UnivAcc - Pragmatic > License Simplicity 1

Advancement Through License Simplicity

Licensing can have significant effects on the advancement of culture and technology. All modern cultural development depends on preceding culture. All modern technological development depends on preceding technology. Barring intervention by God, the very ongoing advancement of sentient life depends implicitly on the accessibility of foregoing advancement, and licensing is the practice (within modern innovation-encumbering legal environments) of either controlling, or providing access to, advances that may form the basis for further advancement.

If you are interested in enabling, or of simply allowing, optimal advancement of culture and technology, read on to see how licensing can help or hinder such aims. If your interest is instead in obstructing advancement of culture and technology for the sake of misguided short-term profiteering through aggressive protectionist policies, feel free to go read something else, because what I have to say will then probably fall on deaf ears.

tl;dr summary: If this essay is too long to read, and you like copyleft licenses, you are a hypocrite. Your favorite license is too long, complex, and full of legal gotchas.

Deb Shinder's Microsoft Licensing Complaint

As a former contributing writer for TechRepublic over a period of half a dozen years -- and for most of my last year writing for them I was almost certainly the most prolific contributor TR has had -- I had occasion to meet Deb Shinder a couple of times and hear her speak in person, as well as to read and comment on her articles as one of TR's most active community members over the years. I have some differences of opinion with her from time to time, most likely over issues of terminology more often than anything else. Her expertise lies in somewhat different directions than mine, though, and as such our respective contributions to TechRepublic's article content have substantively tended to provide differently useful information for readers.

A 2012 article of hers, Microsoft Should Demystify Their Software Licensing Process, moves into what was to some extent more my bailiwick than hers when I contributed articles for TR. I was pleasantly surprised to find that her article was very well informed and did not fail to make very good points throughout. The surprise was not because I did not think her up to the task of writing a good article, but because on matters of copyright and licensing most of the world is hoplessly clueless and the de facto standard attitudes on such subjects take commonly preposterous assumptions for granted, abuse and misconstrue legal realities with abandon, and generally fall all over themselves trying to be aggressively wrong. It always surprises me when someone gets things substantially right and it is not someone I have seen write in any detail on such issues before.

It is possible the positive result largely arises because Deb Shinder somehow managed to avoid rendering ethical judgments on much of anything, and was thus perhaps not tempted to engage in the sort of fallacious arguments that many others so joyously take up in variously misguided crusades, regardless of which side of a copyright and licensing debate over ethics they adopt as their own. It seems likely that at least some of the credit goes to her experience dealing with the legalities of information technology issues, however, as a consulting expert for law enforcement among other professional pursuits.

She points out the tangled hairball that is the legal landscape of dealing with Microsoft's various licensing schemes ("the licensing labyrinth"), an environment liberally seeded with land mines that can easily take the leg off an unwary small business owner's bottom line no matter how well-meaning his or her efforts to comply with copyright law and license terms. She also makes surprisingly non-mainstream, fairly precise statements about matters like the popular abuse of terms like "property" and "theft" in debates over matters of copyright and licensing:

That's why, regardless of what the anti-piracy commercials say, under the statutes of many jurisdictions copyright infringement (which is itself a crime) is not the crime of "theft."

The legal definition of theft usually goes something like this:

The unlawful appropriation of property without the effective consent of the owner, with the intent to deprive the owner of the property. (Texas Penal Code, Sec. 31.03).

The problem is that when you "steal" a software program (or digital song or movie or book), you don't deprive the owner of the property. He/she still has full use of it; it's just that you have a copy of it, too. Thus a different model was created for selling the rights to use a creative work.

She goes on to describe the evolution of the state of affairs surrounding the modern software EULA, particularly in the case of Microsoft's example. The only glaring flaw in an otherwise excellent article was a matter of terminology related to copyright licensing vs. contract law.

The Nature Of Licensing

Deb Shinder's article made this erroroneous observation:

The contract that governs an individual's use of a piece of software is usually known as an End User License Agreement (EULA). A EULA is somewhat unusual in comparison to other contracts because you don't have to actually sign the contract to become bound by its terms. Instead, you may be deemed to have agreed to the terms simply by clicking a button or even merely by opening the box.

The problems here are fairly simple to explain, according to the basic theory of how license grants and contracts work. Note that I am not a lawyer, this is not legal advice, and it should go without saying that no amount of theory of law and interpretation thereof is worth the pixels on which it is printed if you end up in court being told that no, for you it does not work this way. Sometimes, the law in practice contradicts not only the law in theory, but also itself, decades or centuries of precedent, and all common sense.

Without further ado, the following is an explanation of some of the key points of licensure and contracting.

  1. A "license" is a grant of permissions not otherwise allowed by law -- copyright law, in this context. This is often deemed necessary to be able to install and use copyrighted software at all, because copyright law otherwise restricts how someone may use any copyrighted work to a set of commonly recognized (though their extent is often debated) exceptions to copyright law known as the doctrine of fair use. If your use, duplication, or distribution of the software in any way steps outside the realm of what "fair use" protects in a court of law, you need a license allowing such dealing in the software to legally protect your behavior in case of a copyright infringement suit. Note that "copyrighted software" is almost redundant, because while some software authors may attempt to dedicate their works into the "public domain", the effectiveness of such a dedication is hotly debated, and highly variable from one jurisdiction to the next. Corporations in France pay four-figure licensing fees to use the "public domain" SQLite software, for instance, because France does not recognize the ability of a copyright holder to dedicate a work to the public domain.

  2. A "contract" is an agreement between two parties where explicit acceptance by both parties is necessary for the terms of the agreement to be enforceable under the law. Such an agreement need not have the same relationship to copyright law as a grant of license, nor need it have any relationship with copyright law at all. In fact, a license in and of itself is a one-way grant, where the grantor gives something to the grantee, period; a contract is an explicit agreement where both parties agree to a set of conditions and, if one party or the other violates its part of the bargain, the party that has not violated the terms of the contract may be legally entitled to damages or other recompense, or the contract as a whole may simply be rendered null and void under the law.

  3. A "license agreement" is typically rendered in the form of a document that looks quite a lot to the layman (including me; I am no lawyer) like a contract. It differs in that it does not, for a proper and valid non-contractual license agreement, require the grantee to explicitly agree to anything, at least as far as the grantor is concerned. The common form of a license agreement, such as an End User License Agreement, lays out specific allowances for what the grantee is permitted to do with the copyrighted work conveyed into his or her possession -- allowances typically above and beyond those of the doctrine of fair use, and definitely more explicit and clear than the allowances of the doctrine of fair use under current conditions. Coupled with these allowances are restrictions enough to make eyes glaze over, cause minds to go numb, and drop blood pressures nearly to unmeasurability at the plodding, dismal bureaucracy of it all.

The only thing that differentiates a license agreement from basically everything else in the world is that it grants license to do something that would otherwise not be allowed under the law in exchange for some consideration provided by the grantee -- the licensee, that is; the person to whom license is granted -- but does not require explicit agreement. It offers assurance that the grantee may take the actions protected by the license grant only if the grantee also conforms to the requirements of consideration by the grantee described within the license agreement. Refusing the license agreement, or failing to abide by its terms, devolves to a state of judging the permissibility of the person's actions by the standards of unadorned copyright law and doctrine of fair use.

License agreements are not required to look like that, of course. They can be simple, beautiful, and eloquent. The closer they get to allowing everything (except, probably, protection of further recipients' access to the license agreement and ability to avail themselves of its grant of license), the simpler, more beautiful, more eloquent, and more beneficial they are.

Simple To Read, Simple To Use

Quoting an email from a pseudorandom licensing partisan . . .

On Wed, Sep 07, 2011 at 03:06:15PM -0700, Rick Moen wrote:
> If CC0[1] (which Creative Commons points out does _not_ put a work into
> the public domain) were proposed for OSI Certified status, I see no
> objection to vetting it as an open source licence -- though I'd question
> the _sanity_ of anyone asserting that 121 lines of cramped legalese 
> are 'simpler' than the MIT Licence's ~20 lines. 
> [1] https://creativecommons.org/publicdomain/zero/1.0/legalcode.txt

I stuck the text of a number of copyfree license agreements into text files. Eliminating copyright notices and unnecessary license agreement titles and the like, so that what remains is actual legal license agreement text (plus, in the case of CC0, some explanatory remarks that appear tangled somewhat with the legal license agreement text itself, or in the case of the Nietzsche Public License's terms -- well, the entire license agreement is mostly composed of joke), we get this result of a wordcount (the columns showing lines, words, characters, and filenames, respectively):

> wc *
  120 1059  6986 cc0.txt
   11  109   683 isc.txt      
   17  162  1023 mit.txt
   18  174  1120 npl.txt
   17  162  1019 owl.txt      
  183 1666 10811 total

cc0.txt = Creative Commons Zero waiver, v1.0

isc.txt = ISC License

mit.txt = MIT/X11 License

npl.txt = Nietzsche Public License, v0.5

owl.txt = Open Works License, v0.9.2

Of course, they are not all identical in their effect. The CC0 waiver is more explicitly "public domain for a world where public domain doesn't work" than the others, and thus more appealing to a certain subset of people trying to choose a license agreement. The MIT/X11 and ISC license agreements are specific to software, making them more limited in focus than the OWL and CC0 -- which might lead to some confusion or legal difficulties at some point (not being a lawyer, I do not claim to know for sure). As Rick Moen pointed out, CC0 is also substantially more complex, longer, and more difficult to follow for the layman than the others as well, to the point where it is nearly an order of magnitude longer-winded than the others.

Another interesting factoid:

>  bc -lq
1059.0 / 1666.0           # word count
6986.0 / 10811.0          # char count
120.0 / 183.0             # line count

It looks like CC0 is about 64% of the total word count of all the relevant license agreements, about 65% of the character count, and 66% of the line count, leaving the other three license agreements to split up around 36%, 35%, and 34%, respectively. If you're looking for something brief, simple, and understandable amongst these four, it appears that anything other than CC0 will do nicely.

My personal preference for any ongoing project is, of course, the OWL. It provides essentially the same benefits as the ISC and MIT/X11 license agreements, plus the added advantage of using language that does not explicitly limit its proper applicability to software. Even when you are licensing software, I believe the license agreement you choose should not limit itself to software because there is some potential for issues if someone wishes to combine your source code with a non-software work (e.g. a book about programming, a background image for a GUI environment, or -- if the person is sufficiently geeky -- maybe even the lyrics of a song).

I have been known to use the NPL from time to time as well, though strictly for releases of what I consider "throw-away" works, e.g. CMMS, a "content management micro-system" I wrote in a few minutes to prove a point in an online discussion. To give you an idea of the "throw-away" nature of the codebase, wc reports it contains ony 88 "words" in 44 "lines" of source code (don't ask me why it didn't count the 45th line; maybe it likes that song by The Nails).

Comparative Maleficence

Consider these numbers:

> wc *
   275   3111  19406 ccbs.txt
   225   5644  34664 gpl3.txt
   716   6430  41535 winv.txt
   490   5622  36380 winx.txt
  1706  20807 131985 total

ccbs.txt = Creative Commons Attribution-ShareAlike 3.0 Unported License

gpl3.txt = GNU General Public License v3

winv.txt = MS Windows Vista EULA

winx.txt = MS Windows XP EULA

It should come as no surprise that the WinVista EULA has grown by 808 words over its predecessor, the WinXP EULA. That is a growth of about 14%. Microsoft's EULAs have grown consistently for a long time. The same is true of the GPL, of course: each version is longer than its predecessor (please just take my word for it, because I am feeling too lazy to hunt down the text of earlier versions right now).

The GPL and CC-BY-SA are, like the various MS Windows EULAs and the "Simple To Read, Simple To Use" copyfree license agreements listed earlier (CC0 may not always fit that description or be considered an "agreement"), license agreements. Like the MS Windows EULAs and quite unlike the simple copyfree license agreements, they are comprised of thousands of words of dense legalese (in fact, of these four, only CC-BY-SA is shorter than this rather lengthy essay, and it is not much shorter). Also like the MS Windows EULAs and also quite unlike the several simple copyfree license agreements, they explicitly impose quite a few restrictions on what the licensee may do with the works covered by their terms.

The GPL and CC-BY-SA license agreement both allow anyone who possesses a covered work to distribute copies of it to anyone else, subject to certain restrictions that are collectively identified as conforming to the definition of the term "copyleft". The restrictions generally grow more onerous when modifications are made prior to redistribution, and even more so when the works in question are extended to produce a "derivative" work even when those extensions do not necessarily involve modifications to the original work itself. The exact applicability of these restrictions is somewhat debatable, they vary from one copyleft license agreement to another, and they are subject to the whims of the courts. In general, though, one is safest when distributing anything that touches those works under the same license agreement terms, and (where applicable) providing the works not only in whatever form is preferred for distribution but also in whatever form is preferred for subsequent modification, taking pains to avoid any distribution mechanism that might interfere with the ability of a recipient to store a local copy and modify it.

These restrictions give rise to a problematic set of conditions where it can be illegal to combine two works to produce a new work. The heritability requirements of copyleft license agreements -- that is, the terms that require the licensed work (and, generally, its derivatives) to be redistributed only under the same complete set of license agreement terms -- give rise to sticky license agreement compatibility problems. Copyleft licensed material cannot generally be included inextricably as part of a complete work distributed under another license agreement, and two copyleft licensed works (or substantial parts of them) cannot be combined within a single work to be distributed under the terms of a single license agreement because all copyleft license agreements involved demand their own use to license modified or derivative works. When the GPL and the CDDL (Common Development and Distribution License, another copyleft license agreement) cover two distinct works, those works are prohibited from being combined in a single work because each license agreement will demand that the single work be distributed under its own terms in preference to the other's terms, creating a license terms conflict.

Exceptions to this problematic state of affairs exist. The CC-BY-SA license agreement, for instance, states that it can be replaced by an equivalent license agreement according to a list of equivalent license agreements. Unfortunately, as of April 2012, the canonical list is empty:

Please note that to date, Creative Commons has not approved any licenses for compatibility; however, we are hopeful that we may be able to do so in the future. If you would like to discuss the possible compatibility of your license with a Creative Commons license, please email us at info@creativecommons.org.

The Mozilla Public License (yet another copyleft license agreement) makes explicit exception for combination with GPLed works, and various GNU license agreementss make explicit exception for combination with works distributed under other GNU license agreements as well. In neither case, however, is any provision made for combination of a work covered under the terms of these license agreements with works covered under the terms of other copyleft license agreements such as the CDDL. Copyleft license agreements likewise do not allow the works they cover to be included in projects whose works are distributed under other license agreements, in the general case.

The end result is that maximizing reusability of both cultural and technological works is prohibited by law where copyleft license agreements are concerned.

A Simple Solution

As is easily discerned from the text of the simple copyfree license agreements mentioned earlier, the only future licensing requirements explicitly imposed on a reuser of a work covered by one of these license agreements is that the license agreement text must be included with those future redistributions of modified or unmodified work. While it might be annoying to include four different license agreements' text with a single work when combining works distributed under the terms of the ISC License, the MIT/X11 License, the Nietzsche Public License, and the Open Works License, the combined total word count is still minuscule by the standards of the copyleft license agreements mentioned above:

 > wc *
  11 109  683 isc.txt
  17 162 1023 mit.txt
  18 174 1120 npl.txt
  17 162 1019 owl.txt
  63 607 3845 total

Even CC0, at 1059 words (nearly twice the size of these four put together), is a fraction the size of any of the copyleft license agreements and commercial EULAs mentioned thus far. Considering that is the only substantive requirement of these license agreements, allowing one's obligations to carefully observe legal restrictions to avoid landing in court or otherwise being punished for an error of copyright compliance to end there, the benefits for reuse of cultural and technological works as the basis for further advancement should be obvious.

By contrast, the incompatible conditions of many more complex license agreements, including mutual legal incompatibility between copyleft works prohibiting them from being combined, mandate reimplementation of existing works from scratch to provide the basis for advancing the state of the art. Where reimplementation or reinvention might be beneficial for purposes of improving on the state of the art through redesign, the rote recreation of what already exists without making significant improvements over the original, just to have the legal permission to build something new on top of it, is a colossal waste of time and effort. It is a holocaust of hours murdered en masse, sacrificed to the jealous, wrathful, bloodthirsty gods of copyright compliance.

As a result of these demands for blood sacrifice, where merely shedding a little red from a needle prick in one's arm might be infinitely preferable to the months or years dedicated to reinventing the wheel in pursuit of a single project's completion, many potential advancements may not materialize when conceived but, instead, end up abandoned until a later date when someone else makes the effort. Incredible waste goes into doing over and over again what has already been done before, for no purpose other than to avoid going to jail or paying the often unaffordable legal fees and fines to settle a copyright infringement claim.

The act of merely applying a simple license agreement -- simple to use, simple to apply, simple for the licensee to understand, and even simpler to obey -- to a work you believe others may find valuable could be the single most important thing you do for the future advancement of sentient life.

updated: 2013-02-14

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