Toward Community-Oriented, Public & Transparent Copyleft Policy Planning

[ A similar version was crossposted on Conservancy's blog. ]

More than 15 years ago, Free, Libre, and Open Source Software (FLOSS) community activists successfully argued that licensing proliferation was a serious threat to the viability of FLOSS. We convinced companies to end the era of “vanity” licenses. Different charities — from the Open Source Initiative (OSI) to the Free Software Foundation (FSF) to the Apache Software Foundation — all agreed we were better off with fewer FLOSS licenses. We de-facto instituted what my colleague Richard Fontana once called the “Rule of Three” — assuring that any potential FLOSS license should be met with suspicion unless (a) the OSI declares that it meets their Open Source Definition, (b) the FSF declares that it meets their Free Software Definition, and (c) the Debian Project declares that it meets their Debian Free Software Guidelines. The work for those organizations quelled license proliferation from radioactive threat to safe background noise. Everyone thought the problem was solved. Pointless license drafting had become a rare practice, and updated versions of established licenses were handled with public engagement and close discussion with the OSI and other license evaluation experts.

Sadly, the age of license proliferation has returned. It's harder to stop this time, because this isn't merely about corporate vanity licenses. Companies now have complex FLOSS policy agendas, and those agendas are not to guarantee software freedom for all. While it is annoying that our community must again confront an old threat, we are fortunate the problem is not hidden: companies proposing their own licenses are now straightforward about their new FLOSS licenses' purposes: to maximize profits.

Open-in-name-only licenses are now common, but seem like FLOSS licenses only to the most casual of readers. We've succeeded in convincing everyone to “check the OSI license list before you buy”. We can therefore easily dismiss licenses like Common Clause merely by stating they are non-free/non-open-source and urging the community to avoid them. But, the next stage of tactics have begun, and they are harder to combat. What happens when for-profit companies promulgate their own hyper-aggressive (quasi-)copyleft licenses that seek to pursue the key policy goal of “selling proprietary licenses” over “defending software freedom”? We're about to find out, because, yesterday, MongoDB declared themselves the arbiter of what “strong copyleft” means.

Understanding MongoDB's Business Model

To understand the policy threat inherent in MongoDB's so-called “Server Side Public License, Version 1”, one must first understand the fundamental business model for MongoDB and companies like them. These companies use copyleft for profit-making rather than freedom-protecting. First, they require full control (either via ©AA or CLA) of all copyrights in the work, and second, they offer two independent lines of licensing. Publicly, they provide the software under the strongest copyleft license available. Privately, the same (or secretly improved) versions of the software are available under fully proprietary terms. In theory, this could be merely selling exceptions: a benign manner of funding more Free Software code — giving the proprietary option only to those who request it. In practice — in all examples that have been even mildly successful (such as MongoDB and MySQL) — this mechanism serves as a warped proprietary licensing shake-down: “Gee, it looks like you're violating the copyleft license. That's a shame. I guess you just need to abandon the copyleft version and buy a proprietary license from us to get yourself out of this jam, since we don't plan to reinstate any lost rights and permissions under the copyleft license.” In other words, this structure grants exclusive and dictatorial power to a for-profit company as the arbiter of copyleft compliance. Indeed, we have never seen any of these companies follow or endorse the Principles of Community-Oriented GPL Enforcement. While it has made me unpopular with some, I still make no apologies that I have since 2004 consistently criticized this “proprietary relicensing” business model as “nefarious”, once I started hearing regular reports that MySQL AB (now Oracle) asserts GPL violations against compliant uses merely to scare users into becoming “customers”. Other companies, including MongoDB, have since emulated this activity.

Why Seek Even Stronger Copyleft?

The GNU Affero General Public License (AGPL) has done a wonderful job defending the software freedom of community-developed projects like Mastodon and Mediagoblin. So, we should answer with skepticism a solitary for-profit company coming forward to claim that “Affero GPL has not resulted in sufficient legal incentives for some of the largest users of infrastructure software … to participate in the community. Many open source developers are struggling with a similar reality”. If the last sentence were on Wikipedia, I'd edit it to add a Citation Needed tag, as I know of nomulti-copyright-held or charity-based AGPL'd project that has “struggled with this reality”. In fact, it's only a “reality” for those that engage in proprietary relicensing. Eliot Horowitz, co-founder of MongoDB and promulgator of their new license, neglects to mention that.

The most glaring problem with this license, which Horowitz admits in his OSI license-review list post, is that there was no community drafting process. Instead, a for-profit company, whose primary goal is to use copyleft as a weapon against the software-sharing community for the purpose of converting that “community” into paying customers, published this license as a fait accompli without prior public discussion of the license text.

If this action were an isolated incident by one company, ignoring it is surely the best response. Indeed, I urged everyone to simply ignore the Commons Clause. Now, we see a repackaging of the Commons Clause into a copyleft-like box (with reuse of Commons Clause's text such as “whose value derives, entirely or substantially, from the functionality of the Software”). Since both licenses were drafted in secret, we cannot know if the reuse of text was simply because the same lawyer was employed to write both, or if MongoDB has joined a broader and more significant industry-wide strategy to replace existing FLOSS licensing with alternatives that favor businesses over individuals.

The Community Creation Process Matters

Admittedly, the history of copyleft has been one of slowly evolving community-orientation. GPLv1 and GPLv2 were drafted in private, too, by Richard Stallman and FSF's (then) law firm lawyer, Jerry Cohen. However, from the start, the license steward was not Stallman himself, nor the law firm, but the FSF, a 501(c)(3) charity dedicated to serve the public good. As such, the FSF made substantial efforts in the GPLv3 process to reorient the drafting of copyleft licenses as a public policy and legislative process. Like all legislative processes, GPLv3 was not ideal — and I was even personally miffed to be relegated to the oft-ignored “GPLv3 Discussion Committee D” — but the GPLv3 process was undoubtedly a step forward in FLOSS community license drafting. Mozilla Corporation made efforts for community collaboration in redrafting the MPL, and specifically included the OSI and the FSF (arbiters of the Open Source Definition and Free Software Definition (respectively)) in MPL's drafting deliberations. The modern acceptable standard is a leap rather than a step forward: a fully public, transparent drafting process with a fully public draft repository, as the copyleft-next project has done. I think we should now meet with utmost suspicion any license that does not use copyleft-next's approach of “running licensing drafting as a Free Software project”.

I was admittedly skeptical of that approach at first. What I have seen six years since Richard Fontana started copyleft-next is that, simply put, the key people who are impacted most fundamentally by a software license are mostly likely to be aware of, and engage in, a process if it is fully public, community-oriented, and uses community tools, like Git.

Like legislation, the policies outlined in copyleft licenses impact the general public, so the general public should be welcomed to the drafting. At Conservancy, we don't draft our own licenses , so our contracts with software developers and agreements with member projects state that the licenses be both “OSI-approved Open Source” and “FSF-approved GPL-compatible Free Software”. However, you can imagine that Conservancy has a serious vested interest in what licenses are ultimately approved by the OSI and the FSF. Indeed, with so much money flowing to software developers bound by those licenses, our very charitable mission could be at stake if OSI and the FSF began approving proprietary licenses as Open, Free, and/or GPL-compatible. I want to therefore see license stewards work, as Mozilla did, to make the vetting process easier, not harder, for these organizations.

A community drafting process allows everyone to vet the license text early and often, to investigate the community and industry impact of the license, and to probe the license drafter's intent through the acceptance and rejection of proposed modified text (ideally through a DVCS). With for-profit actors seeking to gain policy control of fundamental questions such as “what is strong copyleft?”, we must demand full drafting transparency and frank public discourse.

The Challenge Licensing Arbiters Face

OSI, FSF, and Debian have a huge challenge before them. Historically, the FSF was the only organization who sought to push the boundary of strong copyleft. (Full disclosure: I created the Affero clause while working for the FSF in 2002, inspired by Henry Poole's useful and timely demands for a true network services copyleft.) Yet, the Affero clause was itself controversial. Many complained that it changed the fundamental rules of copyleft. While “triggered only on distribution, not modification” was a fundamental rule of the regular GPL, we as a community — over time and much public debate — decided the Affero clause is a legitimate copyleft, and AGPL was declared Open Source by OSI and DFSG-free by Debian.

That debate was obviously framed by the FSF. The FSF, due to public pressure, compromised by leaving the AGPL as an indefinite fork of the GPL (i.e., the FSF did not include the Affero clause in plain GPL. While I personally lobbied (from GPLv3 Discussion Committee D and elsewhere) for the merger of AGPL and GPL during the GPLv3 drafting process, I respect the decision of the FSF, which was informed not by my one voice, but the voices of the entire community.

Furthermore, the FSF is a charity, chartered to serve the public good and the advancement of software freedom for users and developers. MongoDB is a for-profit company, chartered to serve the wallets of its owners. While MongoDB employees1 (like those of any other company) should be welcomed on equal footing to the other unaffiliated individuals, and representatives of companies, charities, and trade-associations to the debate about the future of copyleft, we should not accept their active framing of that debate. By submitting this license to OSI for approval without any public community discussion, and without any discussion whatsoever with the key charities in the community, is unacceptable. The OSI should now adopt a new requirement for license approval — namely, that licenses without a community-oriented drafting process should be rejected for the meta-reason of “non-transparent drafting”, regardless of their actual text. This will have the added benefit of forcing future license drafters to come to OSI, on their public mailing lists, before the license is finalized. That will save OSI the painstaking work of walking back bad license drafts, which has in recent years consumed much expert time by OSI's volunteers.

Welcoming All To Public Discussion

Earlier this year, Conservancy announced plans to host and organize the first annual CopyleftConf. Conservancy decided to do this because Conservancy seeks to create a truly neutral, open, friendly, and welcoming forum for discussion about the past and future of copyleft as a strategy for defending software freedom. We had no idea when Karen and I first mentioned the possibility of running CopyleftConf (during the Organizers' Panel at the end of the Legal and Policy DevRoom at FOSDEM 2018 in February 2018) that multiple companies would come forward and seek to control the microphone on the future of copyleft. Now that MongoDB has done so, I'm very glad that the conference is already organized and on the calendar before they did so.

Despite my criticisms of MongoDB, I welcome Eliot Horowitz, Heather Meeker (the law firm lawyer who drafted MongoDB's new license and the Commons Clause), or anyone else who was involved in the creation of MongoDB's new license to submit a talk. Conservancy will be announcing soon the independent group of copyleft experts (and critics!) who will make up the Program Committee and will independently evaluate the submissions. Even if a talk is rejected, I welcome rejected proposers to attend and speak about their views in the hallway track and the breakout sessions.

One of the most important principles in copyleft policy that our community has learned is that commercial, non-commercial, and hobbyist activity3 should have equal footing with regard to rights assured by the copyleft licenses themselves. There is no debate about that; we all agree that copyleft codebases become meeting places for hobbyists, companies, charities, and trade associations to work together toward common goals and in harmony and software freedom. With this blog post, I call on everyone to continue on the long road to applying that same principle to the meta-level of how these licenses are drafted and how they are enforced. While we have done some work recently on the latter, not enough has been done on the former. MongoDB's actions today give us an opportunity to begin that work anew.

While Conservancy does not draft any main FLOSS license texts, Conservancy does help with the drafting of additional permissions upon the request of our member projects. Note that additional permissions (sometimes called license exceptions) grant permission to engage in activities that the main license would otherwise prohibit. As such, by default, additional permissions can only make a copyleft license weaker, never stronger.

1 , 3 I originally had “individual actors” here instead of “hobbyist activity”, and additionally had expressed poorly the idea of welcoming individuals representing all types of entities to the discussion. The miscommunication in my earlier text gave one person the wrong impression that I believe the rights of companies should be equal to the rights of individuals. I fundamentally that companies and organizations should not have rights of personhood and I've updated the text in an effort to avoid such confusions.