What'll We Do When FOSS Licenses Jump the Shark?

Historically, non-trivial FOSS (Free and Open Source) licenses were drafted by charities. Core licenses such as the GPL-family of licenses and the Apache license came from organizations such organizations. Charitable organizations like Free Software Foundation and Apache Software Foundation set specific policy goals related to their advocacy mission, and created FOSS licenses that sought to advance those missions.

Meanwhile, other mission-focused organizations, such as Open Source Initiative (OSI) and Debian, sought to codify and analyze these licenses against a written standard to verify they met certain community standards for FOSS licensing. Thanks to such organizations, the idea of approved license lists became an oft-imitated standard used by not only community-focused entities, but also for-profit entities who gather in places like Linux Foundation's SPDX to create license lists that serve their for-profit interests.

Unfortunately, for-profit companies have not always had community advancement as their goal. We saw extensive lobbying efforts during the early 2000s that sought to create a litany of “badgeware” licenses, and some companies even succeed in convincing OSI to declare those licenses “open source”. A broad coalition of organizations and individuals fought successfully in that era against “license proliferation”.

With the rising power of VC-backed companies that seek to prioritize profit over software freedom, we see politicization of the licensing process and a resurgence of license proliferation. Instead of badgeware, these companies, and their lawyers and apologists, seek to create a set of licenses that push copyleft to risible levels of requirement. Their goal is not to use copyleft to defend software freedom, but to redefine copyleft into a toxic system that is inoculated only by a separate proprietary license. In other cases, these initiatives seek to create outright non-FOSS licenses that are labeled under moniker's like “parity”, “public”, and “commons” -- in an effort to draft on the popularity of FOSS to promulgate non-commercial-use only licenses.

Even more unfortunately, the coalition that once opposed license proliferation twenty years ago no longer exists. The FOSS licensing community has fractured into hundreds of pieces. Indeed, these for-profit corporate control efforts have even found allies in the activist community: well-meaning individuals who seek to create non-FOSS licenses that restrict bad actors (such as the USA's Immigration and Customs Enforcement) from benefiting from otherwise-freely-available software. Such “not for military use” licenses have historically been common but did not gain mind-share; today, the strange bedfellows of VC-backed startups and some social justice activists leaves we otherwise-sympathetic-to-the-latter FOSS activists unsure how to advocate for careful and thoughtful consideration of copyleft expansion.

One viable answer is to apply the community-driven processes of production that FOSS projects know best to license production. Copyleft-next was launched in July 2012 as an experimental effort to create a new and easier-to-understand copyleft license that promotes software freedom as well as, if not better than, more complex traditional copyleft licenses.

While copyleft-next has aimed to be substantively and stylistically innovative as a license text, it was also grounded as a project in a simple belief: that FOSS licenses, like FOSS itself, should be created in the open, transparently, and welcome input and discussion from everyone. Mainstream copyleft licenses stewarded by nonprofit FOSS organizations, like GPLv3, MPL 2.0 and EPL 2.0, had (to varying limited degrees) attempted to include community feedback and involvement. But copyleft-next sought to go substantially further. We adopted the methodology and development norms of modern community FOSS projects themselves.

Copyleft-next is just one potential approach among many that we should consider to address misuse and manipulation of copyright licenses to advance ideas that may not fit with principles of FOSS communities. This talk will explain the historical motivations of the current problem, frame the political problem as it exists today, discuss how copyleft-next is one approach to improving the situation, and propose other ideas and work that activists can use to address the problem in other ways.