Philippe Laurent gave an overview of cases involving “Open Licences before European Courts”. He did not list one recent “open content” case, Gerlach vs. DVU.

Ambjörn Elder on “The Methods of FOSS Activism” spoke about political activism; a worthy topic, but I hope for more discussion of activism for software freedom, rather than against ever worse policy.

In place of Armijn Hemel’s “Goes into an Executable? Identifying a Binary’s Sources by Tracing Build Processes” (missed flight) Kuhn and Sandler excerpted from a presentation on and took questions regarding nonprofit homes for free software projects. Writing this reminded me to make a donation to Software Freedom Conservancy, of which Kuhn and Sandler are respectively ED and Secretary of. Somewhat tangentially, I don’t find the topic boring, but I do find the lack of information, informed-ness (including mine), and tools regarding it boring. I don’t know of any libre documentation on running a nonprofit — I’d love to see a series of FLOSS Manuals on this. OneClickOrgs is a fairly new free software project to handle some aspects of governing a small organization, but I don’t know how useful it is at this point. Related to lack of documentation, some of the Q&A emphasized how little people know of these topics across jurisdictions — nevermind rule minutiae, even the existence of relevant “home” organizations.

Dave Neary on “Grey Areas of Software Licensing” questioned whether one could legally do various things, using examples largely drawn from GIMP development. The answer is always maybe. Fortunately developers sometimes take that as yes.

Allison Randal gave an overview of FLOSS history with a focus on legal arrangements in “FLOSSing for Good Legal Hygiene: Stories from the Trenches”.

Michael Meeks on “Risks vs. Benefits on Copyright Assignment” made the case that assignment (and some non-assingment contributor agreements) is harmful to participation, and proprietary re-licensing has not proven a good business, so a corporate sponsored software project ought to either be free (sans assignment and potential for propreitary relicensing) or proprietary, and fully enjoy the benefits of one or the other, rather than neither. He also indicated that permissive licensing can be better than copyleft for a free software project with copyrights held by a corporation, as the former gives all effectively equal rights, while the latter abets proprietary relicensing and ridiculous claims that the corporate sponsor will protect the community. Meeks repeatedly called on the FSF to abandon assingment, as for-profits disingenuously cite FSF’s practice in support of their own (FSF ED John Sullivan responded that they are getting corrections made where FSF practice is inappropriately cited and will work on explaining their practice better). Finally, Meeks requested an “ALGPL” which would require sharing of modified sources used to provide a network service, like the AGPL, but allow modifications that only link to or the equivalent ALGPL codebase to not be shared. I don’t know whether he wants GPL or LGPL behavior if such modificaitons are distributed. I was somewhat chagrined (but understanding; just not enough time, and maybe nobody submitted a decent proposal) that this was the only¹ discussion of network services!

Loïc Dachary on “Can for-profit companies enforce copyleft without becoming corrupt like MySQL AB?” said yes, if they aren’t the sole copyright holders; on projects he is hired to work on, he seeks out additional contributors who will hold copyright independently.

John Sullivan in “Is copyleft being framed?” presented some new data, apparently replicable (based on Debian package metadata), showing that GPL-family licenses are used in the vast majority (did I hear 87%?) of Debian packages.

Richard Fontana on “The (possible) decline of the GPL, and what to do about it” suggested the need to start thinking about GPLv4, but I’m not sure for what issues² — doesn’t matter; if the particulars of licenses can make a big difference, requirements for the next version of important ones should always be a relevant topic, even if there is no expectation of creating another version for many years. Fontana also indicated that perhaps the next (massively adopted, presumably) copyleft might not be created by an existing steward³ (meaning the FSF, or obviously CC in many non-software fields), which I take as an indication that license innovation is possibly more important than compatibility and non-proliferation.

I don’t remember much of panels with Hugo Roy, Giovanni Battista Gallus, Bradley Kuhn, Richard Fontana on application stores and Ciarán O’Riordan, Benjamin Henrion, Deb Nicholson, Karen Sandler on software patents, as I was probably preparing for my talk, but I trust that free software is still important if mode of delivery changes slightly and that software patents ought be abolished.

I spoke on “⊂ (FLOSS legal/policy ∩ CC [4.0])” (slides: odp, pdf, slideshare). Contrary to my apology I didn’t blog much of the talk beforehand. I will get to all of the topics eventually.

Most of the slides from the day should be available soon on the DevRoom’s page. Some audio might be available as well eventually.

Kuhn demonstrated his qualifications for another fallback career: crowd crontol. Fontana blogged a summary of the devroom. Sandler gave the most important talk on FLOSS policy (but not at FOSDEM). Marble apparently did almost all the organizing. Thanks to all! There will be another legal/policy devroom next year.

Addendum 20120210: Richard Fontana offered these corrections:

³“growing concern that anti-license-proliferationism concentrates power in privileged Establishment organizations”

Existing copyleft licenses include conditions that would not exist (unless otherwise implemented) if copyright were abolished. In other words, copyleft does not merely neutralize copyright. But I occasionally¹ see claims that copyleft merely neutralizes copyright.

A copyleft license which only neutralized copyright would remove all copyright restrictions on only one condition: that works building upon a copyleft licensed work (usually as “adaptations” or “derivative works”, though other scopes are possible) be released under terms granting the same freedoms. Existing copyleft licenses have additional conditions. Here is a summary of some of those added by the most important (and some not so important) copyleft licenses:

I’ve read each of the above licenses at some point, but could easily misremember or misunderstand; please correct me.

There’s a lot more variation among them than is captured above, including how each condition is implemented. But my point is just that these coarse conditions would not be present in a purely copyright neutralizing license. To answer two obvious objections: “attribution”⁴ in each license above goes beyond the bare minimum license notice that would be required to satisfy the condition of releasing under sufficient terms, and “limit DRM” refers only to conditions prohibiting DRM or requiring parallel distribution (which all of those requiring modifiable form do in a way, indirectly; I’ve only called out those that explicitly mention DRM), not permissions⁵ granted to circumvent.

I’m not sure there’s a source for the idea that copyleft only neutralizes copyright. Probably it is just an intuitive reading of the term that has been arrived at independently many times. The English Wikipedia article on copyleft doesn’t mention it, and probably more to the point, none of the main FSF articles on copyleft do either. The last includes the following:

Proprietary software developers use copyright to take away the users’ freedom; we use copyright to guarantee their freedom. That’s why we reverse the name, changing “copyright” into “copyleft.”

Copyleft is a way of using of the copyright on the program. It doesn’t mean abandoning the copyright; in fact, doing so would make copyleft impossible. The “left” in “copyleft” is not a reference to the verb “to leave”—only to the direction which is the inverse of “right”.

Copyleft is a general concept, and you can’t use a general concept directly; you can only use a specific implementation of the concept.

This is very clear — the point of copyleft is to promote and protect (“guarantee” is an exaggeration) users’ freedom, and that includes their access to source. The major reason I like to frame copyleft as regulation⁶ is that if access to source is important to software freedom (or otherwise socially valuable), it probably makes sense to look for additional regulatory mechanisms which might (and appreciate ones that do) contribute to promoting and protecting access to source, as well as other aspects of software freedom. Such mechanisms mostly aren’t/wouldn’t be “copyleft” (though at this point, some of them would simply mandate a copyleft license), but the point is not a relationship with copyright, but promoting and protecting software freedom.

If software freedom is important, surely it makes sense to look for additional mechanisms to promote and protect it. As others have said, licenses are difficult to enforce and/or few people are interested in doing it, and copyleft can be made irrelevant through independent non-copyleft implementation, given enough desire and resources (which the largest corporations have), not to mention the vast universe of cases in which there is no free software alternative, copyleft or not. I leave description and speculation about such mechanisms for a future post.

⁶Regulation in the broadest sense, including at a minimum typical “government” and “market” regulation, as I’ve said before. By the way, it could be said that those who advocate only permissive licenses are anti-regulatory, and I imagine that if lots of people thought about copyleft as regulation, this claim would be made — but it would be a problematic claim, as permissive licenses don’t do much (or only do so “locally”, as Myers obliquely put it in the quote above) against the background regulation of copyright restrictions.

If you don’t feel like seeing a play in San Francisco, I recommend Jacob Appelbaum’s talk on surveillance, the security state, and free software at linux.conf.au 2012. It contains everything important Little Brother does and more, and isn’t fiction:

I also just watched Karen Sandler’s LCA talk, which I can’t recommend highly enough. It is more expansive than a short talk she gave last year at OSCON based on her paper Killed by Code: Software Transparency in Implantable Medical Devices.

I frequently complain that free/libre/open software and nearby aren’t taken seriously as being important to a free and otherwise good society and that advocates have completely failed to demonstrate this importance. Well, much more is needed, but the above talks give me hope, and getting Appelbaum and Sandler in front of as many people as possible would be great progress.

I repeat Evan as a reminder and apology. I’ve blogged many times about copyright licenses in the past, and will have a few detailed posts on the subject soon in preparation for a short talk at FOSDEM.

Given current malgovernance of the intellectual commons, public copyright licenses are important for freedom. They’re probably also important trials for post-copyright regulation (meant in the broadest sense, including at least “market” and “government” regulatory mechanisms), eg of ability to inspect and modify complete and corresponding source.

At the same time, the totemic and contentious role copyright licenses (and sometimes assignment or contributor agreements, and sometimes covering related wrongs and patents) play in free/libre/open works, projects, and communities often seems an unfortunate misdirection of energy at best, and probably looks utterly ridiculous to casual observers. I suspect copyright also takes at least some deserved limelight, and perhaps much more, from other aspects of governance, plain old getting things done, and activism around other issues (regarding the first, some good recent writings includes those by Simon Phipps and Bradley Kuhn, but the prominence of copyright arrangements therein reinforces my point). But this all amounts to an additional reason it is important to get the details of public copyright licenses right, in particular compatibility between them where it can be achieved — so as to minimize the amount of time and energy projects put into considering and arguing about the options.

Obviously the energy put into public licenses is utterly insignificant against that spent on other copyright/patent/trademark complex activities. But I’m not going to write about that in the near future, so it isn’t part of my apology and rationalization.

Someday I hope that knowing the ins and outs of both Internal Passports of the mind and international passports will be like knowing the rules of internal passports in Communist East Germany (presumably intricate; I did not look for details, but hopefully they exist not many hops from a Wikipedia article on Eastern Bloc emigration and defection).

How awesome is @niemanlab’s “faded” sidebar? And zen mode? That’s a site that cares about its readers.

You can view an archived version of the Nieman Lab site should their design change. The top of the sidebar isn’t faded, but overall I think the fading there is makes it a little easier to concentrate on a post without switching to “zen” mode (removing all navigation).

For my theme, I made the sidebar always faded except when hovered over, and float to the right as far away from the main content area as possible. All “header” content is in the sidebar so that there’s nothing preceding a post’s title.

I intended to remove anything hardcoded^* for my blog, anything I don’t understand or not used, and anything that doesn’t validate, but I didn’t get very far on any of those. I doubt this will be useful to anyone, but patches welcome.

^*Yes it is also a little ironic I’ve never bothered to published modified source used to run this blog until now.

Another, much bigger, tiresome rearguard action. I’m impressed by protesters’ nearly universal and exclusive focus on encouraging readers to contact U.S. Congresspeople. I hope it works. SOPA and PIPA really, really deserve to die.

But the protest also bums me out.

1) Self-censorship (in the case of sites completely blacked out, as opposed to those prominently displaying anti-SOPA messages) is not the Internet at its best. If that claim weren’t totally ridiculous, the net wouldn’t be worth defending. It isn’t even the net at its political best — that would be creating systems which disrupt and obviate power — long term offensives, not short-term defenses.

2) Near exclusive focus on supplication before 535 [Update: 536] ultra-powerful individuals is kinda disgusting. But it needs to be done, as effectively as possible.

3) I haven’t looked at a huge number of sites, but I haven’t seen much creativity in the protest. Next time it would be fun to see an appropriate site (Wikipedia? Internet Archive?) take what Flickr has done and add bidding for the “right” to darken particular articles or media as a fundraiser. Art would be nice too — I’d love to hear about anything really great (and preferably libre) from this round.

4) While some prominent bloggers have made the point that “piracy” is not a legitimate problem, overwhelmingly the protest has stuck to defense — SOPA and PIPA would do bad things to the net, and wouldn’t “work” anyway. Google goes much further, saying “End Piracy, Not Liberty” and “Fighting online piracy is important.” Not possible, wrong, and gives away the farm.

5) Nobody making the point that everyone can help with long-term offensives which will ultimately stop ratcheting protectionism, if it is to be stopped. Well, this nobody has attempted:

[I]magine a world in which most software and culture are free as in freedom. Software, culture, and innovation would be abundant, there would be plenty of money in it (just not based on threat of censorship), and there would be no constituency for attacking the Internet. (Well, apart from dictatorships and militarized law enforcement of supposed democracies; that’s a fight intertwined with SOPA, but those aren’t the primary constituencies for the bill.) Now, world dominationliberation by free software and culture isn’t feasible now. But every little bit helps reduce the constituency that wishes to attack the Internet to possibly protect their censorship-based revenue streams, and to increase the constituency whose desire to protect the Internet is perfectly aligned with their business interests and personal expression.
…
I’d hope that at least some messages tested convey not only the threat SOPA poses to Wikimedia, but the long-term threat the Wikimedia movement poses to censorship.

Also:

Bad legislation needs to be stopped now, but over the long term, we won’t stop getting new bad legislation until policymakers see broad support and amazing results from culture and other forms of knowledge that work with the Internet, rather than against it. Each work or project released under a CC license signals such support, and is an input for such results.

And:

Finally, remember that CC is crucial to keeping the Internet non-broken in the long term. The more free culture is, the less culture has an allergy to and deathwish for the Internet.

…

Of the five items I list above, the first three are admittedly peevish. Four and five represent not so much problems with the current protest as they do severe deficiencies in movements for intellectual freedom. Actually they are flipsides of the same deficiency: lack of compelling explanation that intellectual freedom, however constructed and protected, really matters, really works, and is really for the good. If such were well enough researched and explained so as to become conventional wisdom, rather than contentious and seemingly radical, net freedom activists could act much more proactively, provocatively, and powerfully, rather than as they do today: with supplication and genuflection.

I am not at all well read, but my weak understanding is that the withdrawal of economists from studying intellectual protectionism in the late 1800s was a great tragedy. To begin the encourage rectification of that century plus of relative neglect, today is a good day to start reading Against Intellectual Monopoly.

In the meantime, the actual and optimal counterfactual drift further apart, without any help from SOPA and PIPA.

Open Hardware License. The open hardware movement received a boost when CERN published an Open Hardware License (“CERN OHL”). The CERN OHL is drafted as a documentation license which is careful to distinguish between documentation and software (which is not licensed under the CERN OHL) http://www.ohwr.org/documents/88. The license is “copyleft” and, thus, similar to GPLv2 because it requires that all modifications be made available under the terms of the CERN OHL. However, the license to patents, particularly important for hardware products, is ambiguous. This license is likely to the first of a number of open hardware licenses, but, hopefully, the open hardware movement will keep the number low and avoid “license proliferation” which has been such a problem for open source software.

But the CERN OHL isn’t the first “open hardware license”. Or perhaps it is the nth first. Several free software inspired licenses intended specifically for open hardware design and documentation have been created over the last decade or so. I recall encountering one dating back to the mid-1990s, but can’t find a reference now. Discussion of open hardware licenses was hot at the turn of the millennium, though most open hardware projects from that time didn’t get far, and I can’t find a license that made it to “1.0″.

People have been wanting to do for hardware what the GNU General Public License has done for software and trying to define open hardware since that timeframe. They keep on wanting (2006) and trying (2007, 2011 comments).

Probably the first arguably “high quality” license drafted specifically for open hardware is the TAPR Open Hardware License (2007). The CERN OHL might be the second such. There has never been consensus on the best license to use for open hardware. Perhaps this is why CERN saw fit to create yet another (incompatible copyleft at that — incompatible with TAPR OHL, GPL, and BY-SA), but there still isn’t consensus in 2012.

Licenses primarily used for software (usually [L]GPL, occasionally BSD, MIT, or Apache) have also been used for open hardware since at least the late 1990s — and much more so than any license created specifically for open hardware. CC-BY-SA has been used by Arduino since at least 2008 and Qi since 2009.

In 2009 the primary drafter of the TAPR OHL published a paper with a rationale for the license. By my reading of the paper, the case for a license specific to hardware seems pretty thin — hardware design and documentation files, and distribution of printed circuit boards seem a lot like program source and executables, and mostly subject to copyright. It also isn’t clear to me why the things TAPR OHL handles differently than most open source software licenses (disclaims strictly being a copyright license, instead wanting to serve as a clickwrap contract; attempts to describe requirements functionally, instead of legally, to avoid describing explicitly the legal regime underlying requirements; limited patent grant applies to “possessors” not just contributors) might not be interesting for software licenses, if they are interesting at all, nor why features generally rejected for open source software licenses shouldn’t also be rejected for open hardware (email notification to upstream licensors; a noncommercial-only option — thankfully deprecated late last year).

Richard Stallman’s 1999 note about free hardware seems more clear and compelling than the TAPR paper, but I wish I could read it again without knowing the author. Stallman wrote:

What this means is that anyone can legally draw the same circuit topology in a different-looking way, or write a different HDL definition which produces the same circuit. Thus, the strength of copyleft when applied to circuits is limited. However, copylefting HDL definitions and printed circuit layouts may do some good nonetheless.

In a thread from 2007 about yet another proposed open hardware license, three people who generally really know what they’re talking about each wondered why a hardware-specific license is needed: Brian Behlendorf, Chris DiBona, and Simon Phipps. The proposer withdrew and decided to use the MIT license (a popular non-copyleft license for software) for their project.

My bias, as with any project, would be to use a GPL-compatible license. But my bias may be inordinately strong, and I’m not starting a hardware project.

One could plausibly argue that there are still zero quality open hardware specific licenses, as the upstream notification requirement is arguably non-open, and the CERN OHL also contains an upstream notification requirement. Will history repeat?

Addendum: I just notice the existence of an open hardware legal mailing list, probably a good venue to follow if you’re truly interested in these issues. The organizer is Bruce Perens, who is involved with TAPR and is convinced non-copyright mechanisms are absolutely necessary for open hardware. His attempt to bring rigor to the field and his decades of experience with free and open source software are to be much appreciated in any case.

My employer’s office moved from San Francisco to Mountain View in April, contributing to a number of people leaving or transitioning out, which has been a bummer. I’ve been working exclusively from home since May. Still, there have been a number of good developments, which I won’t attempt to catalog here. My favorites include agreement with the Free Software Foundation regarding use of CC0 for public domain software, small improvements in the CC legal user interface, the return and great work of a previous colleague, retirement of two substandard licenses, research, and a global summit/launch of a process toward version 4.0 of the CC licenses, which I hope over the next year prove at least a little bit visionary, long-standing, and have some consideration for how they can make the world a better place.

Speaking of which, I’ve spent more time thinking about social science-y stuff in 2011 than I have in at least several years. I’ll probably have plenty to say regarding this on a range of topics next year, but for now I’ll state one narrow “professionally-related” conclusion: free/libre/open software/culture/etc advocates (me included) have done a wholly inadequate job of characterizing why our preferences matter, both to the general public and to specialists in every social science.

Apart from silly peeves, two moderate ideas unrelated to free/libre/open stuff that I first wrote about in 2011 and I expect I’ll continue to push for years to come: increasing the minimum age and education requirement for soldiers and tearing down highway 980.

I haven’t done much programming in several years, and not full time in about a decade. This has been making me feel like my brain is rotting, and contributes to my lack of prototyping various services that I want to exist. Though I’d been fiddling (that may be generous) with Scala for a couple years, I was never really super excited about tying myself to the JVM. I know and deeply respect lots of people who doing great things with Python, and I’ve occasionally used it for scripts over the past several years because of that, but it leaves me totally non-enthused. I’ve done enough programming in languages that are uglier but more or less the same, time for something new. For a couple months I’ve been learning Haskell and doing some prototyping using the Yesod web framework (apparently I had heard of Haskell in 2005 but I didn’t look at it closely until last year). I haven’t made as much progress as I’d like, mostly due to unrelated distractions. The biggest substantive hurdle has not been Haskell (and the concepts it stands for), but a lack of Yesod examples and documentation. This seems to be a common complaint. Yesod is rapidly moving to a 1.0 release, documentation is prioritized, and I expect to be really productive with it over the coming year. Thanks to the people who make Yesod and those who have been making Haskell for two decades.

This year I appreciated three music projects that I hadn’t paid much attention to before, much to my detriment: DNA, Moondog, and especially Harry Partch. I also listened a lot again to one of my favorite bands I discovered in college, Violence and the Sacred, which amazingly has released some of its catalog under the CC BY-SA license. Check them out!

Finally, in 2011 I had the pleasure of getting to know just a little bit some people working to make my neighborhood a better place, attending a conference with my sister, seeing one of my brothers start a new job and the other a new gallery, and with my wife of continuing to grow up (in that respect, the “better half” cliche definitely applies). Now for this world to end!

Go Daddy’s^* pro-SOPA marketing failures made Namecheap’s action straightforward relative to companies not directly competing with Go Daddy. However, there are lots of other domain name registrars, none of which has done anything with Namecheap’s marketing savvy. Another registrar, Gandi (which I’ve used and recommended for some time, and has supported Creative Commons and other good causes), like Namecheap is donating a portion of domain transfers to the Electronic Frontier Foundation, but doesn’t seem to be making a big deal of it, and their anti-SOPA blog post is rather tepid. Compare to Namecheap’s anti-SOPA blog post, which isn’t all that much stronger in terms of substance (contains genuflection to “intellectual property”), it is much more strongly worded and simply more effectively written.

One other company has a support-EFF-against-SOPA tie-in. That company, Zopim, provides website chat services, and doesn’t seem to compete with Go Daddy at all. I’m not interested, but never would have heard of them otherwise. Any company could do that.

(I see that sometime today two other small domain registrars have added support-EFF-against-SOPA deals. Good for Suspicious Networks and Centuric.)

What inspired to me write this post is that Namecheap isn’t only taking gratis publicity. They’re also running presumably paid ads as part of their anti-SOPA marketing campaign:

While trying to get the above ad to load again (noticed out of the corner of my eye but didn’t register until sometime after — I’m oddly trying to recover from ad blindness), I noticed another Namecheap ad, which if you’re already really tuned in, illustrates nicely the imperfect options available from a software freedom perspective for domain registration and other nearly commodity services.

Check out more anti-SOPA and pro-freedom actions.

^*Isn’t the name “Go Daddy” ridiculous? That, coupled with a super cheesy website and company logo led me to disregard them long before they started shooting sexy elephants at gladiator events, or whatever got people upset before they supported SOPA.

Congratulations to Mozilla on their $300m/year deal with Google, which will more than double current annual revenue. I’ve always thought people predicting doom for Mozilla if Google failed to renew were all wrong — others would be happy to pay for the default search position; probably less since Microsoft, Yahoo, and others make less than Google per ad view, but it’d still be a very substantial amount — and the link article hints that a Microsoft bid drove the price up.

There’s always a risk that Mozilla won’t spend the money well, but I’m pretty confident that they will. Firefox is excellent, and in 2011 has gotten more excellent, faster, and I think many of the other projects they’re doing are really important, and on the right track (insofar as I’m qualified to discern, which is not much), for example BrowserID. Even in small and hopelessly annoying things, like licensing, I think Mozilla is doing good. (Bias: Mozilla has donated to my employer.)

I’m no longer enthused about the possibility of huge resources for progress toward Wikimedia’s vision from advertising on Wikipedia. Since I was last on that bandwagon, it has become even less of a possibility in anything but the distant future: Wikimedia’s donation campaigns have gone very well, adequately funding its operating mission, and lack of advertising has become even more part of Wikimedia’s messaging; I’ve also become more concerned (not in particular to Wikimedia) about the institutional corruption risks previously blogged by Peter McCluskey and Timothy B. Lee. (Note these objections don’t apply to Mozilla: its significant revenue has always been advertising-based; very roughly its revenues are already 10x those of Wikimedia’s; and it is also building up an individual donor program, which I agree is often the healthiest revenue for a nonprofit.)

But I still very much think freedom needs massive, ongoing resource infusions, in the right institutional framework. I celebrate the tremendous benefits of the FLOSS community achieves without massive, concentrated, ongoing resource infusions, but I also admit that the web likely would be much worse, much less webby, and much less free without concentrated resources at Mozilla over the last several years.

Thank you Mozillians, and congratulations. I have very high expectations for your contributions over the next years to the web and society, in particular where more freedom and security are obviously needed such as mobile and software services. Such would be just a start. As computation permeates everything, and digital freedom becomes the most important political issue, the resources of many Mozillas are needed. More on that, soon.