Alternately, if you’re driving
54 you’re fine- even if it is pouring rain. Rules are good because
they are easy for the public to understand (no need to consult with
a lawyer) and because their application (should be) very evenhanded,
but good, fair rules are very hard (in many cases essentially
impossible) to write.
A standard, on the other hand, is more vague- something like "The
speed limit is whatever speed is safe to drive at under the
circumstances." This might not allow you to go 56 to the hospital,
but would definitely not allow 54 in the rain. These are bad in some
ways because they are trickier, case-by-case, hard to predict the
outcome of beforehand, and involves judgment on the part of all
parties, but (arguably) produces better outcomes a lot of the time-
assuming you can trust the parties doing the judging, and you can
put up with the cost of taking the time to make the decision.
CC BY-SA 3.0 Unported
I'd add to this summary that rules tend to be easier to circumvent;
standards (because they are more flexible) often give the party charged
with enforcement more ways to act against bad actors (but may make even the
most basic enforcements more time-consuming and complex).
In Luis's view, the MPL is 'rule' oriented copyleft,
while the GPL is
a 'standard' oriented copyleft, and I got the sense that Luis thought
that each approach was appropriate in its respective sphere.
I think "appropriate" might not be quite right. Certainly MPL aims at a
more rule-based approach (to enhance predictability), and so is probably
"appropriate." I've never thought about whether a standards-based approach
for GPL is "appropriate" because, at least until Thursday, I had always
assumed a standards-based approach for GPL was necessary, given the vague
and amorphous state of the law when trying to create a strong copyleft.
Having now pondered the issue, I think a standards-like approach for strong
copyleft is probably appropriate, given the likely importance of
enforcement to achieving the goals of a strong copyleft. But I'm very open
to persuasion on the point and don't have strong commitments/feelings on
the issue yet.
I thought this was a very insightful analysis, but I then said that
have come to find the GPL 'standard' approach to strong copyleft
dissatisfying. This dissatisfaction is related to the problem of
complexity that copyleft-next was originally supposed to tackle. Also
related to this (and I may have expressed some of this in the
conversation with Luis): I suppose that the 'rule'-like nature of MPL
weak copyleft is obvious, but the notion of GPL strong copyleft as a
standard is less obvious to those of us who talk about it, interpret
it, and apply it.
GPL strong copyleft as a standard is at least suboptimal. We lack
sufficient authoritative guidance on what this standard actually *is*
even in fact patterns that we encounter repeatedly. I used to speak
hopefully of there being a 'lex mercatoria' around free software
generally (and I certainly thought of GPL copyleft scope
interpretation as being part of this) but this was to a large extent
...well, overly optimistic.
I think you may be overly pessimistic here. There is definitely somewhat of
a lex mercatoria, and it would be even stronger for a "next generation"
license that learns from past mistakes (e.g., the more specific definition
of "corresponding source" in copyleft-next) and has a FAQ baked in from day
one. But yes, it certainly is beneficial mostly to the lawyers.
All we have is an ever-growing body of contradictory,
behavior. We have things like the FSF's FAQ, perhaps intentionally
designed to encourage people to err on the side of releasing more
rather than less GPL-compatible source code, and at any rate largely
out of touch with actual conduct by projects (including the very
distributions the FSF endorses!) that release or use strong (or, for
that matter, weak) copyleft code. We do have nearly 15 years of
commentary by lawyers on topics related to this, but much of it is
technically clueless, politically biased in its own peculiar and
undisclosed ways, or otherwise unhelpful and painful.
In a fit of minor despair, some weeks ago I changed the README
description of copyleft-next from 'strong copyleft' to 'non-weak
copyleft', but don't read too much into that.
So, anyway, what I'm wondering currently is whether there is a way to
express strong copyleft scope more as a 'rule' rather than as a
'standard'. Like an MPL-ish approach, but less weak? Alternatively, if
that is not possible or desirable (without making the license unduly
long), I wonder whether one can express strong copyleft as a
*standard* in a way that the GPL family (and current copyleft-next) do
not quite do even if Luis is correct in his analysis.
I don't have any answers at the moment.
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