Null Value

We all learn that open source licenses make open source community possible. And then we learn they’re the one piece of that community we’re not to touch. Flame about them? Sure. Hack on them? Forget about it.

We all learn the origin stories of GNU and Free Software. How hacker spirit and some clever lawyering turned copyright around on itself, and stuck it to the NDA-wielding, binary-distributing Man. And at some point, we all gather that those brash, creative days are over. That we’re best off picking one of the songbook standards — MIT, BSD, GPL for the brave and true — faithfully reproducing onto our code, and praying to the Law Gods for no more than our just share of drama.

“Don’t write your own license”, they say. And for a thousand good reasons, I usually say so, too. Even to fellow lawyers. Especially to this one.

I lay the main part of the moral evacuation of licensing at copyleft’s feet. The copyleft license authors picked a very hard problem — more noble still for being hard — and plotted a course past many mines nobody knew lay in wait. Teeth rattled.

Copyleft was, at its core, a very, very clever hack. One of the great ones in my profession’s long history. Give a public license, but use conditions to incentivize valued behavior, against the grain of copyright’s prevailing policy view. Brilliant. But about as un-fun and tedious to maintain and apply, long term, as any other hack. Tenuous, unexpected, novel, and weird enough to be indisputably clever. But unexpected behavior from systems not designed with such behavior in mind. And in the end, DRM won. And surveillance. And proprietary platforms. And opaque Software as a Service.

The result is a grotesque extension of industry-friendliness, to an extent I don’t believe the coiners of “Open Source” ever desired or intended. With the exception of GPL “crazies”, whose presence must be tolerated, mostly no thanks to long-serving system software, for-profit users of open source software can grasp and take from a self-selecting heap of raw software material with even less concern for the non-product views and characteristics of open source software developers than employees on payroll. Free — as in beer — software literally falls from the sky. It doesn’t want payroll, insurance, or even, apparently, much respect for its time, previously sunk or presently requested. The give side of this give-take equation suffers much well-financed, lottery-winner-style celebration, to predictable and potentially tragic effect.

One definition of “sustainability” is perpetual harvest at this eat-all-you-can-pick plantation, seeded with proprietary software thrown over the wall, and mulched by a diverse population of code-capable, transient, and short-lived economic microorganisms. That definition also jives with a very hard technical view of Open Source purpose: if good software keeps coming out, Open Source is working, and casualties don’t count. I don’t resonate with that view, personally, but in any event, my professional obligations run to others who see a different way. Other than natural industry alliance, there’s nothing essential or inevitable about it, as the prime meaning of “Open Source”.

If copyleft was version one of hacker values in legal code, it’s no surprise bugs were found and squashed. It would come as no surprise that finding and implementing community values in legal code might evolve as an art. But that takes writing licenses.

Write them. Crazies needed.

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