Younger developers reject licensing, risk chance for reform

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Modern copyright law grants copyright automatically to any creative work, including simple things like blog posts – and small pieces of code on github. This default copyright creates an assumption that for someone to do anything further with someone else's creative work requires permission from the author—what Lawrence Lessig calls "the permission culture." The open license ecosystem often takes this permission culture for granted, rather than fighting back—and that may be contributing to the proliferation of unlicensed code.

Post open source software

A few months back, James Governor (@monkchips) tweeted: "younger devs today are about POSS–Post open source software. f*ck the license and governance, just commit to github." While the actual extent of "POSS" is debatable, there is definitely an increase in the amount of unlicensed code out there. A recent post by Max Jones Werner, Are GitHubbers taking open source seriously?, suggests that 20% or more of the most-watched github projects are unlicensed. (The previously dominant code sharing platforms, SourceForge and Google Code, required a license choice before publication, so their percentage was zero.) The pushback against licensing isn’t specific to software, either—at least some sharing musicians are deliberately spurning Creative Commons and Nina Paley has been obliquely making the same point about the licensing of her art as well.

This lack of licensing is a bad thing—it creates confusion for other developers, creates risk for authors, and is great for lawyers. So if all that is true—why are people still not doing it?

Reasons for the licensing pushback

POSS might be more than just bad hygiene. It is easy to assume that the pushback against licenses ("post-open source") is because licensing is confusing/time-consuming and people are lazy/busy. While I’m sure these are the primary reasons, I think that, for some people, the pushback against licenses often reflects a belief that "no copyright should mean no permission needed." In other words, those people choose not to use a license because, on some level, they reject the permission culture. In this case, publishing without a license is in some way a political statement—"not every use should need permission." 

Another motive, that I won’t go into here but which also deserves serious discussion for license authors, is simply that the values encapsulated in our licenses are taken for granted by younger developers who have always had a plentiful, healthy free-as-in-beer code commons. Both the permissive and copyleft communities would do well to argue the case for their licenses (not just their overall philosophies) better than they currently do.

Rejecting the permission culture

If some "no license" sharing is a quiet rejection of the permission culture, the lawyer’s solution (make everyone use a license, for their own good!) can be interpreted as active acceptance of the permission culture. Once an author uses a standard license, their immediate interests are protected—but the political content of not choosing a license is lost. Or to put it another way: if license authors get their wish and everyone uses a license for all content, then, to the casual observer, it looks like everyone accepts the permission culture. This could make it harder to change that culture—to change the defaults—in the long run.

To be clear, a license can't actually change the defaults—those are baked into copyright law. The best it can do is register a protest against, and raise awareness of, the current state of things.

So how might we preserve the content of the political speech against the permission culture, while also allowing for use in that same, actually-existing permission culture? Or to put it more concisely: what would a "license" that actively rejects the permission culture look like?

A couple of off-the-wall options:

  • Permissive + political preamble license: The WTFPL license ("Do WTF you want") has been floating around for ages, and using it makes the point that (1) you want people to use your code and (2) you’re irritated that they even have to ask. Adding a brief "I hate that I have to do this" preamble to a permissive license like CC-0 might serve a similar purpose, while providing more legal certainty than WTFPL. (And of course such a preamble could also be used with a strong copyleft, like copyleft-next.) 
  • Fair Use: Fair use is the traditional safety valve for copyright, but it is hard to know if a particular use is "fair." So a license could be written that it, instead of formally licensing under specific terms, instead aims to provide more certainty about fair use. Some ways this could be done would include broadly defining the fair use categories, explicitly accepting transformative use as a factor in the fair use analysis, or asking courts to interpret ambiguity in favor of the recipient instead of the author. It is also possible to imagine this as a supplement to the existing fair use clauses in modern licenses (CC-BY 3.0 Sec. 2, GPL v3 Sec. 2, MPL 2 Sec 2.6), laying out a strong vision of fair use to help guide and protect anyone relying on those clauses.
  • "What People Actually Think Copyright Is" license: most Americans think that personal use of copyrighted materials is legal under modern copyright law. (See research mentioned in Jessica Litman's Digital Copyright.) So a license that focused on personal use might work better than the more nebulous "non-commercial." As a bonus, since commercial interests will clearly be unable to use the content, getting it "right for lawyers" may be less of a concern. 

Careful readers will note that the last two options are unlikely to be OSI-open or FSF-free. For the purposes of this exercise, that’s OK—the assumption that licensing is always a good thing is what I’d like to provoke people to think about here.

A provocation

I don’t offer these license ideas as a comprehensive survey of what an anti-permission-culture license might look like, or even a good survey. Instead, take them as a provocation: are we— articularly authors and evaluators of open licenses—part of the problem of the permission culture? Are we actually responding to the people who use our licenses, if one of their desires is to push back against the need to license? Can we be more creative about expressing distaste for the permission culture, without gumming up the works of sharing too much? I think that, if we think critically, we can, and perhaps we should.

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I am a lawyer and community-builder, and currently the co-founder and general counsel of Tidelift. In previous lives, I've been:


I once wrote .....

<b>Freedom without Conditions:</b>

We can thank RMS for a lot of thing's but it's my personal opinion that the GPL isn't one of those thing we should be thanking him for. The GPL preaches true freedom with a list of condition's, you can do this but not that!

Freedom is black or white, it's ether free or it's not. My preferred license is no licenses at all. You can do as you wish.

I still believe that.

*** You can do as you wish. ***

This is still a form of license. Without your statement, regular copyright applies. No license, no rights whatsoever for anyone but the author.

One can't reject copyright without getting into politics to get it abolished. The powers that be have embedded it into the core of our society.

Just dumping code on a publically accessible location and ignoring copyright is setting others up for costly lawsuits.

Isn't it messed up how the system works, it feels like a situation where you have to ....

You give man a free beer, he looks at you with fear in his eyes. You wondering what the hell, doesn't he like beer? So you tell him .... Um its ok dude I didn't spit in it or anything ;) But he says to you ... No its not that ..... Can I get it in writing that I can drink this beer I don't want to go to jail for theft man!!!

What have we become?

Beer and source code are two different things. The recepient of the code needs to know under what conditions you throw it over the fence. By default it is copyrighted by you, which means nobody but you can use it for anything. A license is simply the text that tells the recipient under what conditions you provide the code. There is no such thing as "just free". There is public domain (check it out on wikipedia) which come close, but public domain means nobody can copyright the code, which is a restriction in itself. The closest thing to what you want is probably BSD, which is a very popular license, and works out well in many cases. For the rest of us who dislike forking or proprietary vendors closing down our code without contributing back, GPL is a more natural choice.

GPL was a master piece. It gave us competitive free operating system, it gave us the best kernel the world ever has seen, it gave us back webkit, it gave us open drivers. The list goes on. It gave us a heck of a lot more freedom than public domain code ever did. Anarchy and freedom are two very different concepts.

The point of those restrictions is to prevent derived works from being proprietary. In a world where copyright law applies, the GPL is the closest approximation to a world without copyright. I think the GPL preamble fairly well explains the reasons for the restrictions.

I put a license on my works not to protect ME but to protect YOU.

If Jill uses Jack's creative work without a license, then Jack could come back later and sue Jill for copyright infringement. Is Jill just supposed to assume that Jack is a nice guy? Maybe Jack is planning a massive series of lawsuits or "settlement" offers later on. If Jack were truly such a nice guy, he would have just put a clear unambiguous and precise statement on his creative work that gives Jill permission. (eg, one of those evil "license" thingys)

Someone putting out code without a license should not be viewed as a nice gesture. It should be viewed with deep suspicion. What's their ulterior motive? If they didn't have one, then they would have used a license in order to protect your interests forever. The fact that they don't or won't do this speaks volumes.

It's nice to reject the permission culture. I agree strongly with it. But it's the law. If you don't like it, then work to get the law changed.

Don't create an environment where bad actors can later sue other people. Just because you wouldn't sue someone who used your work without a license, doesn't mean some troll wouldn't try to take advantage of the practice if it became widespread. This no-license practice is helping to create a situation that is ripe for abuse. Here's a clue: there are bad people in the world. Yes. Really.

If me and my neighbors are building a project on my front lawn very close to the curb, should you assume that you are free to participate?

""Someone putting out code without a license should not be viewed as a nice gesture. It should be viewed with deep suspicion."

This comment shows a lot of what is wrong with the world. Apparently the problem isn't people taking advantage and waiting to sue people who use code which has been put out as bait. The problem is apparently that we aren't paranoid enough. Why are we embracing a culture of fear? We should be rejecting that and instead focus on how we can create a better trust culture.

It is not a culture of fear. It is pragmatism. Code without a license is automatically NO TOUCH. Why? Because default Copyright applies the moment it is created. Default Copyright means only the author is authorized to make copies and derivatives. If people want to build trust, just put a license to the code.

excellent article

Another situation:
Jack may indeed be a nice person, put his code out on Github without a license, and was extremely happy that people used his code for anything and everything!

However, some years later, Jack dies. Jack's heir, Darl, is not so nice. Darl is perhaps upset Jack spent all his time coding, and none with Darl. Well, Darl wants to get something, and so Darl, as the legal heir to Jack's copyrights, hires lawyers and sues everyone who ever used Jack's code.

Note that in at least some countries, this could happen a month after the code's released, or fifty years after, or even over a hundred years after (life of author + 70 years... so far), regarding the heir to the heir to the heir to the heir. Even if Jack's child is good, what about Jack's great-grandchild?

No large, serious project can afford to take a chance on that - clear licenses should absolutely be required given the current legal climate in most of the world.

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