From Tolstoy to Tinker Bell, Down from Berkeley to Carmel

In the news, IBM is retiring old OSI-approved licenses and consolidating around the Eclipse Public License.   Good for them.  People who are running open source projects tend not to want to become legal experts, after all.   There is a contrary point of view, of course, that license proliferation is not such a problem as the best (favoured, admired, desired) licenses will be used more frequently and become the most well known.   The estimable Stephen O’Grady of RedMonk raises good points about the need not to get one’s knickers in a twist about the large number of open source licenses that exist – Occam’s soothing balm, if you will.

And yet, and yet, I don’t necessarily hold that the FLOSS crowd is always so wise in its license choices.  Specifically, I do not think that one should conclude that the slow uptake of the Gnu Affero General Public License (AGPL) means that the concerns it seeks to address are not important ones to FLOSS developers – to wit, closing the web service “loophole”, where those delivering a service using software that is distributed under a strong copyleft are not obliged to share any modifications they make in order to offer that service.

There was no better illustration of the debate than the Eben Moglen – Tim O’Reilly set-to at OSCON in 2007.  Briefly, Mr O’Reilly asserts that open source licenses are no longer relevant in a webservice world.  Mr Moglen said, (from memory), that Web 2.0 was “just thermal noise”, i.e. unimportant, compared to the wider question of Free Software.  And this is my point: one of these gentlemen will be right, one wrong, and many people are influenced by the thinking of both of them, embracing a contradiction.

On the one hand, the Free Software “funamentalists” are very clear in what constitues freedom: it is the rights that they are afforded with respect to software that runs on a computer that they own.  And suddenly, the “fundamentalists” seem quite modest in their ambitions – reasonable, even.  Richard Stallman doesn’t seem to care about what Google does with Linux code, because he is not interested in using the “trap” of cloud computing.  He is now becoming interested in the “Javascript Trap” (another Sun trademark being used with a non-approved noun, one suspects), but the Free Software movement’s relationship with webservices remains essentially orthogonal.

Many people in the the open source world, however, are more concerned with promoting successful collaborative creation, and are concerned about what impact the webservice loophole will have on what we might call the “open source incentive model”.   That is because this is what open source is – it is a codification of Free Software princples aimed at stimulating collaborative software development.  This does not mean that open source is either inherently capitalist, as Matt Asay is prone to argue, nor inherently socialist, as the straw man that Matt Asay attacked (did not) argue.

Now, the problem is this: many people in the Open Source community are influenced by the thinking of the Free Software community, and have a tendency to follow it, while distancing themselves from the “fundamentalism” (which is, of course, no such thing, it is simply that something is free or it is not, while a program may contain open and closed components, hence, there are gradations of open source).  But the Free Software movement has less to say about the issue of webservices than the Open Source movement might do.   There is, in a sense, a vacuum of philosophical leadership.

To make matters worse, license choices are havily influenced by previous license choices.  The GPL remains extraordinarily popular: heck, the GPL v2 remains extraordinarily popular.  People do not want to get into complex territory of compatibility issues, and they understand that the GPL has a stirling reputation.  What’s more, when making license choices, developers will be concerned with the welfare of their own project (and rightly so).  And so, I find it hard to argue that the aggregation license choices in favour of strong copyleft licenses which do not close the webservice loophole means that the loophole is not a serious and present concern.

At FOSDEM this year, Mark Surman gave a talk on what Free means in the context of cloud computing (if anyone has a link to a video, please let me know).  I understand that it did not generate a great deal of debate, possibly because we do not yet have a collective understanding of what the issues are.  In my view, it’s high time we start to develop one.

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