September 26, 2006  ·  Lessig

The Free Software Foundation has launched a public discussion on proposed changes to the Free Document License, a license designed “can be used for any textual work” but which, in the world enriched by Wikipedia, now attempts to license all creative work. I’ll be studying the changes carefully, and will post my own comments, both here and there, but I really would encourage people to do the same. Please spread the word broadly.

This step continues the process the FSF launched with the GPLv3. And while that license has become increasingly controversial (see the Kernel Developers‘ post, the FSF’s response, Linus Torvald’s latest), there should be no controversy about the good work of FSF in running this licensing process so transparently. They’ve got very cool (GPLd) code enabling the public comments. We at CC are keen to get our hands on it (it’s not yet distributed) to use in later revisions of our licenses. (We’ve done comments before, but the old fashioned way).

The real challenge here will be Richard Stallman’s. His work helped launch important movements of freedom — free software, most directly; free culture, through inspiration, and examples such as Wikipedia. It also helped launch a movement he’s not happy about, the Open Source Software Movement. Much of the latter builds on the former. And these movements have been joined by many who share his values, some more, some less. (Again, see Torvalds). These movements have built much more than he, or any one person, could ever have done. So his challenge is whether he evolves these licenses in ways that fit his own views alone, recognizing those views deviate from many important parts of the movement he started. Or whether he evolves these licenses to support the communities they have enabled. This is not a choice of principle vs compromise. It is a choice about what principle should govern the guardians of these licenses.

I was struck as I’ve been thinking about this by an obvious analogy: At a recent launch of Creative Commons licenses in a Latin American country, an artist described what it was like to watch her work remixed on ccMixter. As she described, at first “it is mine”; then it becomes “less mine.” When “less mine,” it would be wrong, she suggested, for the artist to exercise the complete and personal control over the object as when it was just “mine.”

E.g., we all (should) see why it’s wrong for the Margaret Mitchell estate to threaten remixers of “Gone with the Wind” with lawsuits, that story having become so central to the culture of America, and especially the American south. Though I would certainly have supported her effort to sue a publisher who changed a final chapter when the book was first published. This difference in attitudes about ownership is, imho, all the difference in the world — hardest for the artists, or “owners” as some people like to say, to recognize.

  • Simon Pole

    I have read this post a few times, and I cannot pinpoint exactly what you believe Stallman’s mistake is. It appears to be that he is letting down a “community” by insisting on a certain principles that appear to be held by no one other than himself.

    Prof. Lessig, could you specify who exactly comprises the community he is letting down.

    Also, what is your evidence that these principles belong only to Stallman, and not to some other “community” that might hold them.

    I love your books and everything you’ve done for life online, but it seems you siding with the establishment (Linux kernel coders, big companies using GPL 2 software) vs. the average users (who with GPL 3 should have the ability to run/modify GPL’d software under almost all circumstances).

    Does this not mark a switch in your approach to these issues?

  • http://www.digitalproductions.co.uk Crosbie Fitch

    The key difference is one of dedicated principle versus economic pragmatism.

    Stallman is constructing specific licenses to restore freedoms removed by copyright, patents, DRM/DMCA, etc.

    He is not simply providing an unprincipled pix & mix selection of licenses that may appeal to certain people for certain markets, e.g. where permission to copy may be a promotional advantage, but not if anyone makes any money out of it (“That money is mine!”).

    This is the fundamental difference that divides the ‘moralists’ from the ‘pragmatists’. On the first hand we have those that say that “The public’s freedom shall not be suspended, even for an economic incentive to publishers”, and on the other hand we have those that say “Licenses that require visibility of source code in published derivatives can sometimes make commercial sense”.

    Obviously, Stallman cares not one whit about the latter group, and has argued at length for the last few decades on the unfortunately subtle difference between ‘free software’ (restoring freedom to the public) and ‘open source software’ (requiring visibility of source code).

    So, the ‘Open Source’ community cannot be let down by Stallman, because it’s not his community – they simply have a coincidentally mutual interest in the GPL.

    The ‘free software’ community on the other hand, is in extremely good hands. It has every reason to remain confident that Stallman will continue to refine the GPL to shore it up against all the cunning mechanisms people have been trying to use to remove the freedoms the GPL restores to the public.

    If there’s any blind spot that Stallman has, it’s enshrining his ‘four freedoms’ as unassailable dogma. Unfortunately, he’s in danger of losing sight of the public’s rights to truth and privacy – especially the latter.

  • RM

    I too think that the GPLv3 comment system looks like a fascinating piece of software. Almost identical to a prototype I developed for something similar. Are there any details on when it will be released, what it will called etc?

  • http://tieguy.org/ Luis Villa

    It is available for download, and I believe it has been since day 1 of the GPL v3 process:
    http://gplv3.fsf.org/comments/source/stet-latest.tar.bz2

    Honestly I was surprised CC did not use it for the CC v3 process- the GPL process has been much more orderly and meaningfully deliberative than CC’s process, I’m afraid.

    See also the similar Commentary:
    http://pythonpaste.org/commentary/

  • http://gnuosphere.blogspot.com Peter Rock

    I don’t understand the “controversy” over GPLv3. The intent driving this license is perfectly reasonable. Unfortunately, many either are, or act as if, they are oblivious to the intent of the FSF.

    I had several email exchanges with Linus over GPLv3 and what he told me was very reasonable IF we lived in a world without oppressive laws. Once again, Stallman has proven himself to be very aware of the actual legal landscape and is creating a pragmatic defense to oppressive laws (e.g. the DMCA).

    After several emails where Linus explained what he thought one should do to combat DRM backed by Trusted Computing, I asked him the following question…

    You [Linus] say buyers should make clear their desire for hackable hardware and that they should not pay for hardware they cannot modify. Fine, but I the copyright holder am going to take you, the hardware manufacturer, to court if you dare make this “hackable hardware” and have you charged for “circumvention” under the DMCA. How is the buyer who desires “hackable hardware” going to stop me?

    After much conversing, it was as if Linus got up from our virtual table and walked away. He never answered this question and never responded to my requests to publish our conversation.

    I’m all for alternative measures that negate the attempt to turn free software into a sham. But please Linus (and anyone else siding with his views), offer a practical way to make sure free software is alterable by those who have received a distributed copy. Is there anyone out there that can answer the question I asked Linus other than the FSF? Please…I’m listening.

    GPLv3 supports free software which in turn supports free culture.

  • Free Software

    “So his challenge is whether he evolves these licenses in ways that fit his own views alone”

    There exists a Free Software community that agrees with his views. So the question is “whether free software community evolves these licenses that fit their own views alone, recognizing those views deviate from many important parts of the open source movement. Or whether the free software evolves these licenses to support the communities they have enabled. This is a choice of principle of the free software movement vs compromise with the open source movement.”

  • http://www.robmyers.org/ Rob Myers

    Peter Rock you have hit the nail on the head (hey, I sound like the Mice apart from the fact that I’m agreeing with you ;-) ). The controversy over the GPL-3 has been manufactured by idiot journalists reporting the opinions of someone who will never use it. For a cure to this see Groklaw where PJ very politely fisks Linus in an open debate:

    http://www.groklaw.net/article.php?story=20060925204515114

    Stallman has already listened to the community, Moglen has responded at length, and GPL3 beta 2 has changed the most contentious sections quite markedly. This is accommodating wide sections of the community, including Torvalds if he’d actually listen for just a moment.

    Free Software is not a “gift economy” or a better way of making software for other people to sell, it is a set of freedoms for users of software. The challenges to those freedoms have evolved, and so the GPL must evolve to face them. The principle to guide the guardians of Free Software is that they should do the right thing. Stallman is. All of the changes are accounted for, and the fact that the Linux Kernel developers are as confused about DRM as Debian-Legal are (hint: it’s law, not technology) doesn’t give much weight to their argument.

    The FDL revision is not ideal in itself (to put it mildly) but the SFDL is brilliant and Wikipedia or any other work with no immutable sections can be moved to it with no problem. I’m dreading the Wiki license. ;-) I have already added my criticisms and comments to the web site. I’ll be very interested to see what CC make of the licenses, and hope (in a revision of my earlier position based on the problems solved by the new license) that BY-SA/SFDL compatibility is possible soon.

  • James Day

    It seems inaccurate to suggest that RMS inspired the open source software movement when he was himself inspired by open source but didn’t like the lack of restrictions it imposed on developers. Seems like putting the cart before the horse. He did perhaps inspire the OSF, but that’s just a recent development.

  • Rob Myers

    Peter Rock you have hit the nail on the head (hey, I sound like the Mice apart from the fact that I’m agreeing with you ;-) ). The controversy over the GPL-3 has been manufactured by idiot journalists reporting the opinions of someone who will never use it. For a cure to this see Groklaw where PJ very politely fisks Linus in an open debate:

    http://www.groklaw.net/article.php?story=20060925204515114

    Stallman has already listened to the community, Moglen has responded at length, and GPL3 beta 2 has changed the most contentious sections quite markedly. This is accommodating wide sections of the community, including Torvalds if he’d actually listen for just a moment.

    Free Software is not a “gift economy” or a better way of making software for other people to sell, it is a set of freedoms for users of software. The challenges to those freedoms have evolved, and so the GPL must evolve to face them. The principle to guide the guardians of Free Software is that they should do the right thing. Stallman is. All of the changes are accounted for, and the fact that the Linux Kernel developers are as confused about DRM as Debian-Legal are (hint: it’s law, not technology) doesn’t give much weight to their argument.

    The FDL revision is not ideal in itself (to put it mildly) but the SFDL is brilliant and Wikipedia or any other work with no immutable sections can be moved to it with no problem. I’m dreading the Wiki license. ;-) I have already added my criticisms and comments to the web site. I’ll be very interested to see what CC make of the licenses, and hope (in a revision of my earlier position based on the problems solved by the new license) that BY-SA/SFDL compatibility is possible soon.

  • http://www.robmyers.org/ Rob Myers

    Free Software: This is a choice of principle of the free software movement vs compromise with the open source movement.

    The compromise is in fact in favor of other principles, many of which are opposed to the idea of freedom.

    James Day: It seems inaccurate to suggest that RMS inspired the open source software movement when he was himself inspired by open source but didn’t like the lack of restrictions it imposed on developers. Seems like putting the cart before the horse. He did perhaps inspire the OSF, but that’s just a recent development.

    This is historically incorrect. The principles of software sharing predate Free Software, which is a reform movement, but the term “Open Source” was made up some years after the term “Free Software” because a group of software consultants were worried that their corporate customers wouldn’t like Freedom. Ironically this has scared off the biggest IT gravy train, the military, who love Freedom but aren’t all that keen on openness.

  • http://www.moneypaystherent.blogspot.com Sheryl K

    The OSF is a recent development after all.

  • http://sethf.com/ Seth Finkelstein

    I don’t know if I should put this in a public comment, but let me chime in with my support for what Crosbie Fitch, Peter Rock, Rob Myers have said.

    In particular, the core of the debate is here: “Or whether he evolves these licenses to support the communities they have enabled.”

    As has been said above, the Free Software community which has been enabled is being supported. It is not the same as the Open Source community.

    Free Software is a moral viewpoint. Open Source is a business model.

    THESE ARE NOT THE SAME!

    Moreover, it touches on a deep division – is freedom a value in itself, or just when it is good for business?
    I know, there is intense pressure to say these are not in conflict, to defend against the red-baiting and strawman attacks from monopolists.

    But … but … there is a deep philosophical problem that won’t go away – to wit, what happens *when* freedom conflicts with business?

    It doesn’t happen as much as the monopolists claim. These aren’t intrinsic enemies. But they are not the same either – what about the freedom to sell yourself into slavery? And that’s what Free Software addresses – it wants to promote maximal overall freedom as a good, and in any conflict, what’s good for business must yield. Open Source is about a particular business model, and will compromise freedom *if* necessary.

    It’s really not helpful to accuse people of being control freaks on the basis of by definition not agreeing with an opponent, which is what the critique boils down to at heart.

  • James Day

    Rob, the context was the open source movement, which predates both the OSF (going back to BSD) and GPL, back to the public domain principle in copyright law.

    Seth, so you have PostgreSQL which uses BSD (mostly) and is free for anyone to use and you have MySQL which is GPL and charges commercial developers who want to use it without disclosing their source code. PostgreSQL business models have all failed and/or been based on (temporarily?) proprietary software. MySQL gets the GPL users to test it then bundles it up and sells it as proprietary software. Yet you claim it’s the open source license which is the business model? You need to look a little further, I think. The restrictions the GPL imposes on developers make it a powerful tool for driving a business model, one MySQL exploits very well, to its credit and that of others who similarly exploit the restrictions the GPL imposes to create their business model. This GPL-based business model does nothing for “freedom” of the end users.

    How do you plan to force such companies, whose business model relies on the restrictions imposed on developers, to deliver the freedom for end users that the “free” software movement is supposed to stand for? The GPL isn’t a tool for freedom here, it’s an enabler of non-free business models.

    Perhaps you’ll duck, compromise freedom for business interests, and ignore the whole picture and claim that the GPL version is “free” so the whole picture doesn’t matter?

    Your slavery comparison is pretty good, IMO. The open source model would let you sell yourself into slavery. The “free” model would require that you also sell your descendants into slavery, whether they like it or not, though you would have the choice to have no descendants.

    Freedom is a fundamental value. It’s not obtained by coercing people, but by them freely choosing to agree with the principles and accepting that some won’t choose to agree but still releasing the code because that is the right thing to do to maximise the value to humanity.

    I agree that there is a conflict. The “free” software movement is fundamentally wrong in choosing coercion rather than cooperation and freedom. For all the best of reasons, honestly trying to do what is right, but still wrong in the method used. Better the open source model of people freely working together and sharing tools and such because they want to.

    The disputes over the new GPL version are just the normal troubles of a centrally governed communist-style freedom approach, when those at the edge don’t all agree with what the leaders are trying to impose. After the arguments, most will probably go along because it’s easier and less risky than revolution and real freedom. I don’t expect much in the way of revolution.

    No part of this should be taken as personal criticism of RMS or the other leaders of the “free” software movement, who I honestly believe really are trying to do the right thing. I almost always oppose what they oppose. But also the method used to oppose it.

    Views expressed here are not necessarily those of my employer or anyone else.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Dual licensing is an Open Source strategy. The fact that the GPL is used does not mean the creators of the GPL wish to encourage dual licensing or any other open source business model.

    Ideally there would be some trusted body to which copyright of one’s work could be transferred on the basis that the work would be published using the GPL – and only the GPL.

    As you say, it is currently an individual’s choice as to whether they accept the privilege conferred upon them by copyright or patents to curtail the freedom of their fellow men, or whether they divest themselves of it entirely, and use the GPL as a tool of manumission.

    That is the ethical choice.

    One can of course ignore the ethical choice and select one or more ready made licenses simply for commercial expedience, or even ‘because it seemed like a good idea at the time’.

  • http://gnuosphere.blogspot.com Peter Rock

    James Day says:

    Freedom is a fundamental value.

    Yes.

    It’s not obtained by coercing people,

    Of course not.

    but by them freely choosing to agree with the principles and accepting that some won’t choose to agree

    Yes.

    but still releasing the code because that is the right thing to do to maximise the value to humanity.

    Perfect.

    Now the question is, if one wants to – in your words – “maximise the value to humanity” (not, “maximise the number of options people have”), then what license – given the fact that proprietary copyright licensing is the current reality and that the public domain can be appropriated – is best for such a goal?

    The GPL is the best thing I’ve seen so far and meshes perfectly with what you have said above. I’m not understanding your argument James.

    James, do you want software to be licensed in a way that maximizes the value to humanity or gives people more choices? And if you say they are the same thing, then please…explain yourself.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Remember, the first coercion was the government in enacting copyright – “The public shall have their liberty to copy or derive new works from published works suspended for a brief period of time as an economic incentive to the publisher. After this time the public’s liberty to copy or prepare derivatives of the works will be restored.”

    That unethical coercion can be undone by the government, public disobedience, or an ethical choice by each artist.

    There are of course many who wish to retain this coercion, and the ideal strategy is to confuse the people with double-speak into thinking the coercion rightfully grants the artist the gift of liberty, or that those who would take this gift away are the ones exerting the coercion.

    “Abolish slavery?! What gives you the right to dissolve my property? Such a choice is mine, and mine alone!”

    Take it easy man. Let’s not start a war over this. Just do the right thing eh?

    Information is already instantaneously diffused. People are already emancipated. All that remains is the task of breaking this fact to people as gently as possible.

    No artist today can actually control what anyone else does with their published work. All we’re left with are people who haven’t quite grasped that fact yet.

    The GPL is a mind game. It only has power against those that still believe in copyright, i.e. those who believe in the proprietary software development business model.

  • http://www.digitalcitizen.info/ J.B. Nicholson-Owens

    I find the discussion somewhat interesting with one exception: the Open Source Initiative claims to have coined the term “open source” and started the open source movement. I can’t find any reference which contradicts their claim. Just as people had what today we might call free software before there was a free software movement (back when computers were new and a lot of software was shared and modified), there was no organized movement then pursuing the values of the movement which exists today. In fact Richard Stallman started the GNU Project in 1983 and the free software movement after someone had denied him a copy of printer software source code which Stallman thought he’d have no problem getting because that was how he had always worked up to then. Stallman figured out that he’d have to defend the freedoms he had been accustomed to having.

    Similarly, today people might think they dealt in an open source movement at some time prior to 1998, but I don’t see the references indicating that it was called “open source” or that people espoused the values that movement promotes today. The OSI began as a reaction to Netscape making available its browser software, the idea being that other businesses might also be willing to do something similar to what Netscape had done. They chose to pursue this by eschewing a user’s freedoms and advocating a developmental methodology instead.

    So in the absence of evidence contradicting the OSI’s claim, I’m compelled to conclude that it is revisionist history to say that there was an open source movement before the OSI began in 1998.

  • http://lucychili.blogspot.com Janet Hawtin

    Thanks for your work on Free culture and for the LinuxWorld talk.
    In the LinuxWorld talk you spoke of the stack of technologies which enable free culture. I believe that GPLv3 is an important tool in realising a green option at each level of that stack.

    Having a licence which really means the software is free is an important piece of legal spectrum. From that position it is possible to adapt the code to match the GPLv3 or to recognise that you want a product to be a mixed code product. LGPL or GPL2.

    My understanding is that the mixed products will not ensure your stack has safe technologies at each level. Projects which interface with or comprise DRM technologies can be licensed to make felons of people who make technologies which interface with them.

    My understanding of the position the developers have taken is that the kernel does include binary closed format material but that it will be a big task to undo that.

    In my opinion this does not mean we do not need GPLv3 it means we need it to flag what is honestly free for investment and safe development.

    Other projects, both proprietary, closed and open source which involve joins between two different DRM owners or between a DRM owner and another model do need to use a licence which indicates that there is a mixed issue which needs to be negotiated with care in order to ensure we have no future SCO-alike stunts.

    The community is not all where you suggest it is on this issue.
    Really free is important. It may be a journey not a simple step.

    “We are willing enough to praise freedom when she is safely tucked away in the past and cannot be a nuisance. In the present, amidst dangers whose outcome we cannot foresee, we get nervous about her, and admit censorship.’”E.M.Forster