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Re: Updating the OpenContent license

On Tue, Jan 18, 2000 at 08:31:58AM -0500, Deb Richardson wrote:
> I think that this is an extremely bad idea.  Having more licenses,
> particularly those like the OPL and the new FSF licenses, is a good
> thing.  Having only one license doesn't do much for an author's "freedom
> of choice", really, particularly when you're talking about removing the
> aspects of the OPL that make it so attractive in many situations.

I disagree.  License proliferation is a big problem for two reasons:

1) Most programmers, and authors, are not sholars in copyright law.  Given
the opportunity to draft their own license from scratch, or apply carte
blanche modifications to an existing one, they are likely to permit things
they didn't intend, forbid things they didn't intend, or render the license
legally meaningless due to internal contradictions -- in which case it
reverts to the default state of "All Rights Reserved."

2) It leads to literally mountainous headaches when people attempt to
mix-and-match pieces of works under differing licenses.  While it perhaps
is appropriate to permit proliferation among almost entirely artistic works
like the Great American Novel[1], it is generally bad when it happens to
works whose function is modular and "practical", such as pieces of source

That said, discouraging license proliferation is not the same as asserting
that there is Only One True License.  It is best to have a small set of
licenses -- perhaps two to four -- whose ramifications are well understood
by at least a significant minority of the community at large.  The more
licenses you have, the harder this general understanding is to achieve.  I
do not, unfortunately, think it has yet been accomplished in the arena of
free software.  I regularly see the most amazing falsehoods uttered with
conviction about the GPL and its ramifications (just today, in fact, on the
XFree86 developers' mailing list).  More and more licenses are not going to
fix this, they are just going to leave ordinary laymen ultimately feeling
incompetent to evaluate licenses.  This is good only for attorneys; not for
authors or programmers.

Moreover, license proliferation promotes an "every man for himself"
attitude which is, I think, contrary to the spirit of sharing and
community-building which I perceive to be one of the enterprises of the
Free Software and Open Content communities.

People do have the right to be hermits, so to speak, but if they invest so
little trust in people generally to redistribute (and modify, if
applicable) their works, then they, and we, are better off if they just
slap the "All Rights Reserved" boilerplate on their work rather than
beating around the bush.  No license is perfectly enforceable, anyway, so
let's not kid ourselves that we can micromanage the consumers of our works.

> I, as an author, would very much like to be able to choose whether
> others are allowed to modify my released documents or not.  I would also
> like to be able to choose who has and hasn't print publication rights. 
> Granted, restricting print publication rights is a very serious
> restriction.  Documents licensed under such restrictions are not
> appropriate for the Open Source Writers Group project (you can read our
> Licensing Policy at http://www.oswg.org/docs/about.html).  As an author,
> however, I would very much like to have that choice.  More importantly,
> the ability to restrict modifications is very important to me.  If I
> release a paper or essay, for example, I would like to control who makes
> modifications and what modifications are made.  

Well, essays that Richard Stallman, for instance, writes have a very
simple, clear, and easy to understand license.  "Verbatim copying in any
medium is permitted."  This solves the problem of editorial control right
there -- if you want to see his essay changed a particular way, you'd
better contact him and he'll do so if he agrees with you.

On the other hand, I think the battle of conventional paper printing rights
is ultimately unwinnable, at least on the license front.  All this business
about "the original publisher's name must appear in larger print than
anything else" sounds like an effort by some cynical publishing house[2] to
get free advertising on the backs of well-meaning authors.  I think it is
likely that, on the artistic side of the fence, there are going to me so
many varied preferences about publication that it is better not to attempt
a one-size-fits-all strategy.  If you'd like to be able to choose who has
and hasn't print publication rights, let's leave it out of the license.
Let what should be personally negotiated stay that way.  My personal hope
is that, in the future, authors of both artistic and technical works will
gain enough leverage that we will see a lot more copyright retention by the
authors instead of publishing houses.  I would like to think that ensuring
free electronic distribution forever will help get us there, but I am not
at all sure that it will.  In any case, I think it is a value that stands
on its own merits[3].

> Technical documentation is a different story.  I agree that Open Content
> technical documentation should, whereever possible, be released under a
> license that allows for free distribution, modification, and
> publication.  But technical documentation is only one catagory of the
> documents that could possibly be covered by the Open Publication
> License.  The OPL is, in my opinion, an excellent foundation for a more
> generally usable license.  

Well, up to the point about license options, I agree.  I think the exercise
of either of those options changes the nature of the license so much that
they should really be separated into a separate license.

It would be convenient if most people who elect to exercise *either* of the
options have, in practice, typically exercised both.  This would make it
possible to restrict ourselves to only two licenses.  OPL without the
options, and some as-yet-unnamed license with both "inlined" instead of
optional.  I won't, however, pretend to know any statisics that back up or
refute my hopeful thesis.

> It also has to be accepted that not everyone is going to release their
> documents under a license that is acceptable to everyone.  That's just
> part of the game.  We cannot _force_ authors to release their docs under
> a certain license (or at all, for that matter), so why would we work to
> eliminate valid licensing options in an effort to create a single
> license?  It's simply non-sensical, and completely goes against the
> whole idea of "freedom" in terms of allowing an author's freedom of
> choice.

I think attempting to come up with one license to solve two very different
classes of problems is doomed to failure.  There is simply too much
distinction between the purpose, style, and emotional investment made by
author of a poem or novel as contrasted with the author of a Unix manual
page.  There are exceptions on both sides, of course -- but with a
dual-license strategy, such exceptional people can simply elect to choose
the "other" license.

Finally, in my (limited compared to many participating in this discussion)
experience, you don't get very far talking about freedom in the context of
whose gets preserved and whose gets limited.  Anyone who has seen a BSD/GPL
flamewar can probably attest to this.  I won't even attempt to rehash the
different perspectives here.  I strongly believe that a far more effective
approach to licensing takes the form of a set of questions: "do you want
people to be able to do X?  Do you mind if Y happens?", and not some
open-ended query like that asked of a Miss America Pageant contestant.  A
BSD advocate and a GPL advocate can both talk about promoting "freedom" and
mean very different things.  The best way to avoid these kinds of meme wars
is to prevent them in the first place, and that means no "one size fits
all" solutions.  It is a fine line between oversimplification and
proliferation.  My assessment, based upon only a few years of participating
in the free software community, is that we need no more licenses that we
can count on one hand, and that, if we're going to propose multiple
licenses at once, we need to consider the ramifications of people trying to
intermix works under each of them.  Determining how many possible
intermixtures there are is a simple problem of combinatorics.  How many can
the average person keep in his or her head? -- that is perhaps the best
gauge.  People will, ultimately, attempt to do something you do not
anticipate.  If you systematically exhaust the possibilities in advance (no
matter how unlikely you think some of them at the time), you stand a much
better chance of drafting good licenses from the outset.  Furthermore, you
can identify at the very beginning what admixtures simply won't be
allowed...say so unhesitatingly, and that will spare us all headaches down
the road.

Sorry for the length of this message.  I've been ruminating about these
issues for a while; hopefully I am able to contribute a worthwhile

[1] Knuth's _TACP_ might be considered a strongly artistic work despite its
highly technical content; this just illustrates that one man's art is
another man's recipe, and is why I am in favor of letting the author choose
one side of the fence or the other.  (For that matter, I see no reason an
author could not delimit sections -- even paragraphs -- of the same work
under alternating licenses, if he or she is prepared for that degree of

[2] Can anyone tell me whose idea that was?  I'd love to know.  I have my
suspicions but I'll keep my slanderous speculations to myself.  :)

[3] shorthand for the dogmatic phrase ("axiomatic, self-evident Good
Thing") :)

G. Branden Robinson            |     Never underestimate the power of human
Debian GNU/Linux               |     stupidity.
branden@ecn.purdue.edu         |     -- Robert Heinlein
roger.ecn.purdue.edu/~branden/ |

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