The Dangers of a Post-License Era

Off the Beat: Bruce Byfield's Blog

You don't see many discussions about free software licenses any more. Once a burning issue, licenses and their implications hardly seem to be mentioned these days. Increasingly, we seem to be moving into a post-license era, and the implications for free and open source software are potentially troubling.

 
The reasons for this apparent shift of interest aren't hard to find. To start with, most of the important license issues have already been resolved.  It's hard to imagine any licensing issue today that would be as significant to the community at large as the release of the OpenOffice.org code in 2000, or of the discussion of the third version of the GPL in 2005-07.

Yes, the occasional licensing stories do occur. But today's license story tends to be routine, and not to affect everyday users. For instnace while I'm sure that the adoption of The Apache License was important news to those involved with Apache OpenOffice, to every day users, it mattered very little -- especially since they were more likely to be using LibreOffice.

The major licensing stories in the last eighteen months have been discussions about whether the GNU General Public Licenses (GPL) are declining or not. But again, this is an issue that has no noticeable effect on many users. So far as it matters to anyone, the popularity of the GPL is a concern for those in business since it implies that BSD-style permissive licenses are gaining popularity. But even if that is true, it is hardly a moment of liberation, or a sign that FOSS is dominating technology. To many, licensing must seem like yesterday's battle, and one that FOSS won years ago.

 
 Another reason for the lack of interest in licensing may be the rise of online applications, from Facebook to GoogleDocs and cloud storage. What matters for most users of these services is probably not whether they use the Affero General Public License, but the fact that basic services are convenient and cost nothing.

 
 For those who never stop to think about the matter, the difference between a free service and a GPL license is non-existent. In fact, if you are hoping to monetize the code, a free service is preferable, because it allows the developers to avoid the obligations of giving back to the community. But in the short run, the difference between free-licensed and free to use seems trivial unless you make the habit of thinking about issues like privacy and user freedom. As Tim O'Reilly warned some years ago, for those who use them, online applications have made license issues appear irrelevant.

 
The licensing vaccine
 
 However, my worry is that the main reason people are becoming careless about licenses is the same reason that people are becoming careless about vaccines -- they think that licensing no longer matters because or may even be harmful, because they forget what things were like before.

 
In other words, people assume that free licenses may no longer be important precisely because those license have been so successful. Despite being called communistic and unAmerican in the past, licenses like the GPL now have a hard-won respectability. The temptation sometimes seems to be to treat them like unions, conceding that they might have been necessary once, but dismissing them as  unimportant now and ignoring the possibility that their position could ever be eroded.

To say the least, this position seems short-sighted. The fact that free licenses have been successful is no guarantee that that they could never be discarded in favor of a proprietary perspective in which they are no more important than the question of trans-substantiation, which people once hurt and killed people over.
Just as importantly, as Biella Coleman points out in Coding Freedom, an awareness of licensing has always given FOSS participants their sense of identity and fuelled their idealism. It is in arguing over licensing issues and how they apply that FOSS participants differentiated themselves from other developers. It is the implication of licenses that radicalized them given them a common sense of purpose that goes beyond the regular committing of code.

Or do you dismiss as an accident the fact that where the details of licenses has always been argued most intensely -- for instance, in the Debian project -- that FOSS values have always been held the most intensely?

The implications for the future
Some might argue that a post-license era would be a sign of maturity and proof that FOSS has arrived. Maybe, but an awareness of licenses is so central to the entire idea of FOSS, that I wonder if one can exist without another.

My concern is that the signs of a post-license era indicate a time of decreased importance for FOSS, of a lessening of the idealism that has made FOSS so successful to date. Licensing has always been FOSS, and whether you can have one without the other seems doubtful.

Probably, FOSS licenses will not disappear altogether, any more than Debian did when Ubuntu appeared, or the Free Software Foundation did when The Linux Foundation was announced. But if they survive, they will probably do so in a much-weakened position, with permissive licenses becoming more important than copyleft ones, and even permissive licenses taking second place to cost-free services.

In fact, sometimes, I can't help thinking that FOSS would be better off if a licensing issue developed that would keep everyone focused on the importance of licenses. Otherwise, we may be all too likely to be drifting into a post-license era in which FOSS is greatly weakened at best, and dismissed as irrelevant at worst.