[A bit rambling] Open source licensing being questioned byanti-copyright types

[ClassCastException]

In dealing with Java, OpenJDK, and Clojure stuff in recent months I'd
come to suspect that open source licensing is itself a source of trouble.
Notably, Clojure's license is incompatible with the GPL, under which
large chunks of other open source software is licensed. It seemed to me
that a measure intended to free up software so anyone could develop it
and contribute to it, as long as their contributions in turn became
available to others, had somehow gotten itself tangled in knots that
actually hindered this purpose.

So I decided to do a little reading on copyright in general. Why does it
even exist? The nominal purpose, it turns out, is to "promote the
progress of science and the useful arts" by providing a way for the
creators of any popular or important work to ensure remuneration,
basically. Which smells suspiciously like a grant of monopoly -- which,
barring the notion of "fair use", it basically is. Furthermore there are
a LOT of blogs out there expressing serious criticism of copyright,
pointing out that fair use is not in most cases a workable defense even
when it should be, and that copyright has been twisted away from its
original purpose by corporations seeking to extend and tighten their
control over lucrative media and software properties.

It thus seems that copyright was twisted away from its original purpose,
to which it might have been poorly suited to begin with, and open source
licenses try to twist it back toward that purpose. Double twist. Is it
any wonder it's getting tangled in knots?

Here's something even weirder though: my blog-surfing led me eventually
to http://www.againstmonopoly.org/index.php?perm=593056000000003021 where
there is mention of open source licenses being not without problems. And
I saw something familiar out the corner of my eye: [insult deleted] in
the "most recent comments" thing at the right. Curious, I clicked on "My
Growing Library of Banned Books" and wouldn't you know it, it is indeed
Twisted, flaming some poor pro-copyright person who showed up at the blog
to criticise it. Talk about sticking your head in the lion's den,
especially when one of the lions is Twisted!

Upshot: I think I'll use BSD-type licenses for now. They're compatible
with almost anything, license-wise, including the GPL and Clojure's
license, and have a decent level of respect in the open source world. I
don't think I can go far wrong if I use the two-clause BSD license on my
code.

If anyone knows differently, or has any other insights on the licensing/
how-to-make-money/copyrights-are-they-good-or-evil issue as they apply to
Java/JVM developers, I wouldn't mind knowing what they have to say.
Please do try not to turn this into a useless anti-Twisted flamefest
though; this newsgroup has gone a good long time without one of those and
I for one like it just fine that way.

 

[Mike Schilling]

Upshot: I think I'll use BSD-type licenses for now. They're compatible
with almost anything, license-wise, including the GPL and Clojure's
license, and have a decent level of respect in the open source world.
I don't think I can go far wrong if I use the two-clause BSD license
on my code.

The main difference between BSD and GPL is that BSD doesn't preclude use in
for-profit software. If that's your intent, it's a good choice.

 

[Nigel Wade]

The main difference between BSD and GPL is that BSD doesn't preclude use
in for-profit software. If that's your intent, it's a good choice.

The GPL makes no such exclusion. I presume that you've been reading the
FUD rather than the GPL.

This comes direct from the GPL FAQ:

"If I use a piece of software that has been obtained under the GNU GPL,
am I allowed to modify the original code into a new program, then
distribute and sell that new program commercially?

You are allowed to sell copies of the modified program commercially,
but only under the terms of the GNU GPL. Thus, for instance, you must
make the source code available to the users of the program as described
in the GPL, and they must be allowed to redistribute and modify it as
described in the GPL.

These requirements are the condition for including the GPL-covered
code you received in a program of your own. "

 

[David Lamb]

The GPL makes no such exclusion. I presume that you've been reading the
FUD rather than the GPL.

This comes direct from the GPL FAQ:

"If I use a piece of software that has been obtained under the GNU GPL,
am I allowed to modify the original code into a new program, then
distribute and sell that new program commercially?

You are allowed to sell copies of the modified program commercially,
but only under the terms of the GNU GPL. Thus, for instance, you must
make the source code available to the users of the program as described
in the GPL, and they must be allowed to redistribute and modify it as
described in the GPL.

These requirements are the condition for including the GPL-covered
code you received in a program of your own. "

I'd really like to understand the various FOSS licence issues better, so
please forgive the question if it's a diversion:

Does this quote mean that, although one can legally sell modified code,
there is little incentive for anyone to pay for it, since they can
obtain, use, modify, and redistribute for free?

 

[Lew]

Does this quote mean that, although one can legally sell modified code,
there is little incentive for anyone to pay for it, since they can
obtain, use, modify, and redistribute for free?

The quote does not mean that.

You might choose to conclude that based on other data, but it's not what the
quote means.

The tendency to blame the license for the conclusions that one draws about it
causes misunderstanding and misuse or abuse of open-source licenses and FUD
among potential users of the software they cover.

The GPL as cited only says you have to provide the source code. It does not
preclude incentives to pay for it. For example, source code is really only
useful if you have a developer handy. Users that don't have one handy will
have to pay to have one handy in order to use the source code. They can pay a
third party to provide the GPLed code and make it work, or they can hire an
employee to do so. Either way, they're paying for the software.

And why would they redistribute it? It's open source; there's no onus on them
to distribute what any user can obtain on their own. So that provides no
disincentive to purchase the software.

Sure, they can obtain it for free, and theoretically even use it for free.
But what if they want more than the minimum functionality? Someone still has
to apply expertise to the use of the software, expertise that must be
purchased regardless of licensing fees.

Modify for free is no disincentive either - who wants to modify the code
rather than just use it without trouble?

So the only disincentives are the cost to obtain the software, which is always
rolled into the purchase cost even in non-open-source software, and - and -
that's it. The cost to use the software is roughly the same, and most
customers have no interest in the source code at all.

Being the one to provide what does interest them is where you make money. GPL
does not stand in the way of that at all.

 

[Joshua Cranmer]

The main difference between BSD and GPL is that BSD doesn't preclude use in
for-profit software. If that's your intent, it's a good choice.

A better way of phrasing it is that GPL code begets only GPL code,
whereas BSD code can be used more widely. GPL is actually rather crappy
for many libraries, since you can't use GPL code in many major open
source projects.

 

[Arne Vajhøj]

The main difference between BSD and GPL is that BSD doesn't preclude use in
for-profit software. If that's your intent, it's a good choice.

The GPL license does not preclude that.

But the terms of the GPL license combined with cost minimizing
users makes certain business models not working.

Arne

 

[Arne Vajhøj]

I'd really like to understand the various FOSS licence issues better, so
please forgive the question if it's a diversion:

Does this quote mean that, although one can legally sell modified code,
there is little incentive for anyone to pay for it, since they can
obtain, use, modify, and redistribute for free?

For a traditional software sale model "here is a CD with the software
and a valid license key - if you want support then you have to
pay extra", then YES.

There are several companies selling GPL software and making money
using different business models.

Arne

 

[Arne Vajhøj]

In dealing with Java, OpenJDK, and Clojure stuff in recent months I'd
come to suspect that open source licensing is itself a source of trouble.
Notably, Clojure's license is incompatible with the GPL, under which
large chunks of other open source software is licensed.

And so what?

This means that you can not modify the Clojure compiler using
GPL code.

Very few libraries are GPL. LGPL and GPL with linking exception
was invented for libraries.

And it has no impact on people writing apps in Clojure.

So I decided to do a little reading on copyright in general. Why does it
even exist? The nominal purpose, it turns out, is to "promote the
progress of science and the useful arts" by providing a way for the
creators of any popular or important work to ensure remuneration,
basically. Which smells suspiciously like a grant of monopoly -- which,
barring the notion of "fair use", it basically is.

If everybody could copy software exactly as they wanted then
I am pretty sure that the software industry would be in a very
poor shape.

Furthermore there are
a LOT of blogs out there expressing serious criticism of copyright,
pointing out that fair use is not in most cases a workable defense even
when it should be, and that copyright has been twisted away from its
original purpose by corporations seeking to extend and tighten their
control over lucrative media and software properties.

Sounds like blogs from teenagers that wants to be able to download
everything for free and have parents to pay the bills.

It thus seems that copyright was twisted away from its original purpose,
to which it might have been poorly suited to begin with, and open source
licenses try to twist it back toward that purpose.

Not really.

Open source use copyright the exact same way as closed source. The
only way.

Open source has different license terms than closed source, but that
does not change the copyright as such.

Upshot: I think I'll use BSD-type licenses for now. They're compatible
with almost anything, license-wise, including the GPL and Clojure's
license, and have a decent level of respect in the open source world. I
don't think I can go far wrong if I use the two-clause BSD license on my
code.

When you have copyright for the code, then you decide on the
license.

I think that you can generally divide in:
- strong copyleft (GPL)
- weak copyleft (LGPL etc.)
- permissive (Apache, BSD etc.)

Due to Apache's strong involvement in Java technologies, then I
think there are more Java code under Apache than BSD license.

Arne

 

[ClassCastException]

Does this quote mean that, although one can legally sell modified code,
there is little incentive for anyone to pay for it, since they can
obtain, use, modify, and redistribute for free?

Red Hat makes quite a bit of money selling copies of GPL'd software on
physical media.

This might have something to do with the fact that Aquafina makes quite a
bit of money bottling and selling stuff that pretty much all of their
potential customers can get out of a faucet for free.

It might also have something to do with the fact that the entertainment
industry is not, contrary to popular belief, losing revenues to piracy.
Declining sales of things like DVDs and recorded music have a complex web
of causes, in which the effects of online piracy are not reliably
different from zero according to the statistical studies.

It *is* possible to compete with free, generally by segmenting the market
and taking the high end somehow. Image, branding, convenience, or some
other thing can differentiate you from the free competition. For example,
bottled water comes complete with a new, clean bottle to carry it in and
can be an image thing. Red Hat sold on a CD is as simple to get and
install as buy in store, stick in disk drive, run, similar to other store-
bought software, without having to do anything special like download gigs
of .iso possibly over a shoddy line and then figure out how to turn
a .iso file into a working bootable install disc and etc., so there it's
convenience. If you have the money, buying a DVD is probably more
convenient than trying to find a good, non-foreign-language rip on
BitTorrent and buying a Blu-Ray is almost certainly more convenient than
trying to find a good, non-foreign-language HIGH-DEF rip on BT. CDs are
pretty much toast but a 99 cent iTunes download is more convenient for
anyone who owns a credit card than an attempt to find and download a good
rip on LimeWire.

The moral of the story: the GPL absolutely is NOT incompatible with
profiting from selling software, NOT EVEN if you restrict your business
model to selling copies. When you broaden that to include selling support
and ancillary merchandising of various kinds, it's even more possible.

Someone suggested game content, but that's also ultimately copyable --
unless it resides server-side. An MMORPG could be entirely GPL'd,
including the server code, and even without any copyright enforcement on
the game content, and still be easily profitable. First, you run servers
time and bandwidth on which are scarce and charge for this. Competitors
can duplicate your service and, with some effort, duplicate your content
more-or-less, but any such competitor can be kept ahead of by developing
fresh content (necessary anyway to hang onto long-time players). On top
of that if your game gets popular enough you can make a sideline selling
plush toys, action figures, or whatnot of game characters, potentially.
If these are not trademarked or otherwise "protected" you'll have
competition there too, but there's plenty of competition selling, say,
chicken nuggets or chairs, but plenty of money to be made in the chicken
nugget and chair industries too, and your game's popularity will grow the
market for this merchandise and, with it, your slice of the merchandising
pie for those characters, even if that slice is not the whole pie.
Indeed, almost anything you or your competitors do will grow the overall
market and cause all of you to sell more of everything.

A strange game -- the only losing move is not to play.

 

[ClassCastException]

And so what?

This means that you can not modify the Clojure compiler using GPL code.

Very few libraries are GPL. LGPL and GPL with linking exception was
invented for libraries.

And it has no impact on people writing apps in Clojure.

Actually, it does; if you GPL Clojure code and distribute it it will
violate at least one license because the GPL'd code will link against
(and thus try to force the "viral" GPL upon) code that comes with Clojure
and has a GPL-incompatible license.

You can add a linking exception to the GPL on your Clojure code that
permits linking against Clojure libraries and the like without requiring
the GPL attach to those, but this has two problems:

1. If existing, say, Java code is GPL, and you want to use it in your
Clojure project, you still can't, since the GPL without linking
exception will "contaminate" your own code and then the base Clojure
code that's not GPLable.
2. This, and similar situations, will lead to the proliferation of
hundreds of almost-GPLs with different and incompatible linking
exceptions.

In hindsight, the linking requirement in the GPL, which was made in the
days of C, was a big mistake. But it's one it's apparently way too late
to fix.

The GPL v3 apparently tries. It has something in it about an automatic
linking exception for the code's programming language's "base libraries",
but someone said this was vague enough or otherwise had loopholes that
made it impossible to confidently apply to Clojure's GPL-incompatible
libraries.

If everybody could copy software exactly as they wanted then I am pretty
sure that the software industry would be in a very poor shape.

I actually doubt this; I think it would work rather differently from now
in some ways, but that people would have found a way to make it work and
to profit in it. Plenty of businesses profit from open source software in
various ways, including by selling support or simply by funding
development of open source software that they use in-house and get
productivity gains from, and, by funding it, get more influence to have
features they'd find useful added and the bugs that particularly harm
their productivity prioritized.

Sounds like blogs from teenagers that wants to be able to download
everything for free and have parents to pay the bills.

I have my doubts whether Against Monopoly (run by a pair of degreed
economists) and Techdirt (run by a successful dot-com entrepreneur) are
"from teenagers that want to be able to download everything for free and
have parents to pay the bills".

Not really.

Open source use copyright the exact same way as closed source. The only
way.

Open source has different license terms than closed source, but that
does not change the copyright as such.

I'm sorry you don't seem to get what I'm driving at.

Copyright was born from the theory that letting authors of "writings and
discoveries" close off access and control the use of their work, e.g. to
set up a tollbooth, would promote progress.

At least in the case of software, this turned out to be wrong (in some
opinions), and the GPL's "copyleft" was specifically designed to force
copyright to do the reverse: force access open as widely as possible, by
requiring publication of the source code and disallowing monopoly. The
theory this time being that maximizing access and minimizing any one
vendor's control over program code would promote progress.

Judging by the stellar progress made in improving Linux since its
inception, copyleft is at least as viable as traditional exclusive
copyright in promoting progress in software.

However, both have proven capable of getting in the way in various
(separate sets of) situations.

 

[Tom Anderson]

Actually, it does; if you GPL Clojure code and distribute it it will
violate at least one license because the GPL'd code will link against
(and thus try to force the "viral" GPL upon) code that comes with Clojure
and has a GPL-incompatible license.

Wrong. The GPL does not forbid you from linking against any libraries at
all. It (effectively) forbids you from *redistributing* the *products* of
linking against libraries that are not GPL'd. Do you want to distribute
binaries that include both your GPL'd Clojure code and the Clojure
runtime? No. So you're fine.

This is an important point: *none* of the open-source licenses restrict
what you do with code on your own machine, or inside your own company. The
*only* apply to *redistribution* of the code.

tom

 

[David Lamb]

Copyright was born from the theory that letting authors of "writings and
discoveries" close off access and control the use of their work, e.g. to
set up a tollbooth, would promote progress.

Well, that theory *used* to be true; Dickens apparently got no royalties
from "pirated" US editions of his works. But that was a long time ago
when the world was very different.

 

[ClassCastException]

Wrong. The GPL does not forbid you from linking against any libraries at
all. It (effectively) forbids you from *redistributing* the *products*
of linking against libraries that are not GPL'd. Do you want to
distribute binaries that include both your GPL'd Clojure code and the
Clojure runtime? No.

Yes. Any packaging of an application for end-user use (that an end-user
is realistically going to be able to install easily) is going to include
the runtimes and thus violate one license or both. The effect is for
GPL'd Clojure code to effectively be stamped "hacker use only" and be
inaccessible for normal, end-user use.

Use it privately? Sure. Share with other Clojure hackers? Ditto. Make a
killer game with GPL'd Clojure code and post it somewhere, or write and
publish something to beat Photoshop *and* the GIMP, or whatever? Uh-uh,
sorry, no can do.

 

[ClassCastException]

Well, that theory *used* to be true; Dickens apparently got no royalties
from "pirated" US editions of his works. But that was a long time ago
when the world was very different.

Interestingly, Dickens actually profited from this. Hence why I said that
that was the *theory* behind copyright; there is some evidence that that
theory was false, or at best semi-true. In actual practice, the existence
of art of many kinds for thousands of years before anyone thought of the
concept of a copyright is perhaps the strongest evidence that it wasn't
ever actually needed. A case for it being needed for some very expensive
modern art forms such as blockbuster movies might be made. Open source
development models, including with licenses like BSD that permit closed-
source derivative works, point to its *not* being necessary for software
innovation to occur (without copyright software development would
probably be very similar to how it actually is in BSD-like-license-
dominated ecosystems, such as those surrounding BSD Unix itself and
Apache; there could be some closed-source derivative works but this
potential doesn't seem to have killed BSD or Apache).

Perhaps even more interesting is that a similar case can be made for
getting rid of patents on most everything except pharmaceuticals, where
they seem both most needed (drug development costs make $200 million
blockbuster movie productions look cheap at times) and most controversial
(artificially inflated drug prices can actually *kill*, unlike
artificially inflated movie prices or artificially inflated software
prices).

Cleverer minds than mine continue to argue, cogently at times and quite
acrimoniously at times, both sides of the debate, in the comments of both
the blogs I named elsewhere in this thread. (And, at one of the blogs,
there's also Twisted ... apparently taking a particularly radical anti-
copyright anti-patent position ... for whatever that's worth.)

Meanwhile open source continues to win practical victories. The recent
school laptop scandal, for example: the initial scandal just cries out
for owner-override rights for hardware owners, so against any species of
so-called "trusted computing" such as has been pushed at times by
Microsoft as a way of limiting "piracy" (and such as has quietly been
actually implemented in game consoles, DVD/BluRay drives/players, and
Apple's iPod/iPhone/iPad portables); the later revelation of serious
security flaws in the "remote administration" software that was snuck
onto those machines points to the dangers of using closed source remote
administration, operating system, or security software of any kind: at
best you may have severe security flaws hidden from peer review but
eventually findable by a determined black hat; at worst the nightmare
scenario from the movie "The Net" where some popular closed-source
firewall software or similarly turns out to have a deliberate back door
and its makers, once it becomes very widely deployed, start using it in a
nefarious world-domination plot or to pull off massive heists or
whatever. (Imagine a deliberate back door in Windows Vista and a
"Praetorian" conspiracy within Microsoft. Shudder. Install Linux. Sigh
with relief. Recall that many government and other trusted-by-the-public
computer systems and networks are riddled with Microsoft software.
Shudder. Note that Apple has even tighter control over the iFoo
ecosystem. Shudder. Ditch your iPhone for an Android phone. Sigh with
relief. Watch as a controversy breaks out over Amazon's retroactive
unpurchasing of Kindle customers' copies of Nineteen Eighty-Four by
Amazon and how all their annotations unexisted because Amazon decided
they were doubleplusungood, or something like that. Shudder. Ditch Kindle
for ... er, wait, dammit!, the iPad is just as evil. Groan and use the
Android phone with its inferior reading display and wait for a googlePad
or similar device to hit the shelves. Pirate what isn't available at
Project Gutenberg, because officially-sanctioned ebooks aren't available
for Android platforms, at least not yet; maybe buy a paperback copy of
each pirated book so the authors get some money. Or perhaps just lug
actual paper books around and forget e-reading for now. Sigh with relief;
now your books can't be unpublished by Amazon, Apple, or anybody else
short of jackbooted thugs breaking down your door and prying them from
your cold, dead fingers, and you trust your 12-gauge named Old Betsy
together with an electric fence, basic property rights, and the 1st, 2nd,
and 4th Amendments to keep any wannabe Guy Montagues at bay. Remember how
most of the AI-takeover apocalypses also have a similar element --
defense contractors buying from US Robotics in I, Robot, defense
contractors buying from Cyberdyne in Terminator, etc., and these having
intentional backdoors in them that let Viki/Skynet/Colossus/whatever take
over. Shudder.)

 

[Stefan Ram]

So the GPL is, in practice (not in theory), incompatible with for-profit

If you put a box in a shop with some software for $329,
people who think that it addresses their needs will buy it.
It might contain a sheet of paper with the GPL and directory
with the source code. Most consumers will not read either of
them. There are bought many goods in our world that one
also might get for free by some other means.

if you make a big, expensive piece of code that you plan to
sell to a dozen big companies, you can use the GPL, because
none of your customers would be keen on redistributing the
code under the GPL

This would entitle /you/ to redistribute it, and your
customers might not like this. Also, once they have the
software, how do you make them pay you? The GPL already
entitles them to legally own it without any payment to you.

Also, theory has it that big money resides in support and maintenance
contracts. The software is then some kind of commercial argument, and
you can give it for free since users automatically become potential
customers for your support and maintenance activity.

Or for the support and maintenance of any other skilled party ...

 

[David Lamb]

Also, once they have the
software, how do you make them pay you? The GPL already
entitles them to legally own it without any payment to you.

Well, contract law would still apply. "I'll hand over this disk and
you'll pay me" with suitable legalize boilerplate ought to mean they
have to pay you. I suppose one could start an argument about the seller
not having the money to sue.

 

[ClassCastException]

If you put a box in a shop with some software for $329, people who
think that it addresses their needs will buy it. It might contain a
sheet of paper with the GPL and directory with the source code. Most
consumers will not read either of them. There are bought many goods in
our world that one also might get for free by some other means.

Perhaps. Though at that price point they might feel ripped off if they
later learned they could have gotten it for free elsewhere.

On the other hand I can see someone spending even $40 on a CD that's nice
and easy to install and considering that okay even if they find they
could have had it for free as a downloadable .iso file to figure out what
to do with to install it. People will willingly pay, sometimes quite a
lot, for convenience. Hence fast food, more expensive than home cooking
and often not as good yet very very profitable.

This would entitle /you/ to redistribute it, and your customers might
not like this. Also, once they have the software, how do you make them
pay you? The GPL already entitles them to legally own it without any
payment to you.

Obviously you'd structure the transaction as an up-front sale: swap the
money for a disc.

Or for the support and maintenance of any other skilled party ...

Still gives you an incentive to develop the code:

1. The more valuable you make the software, the larger the support pie,
and the larger the support pie, the larger your slice of it,
regardless of what percentage of the whole pie that slice might be.
2. The more of it you've developed, the better you know the codebase
relative to any other skilled party, and the better you know the
codebase relative to any other skilled party, the better you can make
your support offering compared to anyone else's. This makes your slice
of the pie larger.

So, you can potentially get yourself a larger slice of a larger pie by
participating in developing the open-source software, compared to if you
let other people do all the development work on it. Developing it builds
in-house expertise with that software, and it's the time of your experts
that you're selling; making those experts better experts makes that time
more valuable, and so does making the thing they're experts on more
popular.

Make that time more valuable and you can attract more customers so you
can sell more of it, charge more for it, or whatever.

 

[Arne Vajhøj]

Red Hat makes quite a bit of money selling copies of GPL'd software on
physical media.

This might have something to do with the fact that Aquafina makes quite a
bit of money bottling and selling stuff that pretty much all of their
potential customers can get out of a faucet for free.

Not a good comparison.

When you buy RHEL from Redhat instead of downloading Centos, then
you get support from Redhat.

It might also have something to do with the fact that the entertainment
industry is not, contrary to popular belief, losing revenues to piracy.
Declining sales of things like DVDs and recorded music have a complex web
of causes, in which the effects of online piracy are not reliably
different from zero according to the statistical studies.

That "fact" is very disputed.

The moral of the story: the GPL absolutely is NOT incompatible with
profiting from selling software, NOT EVEN if you restrict your business
model to selling copies.

Companies making monet on GPL usually do it by selling support
or by dual license (GPL and commercial).

The GPL license does not prohibit it, but the terms of GPL
plus basic economics do that you need something other than
selling copies to prosper.

Arne

 

[Arne Vajhøj]

If you put a box in a shop with some software for $329,
people who think that it addresses their needs will buy it.
It might contain a sheet of paper with the GPL and directory
with the source code. Most consumers will not read either of
them. There are bought many goods in our world that one
also might get for free by some other means.

The word will get around.

Arne