OCLC Says ‘What Is Known Must Be Shared,’ But Is Suing Anna’s Archive For Sharing Knowledge

Copyright

from the live-up-to-your-principles dept

Back in March, Walled Culture wrote about the terrible job that academic publishers are doing in terms of creating backups of the articles they publish.  We also mentioned there two large-scale archives that are trying to help, Sci-Hub and Anna’s Archive.  Legal action by publishers against the former seems to have led to a halt to new items being added to its collection.  This has resulted in the rise of Anna’s Archive as the main large-scale archive of academic papers and other material.  It has also led to a lawsuit against the site, as TorrentFreak reports.  The legal move is by the non-profit OCLC, which was originally the Ohio College Library Center, then became the Online Computer Library Center, and is now simply OCLC.  It describes itself as follows:

OCLC is a global library organization that provides shared technology services, original research, and community programs for its membership and the library community at large. We are librarians, technologists, researchers, pioneers, leaders, and learners. With thousands of library members in more than 100 countries, we come together as OCLC to make information more accessible and more useful.

OCLC and thousands of its member libraries cooperatively produce and maintain WorldCat, “the world’s most comprehensive database of information about library collections”. The OCLC says:

WorldCat helps you share what makes your library great to make all libraries better.

As these quotations emphasize, sharing is central to what OCLC does, and this is encapsulated by OCLC’s slogan: “Because what is known must be shared”.  Despite that laudable commitment to sharing, it is suing Anna’s Archive for downloading the WorldCat database and sharing it.  This seems odd.  OCLC is a non-profit organization, and one that believes “what is known must be shared”.  Providing the WorldCat data on Anna’s Archive helps what is known to be shared, and therefore aligns with the OCLC’s goals.  

The people at OCLC clearly want to do good by making “information more accessible and more useful”, but are being hampered by a misguided belief that limiting access to its WorldCat database is more important than promoting the widest access to knowledge.  According to TorrentFreak, OCLC claims that it spent $5 million, including the salaries of 34 full-time employees, in a forlorn attempt to stop Anna’s Archive from downloading the database information.  It could have avoided these costs by simply giving the database to Anna’s Archive – or to anyone else – so that people can help the OCLC in its important mission to share what is known.

The current lawsuit will probably be the first of many, just as happened with Sci-Hub.  How Anna’s Archive will respond is not yet clear.  But an interesting post on the latter site points out that the continuing rapid fall in storage costs means that in a few years’ time it will be possible to mirror the entirety of even expanded versions of Anna’s Archive for a few thousand dollars.  When that happens, there won’t be one or two backups of the site – and hence most human knowledge – but thousands, possibly millions of copies:

We have a critical window of about 5-10 years during which it’s still fairly expensive to operate a shadow library and create many mirrors around the world, and during which access has not been completely shut down yet.

If we can bridge this window, then we’ll indeed have preserved humanity’s knowledge and culture in perpetuity.

If the OCLC truly believes “what is known must be shared” it should celebrate the fact that Anna’s Archive could soon make humanity’s knowledge universally and freely available – not try to fight it with costly and pointless legal actions. 

Featured image by Anna’s Archive via Archive.org. Originally published to Walled Culture.

Filed Under: academic publishing, academic research, archives, copyright, knowledge, lawsuits, sharing, worldcat
Companies: anna's archive, oclc, sci-hub

Sharing Material Used To Be The Norm For Newspapers, And Should Be For LLMs

Culture

from the the-exchange-of-information-is-good dept

Even though parents insist that it is good and right to share things, the copyright world has succeeded in establishing the contrary as the norm. Now, sharing is deemed a bad, possibly illegal thing. But it was not always thus, as a fascinating speech by Ryan Cordell, Associate Professor in the School of Information Sciences and Department of English at the University of Illinois Urbana-Champaign, underlines. In the US in the nineteenth century, newspaper material was explicitly not protected by copyright, and was routinely exchanged between titles:

Nineteenth-century editors’ attitude toward text reuse is exemplified in a selection that circulated in the last decade of the century, though often abbreviated from the version I cite here, which insists that “an editor’s selections from his contemporaries” are “quite often the best test of his editorial ability, and that the function of his scissors are not merely to fill up vacant spaces, but to reproduce the brightest and best thoughts…from all sources at the editor’s command.” While noting that sloppy or lazy selection will produce “a stupid issue,” this piece claims that just as often “the editor opens his exchanges, and finds a feast for eyes, heart and soul…that his space is inadequate to contain.” This piece ends by insisting “a newspaper’s real value is not the amount of original matter it contains, but the average quality of all the matter appearing in its columns whether original or selected.”

Material was not only copied verbatim, but modified and built upon in the process. As a result of this constant exchange, alteration and enhancement, newspaper readers in the US enjoyed a rich ecosystem of information, and a large number of titles flourished, since the cost of producing suitable material for each of them was shared and thus reduced.

That historical fact in itself is interesting. It’s also important at a time when newspaper publishers are some of the most aggressive in demanding ever stronger – and ever more disproportionate – copyright protection for their products, for example through “link taxes”. But Cordell’s speech is not simply backward looking. It goes on to make another fascinating observation, this time about large language models (LLMs):

We can see in the nineteenth-century newspaper exchanges a massive system for recycling and remediating culture. I do not wish to slip into hyperbole or anachronism, and will not claim historical newspapers as a precise analogue for twenty-first century AI or large language models. But it is striking how often metaphors drawn from earlier media appear in our attempts to understand and explain these new technologies.

The whole speech is well worth reading as a useful reminder that the current copyright panic over LLMs is in part because we have forgotten that sharing material and helping others to build on it was once the norm. And despite blinkered and selfish views to the contrary, it is still the right thing to do, just as parents continue to tell their children.

Follow me @glynmoody on Mastodon and on Bluesky. Originally posted to Walled Culture.

Filed Under: ai, generative ai, information exchange, journalism, llms, ryan cordell, sharing

Drake, Kendrick Lamar Feud Spurred On As Both Drop Copyright Restrictions For Reaction Videos

Culture

from the where's-the-beef? dept

Unless you’ve been living under a rock somewhere, you’ve likely caught wind of a rap beef that has taken the internet by storm. I won’t pretend to be enough of a pop culture expert to have any idea why both Drake and Kendrick Lamar have been lobbing frequent shots at each other in the form of diss tracks over the past couple of months, but it’s been fascinating to see how, and why, some have called this particular verbal battle “made for the internet.”

A great deal of that has to do with just how many Drake and Lamar memes already exist out there, such that they can be repurposed to make references to the current beef. Indeed, both artists themselves have gotten into that game somewhat, sharing memes of their own on the internet.

But that’s not the only way both are leaning into the internet culture side of this whole thing. It has been reported that both artists lifted copyright restrictions on the diss tracks that are flying back and forth specifically so that streamer personalities can post reaction videos to the tracks and keep this whole thing trending.

Kendrick Lamar and Drake have allegedly removed copyright stipulations from the diss tracks aimed at each other as the rap rivals’ war of words continues to grip social media.

This is fascinating for a couple of reasons. If you’re cynical like me, you may be wondering if all of this is a coordinated and manufactured situation designed to raise the profile of both artists. I would probably argue that neither of these artists really need that much lifting, but it’s also true that musicians like this definitely want and benefit from the public talking about them. If this is all some purposefully memefied “conflict,” it’s worked brilliantly.

And regardless of whether that’s the case or not, it’s equally interesting to watch two artists leave their copyrights to one side with the understanding that doing so will get the tracks, that they want people to hear, distributed more widely and trending with the internet crowd. All of that leads to the most obvious of questions: if it works for beef tracks, why doesn’t it likewise work for their music writ large?

In other words, why wouldn’t these two want to lift their copyright restrictions for reaction videos to their music entirely? It would serve the same purpose: to make the music more top of mind, relevant, and distributed thanks to the internet doing its thing. That would likewise lead to more interest in the music, in their concerts, and all the merch and other revenue streams that come along with it. Why is this plan fit for only diss tracks?

One hopes both artists, and maybe their respective labels, are paying attention to just how good this entire episode is for the exposure both artists are getting, regardless of whether the whole thing is as real as they are portraying it to be.

Filed Under: copyright, diss tracks, drake, kendrick lamar, sharing

PlayStation Ends Its ExTwitter Sharing Integration, Likely Due To API Payment Requirement

(Mis)Uses of Technology

from the X-it-stage-right dept

When it comes to the big 3 of the video game industry — Nintendo, Microsoft, and Sony — the circle is now complete when it comes to integrations with ExTwitter. Late last year, Nintendo killed off parts of its own integration not just with then-Twitter, but with Facebook as well. But then ExTwitter abruptly announced earlier this year that free access to its API was going to be cut off, replaced instead by a tiered payment scheme depending on what level of integration the user would need. Almost immediately afterwards, Xbox cut off the ability to share content via ExTwitter.

And now Sony has removed the PlayStation’s integration with ExTwitter as well, almost certainly for the same reason. Somewhat interestingly, Sony’s DS4 controller came with a button specifically called the “share” button, which allows you to screencap images or videos to your console to then share on social media. That button seems to have gotten measurably less useful now.

Sony said it is removing support for Elon Musk’s X/Twitter from its PlayStation game consoles, effective next week. The company announced the change in a notice posted Monday on its website.

“As of November 13, 2023, integration with X (formerly known as Twitter) will no longer function on PlayStation 5 and PlayStation 4 consoles,” the message on Sony’s website reads. “This includes the ability to view any content published on X on PS5/PS4, and the ability to post and view content, trophies and other gameplay-related activities on X directly from PS5/PS4 (or link an X account to do so).”

As ExTwitter’s valuation sits at somewhere around half of what it was at the time Elon Musk bought the platform, a trendline of the wider world not seeing enough value in the platform to cough up what he’s asking for to use it, well, ain’t great. The entire premise of a social media company is built upon user activity and engagement. Users have begun to leave the platform, including those that may have used it in conjunction with these 3rd party integrations that are likewise going away. Advertisers are going away, in part because of the toxic hellhole that ExTwitter has become, and in part due to the declining user base and engagement of existing users.

Musk can rail against the evil woke mind virus of death and destruction, or whatever strawman farce he wants to cook up to explain why everything he does is the bestest this week, but the platform is in decline in very measurable ways.

Musk closed his $44 billion debt-laden takeover of Twitter in October 2022, after Twitter sued him to complete the deal at the agreed-on terms. The company, since rechristened X Corp., is now worth $19 billion, according to a notice sent last month to employees eligible for stock grants.

Were PlayStation gamers using the ExTwitter integration all that much? Perhaps not. But “some” is a higher value than “absolutely none, because Sony killed it off.” And when you’re bleeding money and usership, well, this is one more data point in a story of how to kill a once-useful and potentially successful platform.

Filed Under: api, playstation, sharing, social sharing
Companies: sony, twitter, x

How The Internet Enabled A Mariners Fan And DoorDash Driver To Connect And Do Something Cool

Culture

from the faith-restored dept

The world can be an awful, horrible place. Lately, it feels like, in America, things are only getting more difficult. And, because my country loves its scapegoats, the internet has been routinely blamed for all the country’s, perhaps the world’s, ills. Insurrections, political radicalization, obesity, poor socialization, literally any sub-optimal thing to do with children: blame the internet.

But that’s obviously stupid. The internet is responsible for both good and bad outcomes in society, as is pretty much everything else. But the internet also is only as good or bad as those that make use of it. And sometimes, the internet enables really awesome stuff.

Take the story of Sofie Dill, Seattle Mariners fan, and Simranjeet Singh, a DoorDash driver. This past weekend, without getting into too much detail, Jesse Winker was hit by a pitch while playing the L.A. Angels and a brawl between the teams ensued. Baseball fights are plainly dumb, but some fans enjoy them, or at least root for their players in the fight. To that end, Dill, from her home in Arkansas, decided to send Winker a pizza from a local Anaheim parlor to be delivered directly to the stadium. And, for added measure, she live-tweeted her DoorDash experience for everyone to follow along.

Baseball fan or not, you should go check out the full thread. It’s a harrowing journey to see if she could in fact deliver a pizza to a professional baseball player in a visiting Major League clubhouse to express her support. The spoiler here is that the pizza did in fact get delivered, Winker reached out to her on Twitter to say thanks, and a whole bunch of people were cheering on the DoorDash driver, Singh, as he went on his dutiful journey.

As a result, Dill managed to get Singh to share his Venmo QR code and shared it out to Twitter.

And from there, the internet did its thing. Plenty of folks started sending money to Singh’s Venmo. Other’s asked they could send him money via another platform. Singh himself started sending out tweets thanking everyone, clearly overjoyed at everyone’s generosity. Then, were that not enough, two other awesome outcomes happened, just to restore your faith in humanity.

While I can’t be sure how much was donated to Singh, he certainly didn’t keep all of it for himself.

There are good people in this world. Paying it forward would have been the feel good coda to this story on its own, but then the Mariners decided to get in on the fun as well.

Dill got herself a Winker jersey from the Mariners. Singh had what he describes as a life-changing event. Mariners fans got to have a ton of fun on Twitter with all of this. St. Jude’s got a donation.

If there’s a loser in this story, I can’t find one. And all of this made possible by the evil, vile internet that too many people blame for every last thing.

Filed Under: baseball, fandom, internet, jesse winker, pizza, sharing, simrajeet singh, sofie dill
Companies: doordash, seattle mariners

German Court Fines Site Owner For Sharing User Data With Google To Access Web Fonts

Legal Issues

from the getting-fined-the-odd-way dept

The European Union’s data privacy law, the GDPR (General Data Protection Regulation), has caused all sorts of problems since its debut. Its debut was itself a mess, something that immediately resulted in a whole lot of websites simply refusing to allow European users to connect with them.

Since it was unclear how to avoid running afoul of the law, it was easier to avoid potential fines by simply cutting European users out of the equation. For everyone else, it was being greeted with a new warning about cookies at nearly every website they visited — a small hassle to be sure, but a hassle nonetheless.

Then there were the truly unexpected consequences of the new law that imposed data-gathering and data-sharing restrictions on any business, whether they were internet-based or not. In some areas, GDPR was read as requiring retailers to notify purchasers of items when the items were returned — something that would make the exchange of unwanted Christmas gifts extremely awkward.

In another weird case, post offices in Ireland removed waste bins from their facilities because customers were throwing out unwanted mail and receipts, resulting the offices’ unintentional collection of personal data. When the waste bins went missing, customers resorted to throwing their trash on post office counters and floors, leaving it even more unregulated than it was when the waste bins were still in place.

Yet another side effect no one saw coming: the use of Google’s Font API was enough to get a website fined by a German court. (via Slashdot)

Earlier this month, a German court fined an unidentified website €100 ($110, £84) for violating EU privacy law by importing a Google-hosted web font.

The decision, by Landgericht München’s third civil chamber in Munich, found that the website, by including Google-Fonts-hosted font on its pages, passed the unidentified plaintiff’s IP address to Google without authorization and without a legitimate reason for doing so. And that violates Europe’s General Data Protection Regulation (GDPR).

The court says whether or not Google did anything with the forwarded IP address is beside the point. The fact is the website engaged in the unauthorized transmission of this IP address to Google by using its font API to access a font to render the text on the site. The court’s decision points out this can be avoided by self-hosting the font and notes that the website operator has chosen to do this going forward. That being said, the court still feels a fine is the only way to ensure future compliance with GDPR.

Risk of repetition is to be affirmed. It is undisputed that the plaintiff’s IP address was forwarded to Google when the plaintiff visited the defendant’s website. Previous unlawful impairments justify an actual assumption of the risk of repetition, which was not refuted by the defendant. The risk of repetition is not eliminated by the fact that the defendant now uses Google Fonts in such a way that the IP address of the website visitor is no longer disclosed to Google. The risk of repetition can only be eliminated by a declaration of discontinuance with a penalty.

The fine here may have been minimal, but the law allows a penalty of €250,000 ($286,000) per violation, which the court warns the website operator is not only possible, but probable, if the problem doesn’t go away. There’s also the (very slim) chance the improper use of Google Fonts could result in prison time, because that’s also a potential GDPR violation penalty.

While the solution here appears to be simple enough — self-host fonts — the reality of the situation is that this decision will lead to yet another pop-up asking for consent that will stand between site users and the content they’re trying to access, and that no one will read before clicking “accept.” It won’t make the web a better place and it won’t do much to limit the sharing of personal data with off-site entities. It will just make everything a little more annoying.

Filed Under: data protection, fonts, gdpr, germany, ip addresses, privacy, sharing, web fonts
Companies: google

Court Says That Travel Company Can't Tell Others How Much Southwest Flights Cost

Legal Issues

from the c'mon dept

A few months back, we wrote about Southwest Airlines’ ridiculously antagonistic legal strategy against aggregators that would scrape information on flights and prices from Southwest.com and help people find flights and prices. The case we covered was the one against Skiplagged, but it was related to a separate case against Kiwi.com. Skiplagged had argued that it didn’t violate Southwest’s terms of service since it wasn’t scraping info from Southwest… but rather had scraped it from a different site, Kiwi.com, which in turn had scraped it from Southwest.com.

Just the fact that we’re arguing over whether or not it’s legal to scrape data from publicly available websites should alert you to the fact that these lawsuits are nonsense. Factual data — such as flight routes and prices — are not protected by any intellectual property and if you put them out there, people can (and should!) copy them and spread them elsewhere. But, unfortunately, the court ruled against Kiwi.com last fall, granting Southwest an injunction saying that Kiwi can’t scrape its site for data any more. Realizing it was in trouble, it appears that Kiwi caved in and settled the lawsuit agreeing to no longer collect data on Southwest flights.

Given that, the court has now made the preliminary injunction a permanent injunction barring Kiwi and any of its employees from ever scraping data off of Southwest’s site. The court takes for granted that Southwest can just say in their terms of service that you can’t copy data from their website and that’s a valid contract. That seems dangerously empowering for terms of service. Can I add to Techdirt’s terms of service that by reading this site you agree to place any copyright-covered works you create into the public domain?

Southwest?s Terms & Conditions are a valid and enforceable contract, and Kiwi.com accepted those Terms & Conditions when it used the Southwest Website with knowledge of the Terms & Conditions;

Kiwi.com breached the Terms & Conditions when it, among other things, harvested and scraped data from the Southwest Website, published Southwest?s flight and fare schedules on Kiwi.com, used the Southwest Website for Kiwi.com?s own commercial purposes, and brokered and sold Southwest flights without permission;

Kiwi.com?s violations of the Terms & Conditions have caused Southwest to suffer irreparable harm, including lost traffic on its website, customer service burdens, operational disruptions, and reputational damage; and

After considering the balance of harms, the threatened injury to Southwest if the injunction was denied outweighed the harm to Kiwi.com because, among other things, Kiwi.com?s unauthorized sales of Southwest flights poses a significant disruption to its customer operations, and the public interest would be served if an injunction is granted because there is an expectation that parties to contracts will honor their contractual obligations.

Those last two paragraphs also seem like complete nonsense. If people find it easier to use a third party service than your own site, well, then that should mean you should work to improve your own site, not get to sue them in court. Lots of things lead to “lost traffic” on a website, including better service from a competitor. But we don’t say that violates the law.

Anyway, because of this no one associated with Kiwi.com can ever “extract” any information from Southwest’s website or even post data about Southwest flights on its website and I honestly don’t see how that’s possibly legal. Data is data. You shouldn’t be able to bar a company from posting data.

IT IS HEREBY ORDERED that Kiwi.com, Inc. and Kiwi.com s.r.o., as well as their officers, agents, servants, employees, and attorneys and all other persons acting who are in active concert or participation with them, are permanently prohibited, restrained, and enjoined permanently from: (1) harvesting, extracting, or scraping information from the Southwest website, www.southwest.com, or its proprietary servers, including Southwest?s flight and fare information; (2) publishing Southwest flight or fare information on the kiwi.com website, through its mobile applications or elsewhere; (3) otherwise accessing and using Southwest?s website and data for any commercial purpose; (4) selling Southwest flights; and (5) committing any other acts in violation of Southwest?s Terms & Conditions

What an unfortunate state of an events — but also a very clear reminder that Southwest is anti-consumer in its practices.

Filed Under: data, flights, prices, scraping, sharing
Companies: kiwi, southwest

Amazon's Idea For A Mesh Network Is Cool; Its Method Of Rolling It Out Is Not

(Mis)Uses of Technology

from the c'mon-guys dept

Over the weekend there was a bit of a reasonable fuss raised after Ars Technica noted that all of the various Amazon connected devices (including Alexa, Echo, Ring, etc.) would become part of a mesh network called Amazon Sidewalk, in which the devices would be sharing a tiny tiny bit of bandwidth across the network of devices. The idea behind the mesh network is kind of cool, and there are some clear benefits to using it.

But, of course, this is Amazon we’re talking about — a giant company, and the method of rolling this out seems to have caught a ton of people by surprise: namely opting everyone into the program with a short timeline to opt-out. That seems less than ideal. Lots of privacy folks are concerned, in general, with two aspects of this: the fact that people may be suddenly sharing data with their neighbors without necessarily realizing it, and the tie-in to Amazon, which is (again) a large company that tends to collect quite a bit of data on people. To its credit, Amazon released a pretty comprehensive whitepaper exploring the privacy and security protections they’ve built in to Sidewalk, and my guess is that for many consumers the benefits of easier setup and better connectivity via Sidewalk will seem worth it to them.

The real issue, then, is forcing everyone into the network. Obviously, it’s no surprise why this was done. A mesh network really only works if you have enough nodes on the network to make it useful. So it makes sense that Amazon would want as many of the devices to be on the network on day one as possible. However, given the company and the public scrutiny it has received of late, it seems like it should have anticipated these concerns a lot more, pushed for an opt-in setup (perhaps with incentives), rather than jumping to the “hey, we’re adding this automatically” approach.

While it’s possible that Amazon is betting that the concerns over this will blow over, and having so many nodes on the network will make it worthwhile to take the short-term heat, it still surprises me that the big internet companies don’t take more steps to alleviate these kinds of concerns up front, including taking a more cautious approach. But, perhaps that’s why I don’t run a giant internet company.

Filed Under: alexa, amazon sidewalk, echo, iot, mesh network, opt-in, opt-out, privacy, ring, sharing
Companies: amazon

A Second Cambrian Explosion of Open Source Licenses Or Is it Time For Open Source Lawyers to Have Fun Again?

Legal Issues

from the fun-with-open-source-licensing dept

As the open source world has grown, so have concerns about the context in which openly licensed items are used. While these concerns have existed since the beginning of the open source movement, today?s larger and more diverse movement has brought new urgency to them. In light of this revived interest within the community, the time may be ripe to begin encouraging experimentation with open source licensing again.

How We Got Here

While the history of open source software is long and varied (and predates the term open source software), for the purposes of this blog post its early evolution was driven by a fairly small group of individuals motivated by a fairly homogeneous set of goals. As the approach became more popular, the community developed a wide range of licenses designed to address a wide range of concerns. This ?First Cambrian Explosion? of open source models and software licenses was a time of experimentation within the community. Licenses varied widely in structure, uptake, and legal enforceability.

Eventually, the sprawling nature of this experimentation began to cause problems. The Free Software Foundation?s Free Software Definition and the Open Source Initiative?s Open Source Definition were both attempts to bring some order to the open source software world.

In the specific context of licensing, the Open Source Initiative began approving licenses that met its criteria. Soon thereafter, it released a License Proliferation Report detailing the challenges created by this proliferation of licenses and proposing ways to combat them.

These activities helped to bring order and standardization to the world of open source licensing. While OSI continues to approve licenses, for well over a decade the conventional wisdom in the world of open source has been to avoid creating a new license if at all possible. As a result, for most of this century open source software license experimentation has been decidedly out of style.

Largely for the reasons described in the License Proliferation Report, this conventional wisdom has been beneficial to the community. License proliferation does create a number of problems. Standardization does help address them. However, in doing so standardization also greatly reduced the amount of license experimentation within the community.

Reduced experimentation means that concerns incorporated into approved licenses (access to modifications of openly licensed code) have been canonized, while concerns that had not been integrated into an approved license (restrictions on unethical uses of software) at the moment of formalization were largely excluded from consideration within the open source community.

What Changed

What has changed since the move towards codification of licenses? The open source software world has gotten a lot bigger. In fact, it has gotten so much bigger that it isn?t just the open source software world anymore. Creative Commons – today a towering figure in the world of openness – did not even exist when the Open Source Initiative started approving licenses. Now the open world is open source hardware, and Creative Commons-licensed photos, and open GLAM collections, and open data, and all sorts of other things (this is a whole other blog post). The open source world has moved beyond early debates that questioned the fundamental legitimacy of open source as a concept. Open source has won the argument.

An expansion of applications of open source has lead to an expansion of people within open source. Those people are more diverse than the early open source software proponents and are motivated by a wider range of interests. They also bring with them a wider range of concerns, and a wider range of relationships to those concerns, than early open source adopters.

What is Happening Now

This broader community does not necessarily share the consensus about how to approach licensing that was developed in an earlier period of open source. They bring a range of viewpoints that did not exist in the earlier days of open source software into the open source community itself. They are also applying open source concepts and licenses to a range of applications that were not front of mind – or in mind at all – during the drafting of today?s canonical licenses.

Unsatisfied with the consensus rules that have delivered us the existing suite of (incredibly successful) licenses, parts of the community have begun experimenting again. Veteran open source lawyers are rewriting licenses with public understandability in mind. Community members are transforming their interpretation of open source development into licences that invite collaboration without intending to adhere to the open source definition. Some of these licenses are designed to address concerns traditionally excluded from the scope of open source licenses. I am directly involved in the ml5.js attempt to do just that.

The creators of these experiments are responding to a standardized approach to licensing that does not fully accommodate their needs and concerns. In some cases the standardized approach does not accommodate these concerns because the community litigated including them in the past and decided it could or should not be done. However, even in those cases, that debate happened within a very different community in at least somewhat different contexts. The conclusions arrived at then are not necessarily valid for the broader world that open source finds itself inhabiting.

In light of that, it may be time to begin encouraging experimentation in open source licensing again. Encourage people to test out new approaches by applying them to real world problems. In some cases, the decisions made in the past will prove to be robust and sustainable. In others, a new debate will reveal the decisions? shortcomings. In both cases, the open source community will be stronger by being tested from within.

Coda: Is This Post Just a Lawyer Advocating for Lawyers to Have More Fun?

Throw out the old ways of doing things! Try something new! Experiment! Is this just a call for lawyers to have fun by screwing around with exotic licensing concepts at the expense of everyone else?s stability (and sanity)?

It could be. But I don?t really think so. The thing about lawyers (as a group – there are always exceptions) is that novelty and instability makes us nervous. Things that are tried and true will probably work. That means we do not have to worry about them. New things – who knows what will happen to them? That uncertainty makes lawyers nervous.

That is part of the reason why lawyers like today?s conventional wisdom. The canonical set of open source licenses have more or less worked for decades. It is unlikely that they will explode, and it is even less likely that they will explode in the face of the lawyer who uses them on any given project. In contrast, any lawyer who writes their own license is setting themselves up for a period of anxiety, waiting to discover what they missed or how things will go wrong.

Of course, some lawyers do think it is fun to cook up new open licenses. And maybe this post is a call for them to do more of it. But, on balance and as a whole, introducing new licenses into the world of open source will probably cause open source lawyers more anxiety than joy.

I think that anxiety is probably worth it. But that will be far from a universally held position.

Originally published on Michael Weinberg’s blog and repbulished under a CC-BY-SA 4.0 license.

Filed Under: licenses, open source, open source licenses, sharing