Recently discussions about new licensing models for open cooperative production have come up (again). This discussion resurrects the “Peer Production License” proposed in 2010 by John Magyar and Dmytri Kleiner [1] which is also available on the p2pfoundation website [2] although it’s not clear if the latter is a modified version. The license is proposed by Michel Bauwens and Vasili Kostakis accompanied by a theoretical discussion [3] why such a license would enhance the current state of the art in licensing. The proposal has already sparked criticism in form of critical replies which I will cite in the following where appropriate.
The theoretical argument (mostly base on marxist theories I don’t have the patience to dig into) boils down to differentiating “good” from “bad” users of the licensed product. A “good” user is a “workerowned business” or “workerowned collective” [2] while a “bad” user seems to be a corporation. Note that the theoretical discussion seems to allow corporate users who contribute “as IBM does with Linux. However, those who do not contribute should pay a license fee” [3] (p.358). I’ve not found a clause in the license that defines this contribution exception. Instead it makes clear that “you may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation”. Finally it is made clear “for the avoidance of doubt” that “the Licensor reserves the exclusive right to collect such royalties for any exercise by You of the rights granted under this License” [2].
With the cited clauses above the “new” license is very similar to a Creative Commons license with a non-commercial clause as others have already noted [4] (p.363). Although the missing clauses in the license for a contribution exception for non-workerowned collectives or businesses is probably only an oversight — Rigi [5] (p.396) also understands the license this way — this is not the major shortcoming.
For me the main point is: who is going to be the institution to distinguish “good” from “bad” users of the product, those who have to pay and those who don’t? The license mentions a “collecting society” for this purpose. Whatever this institution is going to be, it might be a “benevolent dictator” [6] at the start but will soon detoriate into a real dictatorship. Why? As the software-focused “benevolent dictator for life” Wikipedia article [7] notes, the dictator has an incentive to stay benevolent due to the possibility of forking a project, this was first documented in ESRs “Homesteading the Noosphere” [8]. Now since our dictator is the “Licensor [who] reserves the exclusive right to collect such royalties” [2] there are other, monetary, incentives for forking a project which has to be prevented by other means covered in the license. Collection of royalties is incompatible with the right to fork a project. We have an “owner” who decides about “good” vs. “bad” and uses a license to stay in power. A recipe for desaster or — as a friend has put it in a recent discussion “design for corruption” [9].
Other problems are the management of contributions. As Meretz has already pointed out, “only people can behave in a reciprocal way” [4] (p.363). Contributors are people. They may belong to one instution that is deemed “good” by the dictator at one point and may later change to an institution that is deemed “bad” by the dictator. So a person may be excluded from using the product just because they belong to a “bad” institution. Take myself as an example: I’m running an open source business for ten years “primarily intended for or directed toward commercial advantage or private monetary compensation” [2]. I guess I wouldn’t qualify for free use of a “peer production license” licensed product. One of the reasons for success of open source / free software like Linux was that employees could use it for solving their day-to-day problems. This use often resulted in contributions, but only after using it for some time.
Which leads to the next problem: The license tries to force “good” behaviour. But you must first prove to be “good” by contributing before you’re eligible for using the product. As noted by Rigi the “GPL stipulated reciprocity does not fit into any of these forms [usually known to economists (my interpretation)]” [5] (p.398) because a contributor always gets more (e.g. a working software package) than his own contribution. This exactly is one if not the main reason people are motivated to contribute. Openness creates more ethical behaviour than a license that tries to force ethics. Force or control will destroy that motivation as exemplified in the Linus vs. Tanenbaum discussion where Tanenbaum stated:
If Linus wants to keep control of the official version, and a group of eager beavers want to go off in a different direction, the same problem arises. I don’t think the copyright issue is really the problem. The problem is co-ordinating things. Projects like GNU, MINIX, or LINUX only hold together if one person is in charge. During the 1970s, when structured programming was introduced, Harlan Mills pointed out that the programming team should be organized like a surgical team–one surgeon and his or her assistants, not like a hog butchering team–give everybody an axe and let them chop away.
Anyone who says you can have a lot of widely dispersed people hack away on a complicated piece of code and avoid total anarchy has never managed a software project. [10] (Post 1992-02-05 23:23:26 GMT)
To which Linus replied:
This is the second time I’ve seen this “accusation” from ast, who feels pretty good about commenting on a kernel he probably haven’t even seen. Or at least he hasn’t asked me, or even read alt.os.linux about this. Just so that nobody takes his guess for the full thruth, here’s my standing on “keeping control”, in 2 words (three?):
I won’t.
[10] (Post 1992-02-06 10:33:31 GMT)
and then goes on to explain how kernel maintenance works (at the time).
What becomes clear from this discussion is that the main focus of chosing a license is to attract contributors — preventing others from appropriating a version or influencing derived works is only secondary. Many successful open source projects use licenses that are more permissive than the GNU General Public License GPL Version 2 [11], and the new Version 3 of the GPL [12] which is more restrictive sees less use. The programming language Python is a prominent example of a successful project using a more permissive license [13]. Armin Ronacher documents in a blog post [14] that there is a trend away from the GPL to less restricitive licenses. This is also confirmed statistically by other sources [15].
One reason for this trend is the growing mess of incompatible licenses. One of the ideas of open source / free software is that it should be possible to reuse existing components in order not to reinvent the wheel. This is increasingly difficult due to incompatible licenses, Ronacher in his essay touches the tip of the iceberg [14]. License incompatibility has already been used to release software under an open source license and still not allowing Linux developers to incorporate the released software into Linux [14].
Given the reuse argument, adding another incompatible license to the mix (the proposed Peer Production License is incompatible with the GPL and probably other licenses) is simply insane. The new license isn’t even an open source license [16] much less fitting the free software definition [17] due to the commercial restrictions, both definitions require that the software is free for any purpose.
When leaving the field of software and other artefacts protected by copyright we’re entering the field of hardware licensing. Hardware unlike software is not protected by copyright (with the exception of some artefacts like printed circuit boards, where the printed circuit is directly protected by copyright). So it is possible for private or research purposes to reverse-engineer a mechanical part and print it on a 3D printer. If the part is not protected by a patent, it is even legal to publish the reverse-engineered design documents for others to replicate the design. This was shown in a study for UK law by Bradshaw et. al. [18] but probably transcends to EU law. Note that the design documents are protected by copyright but the manufactured artefact is not. This has implications on the protection of open source hardware because this finding can be turned around. A company may well produce an open source design without contributing anything back, even a modified or improved design which is not given back to the community would probably be possible.
Hardware could be protected with patents, but this is not a road the open source community wants to travel. The current state in hardware licensing seeks to protect users of the design from contributors who later want to enforce patents against the design by incorporating clauses where contributors license patents they hold for the project. This was pioneered by the TAPR open hardware license [19] and is also reflected in the CERN open hardware license [20].
To sum up: Apart from the inconsistencies in the theoretical paper [3] and the actual license [2] I pointed out that such a license is a recipe for corruption when money is involved due to the restrictions of forking a project. In addition the license would hamper reuse of existing components because it adds to the “license compatibility clusterfuck” [14]. In addition it won’t protect what it set out to protect: Hardware artefacts — except for some exceptions — are not covered by copyright and therefore not by a license. We can only protect the design but the production of artefacts from that design is not subject to copyright law.
Last not least: Thanks to Franz Nahrada for inviting me to the debate.