Next: The Awe of Cryptography
Recently I've stumbled over this graph (here's the original article):
The number of projects with a license on GitHub is steadily decreasing. At the moment we are below 20%.
The projects without license can in theory be considered open source (the source is published after all) but legally, the copyright is still owned by the authors and using it means infringing their copyright.
The interesting question is why would anyone make such a contradictory statement? Why would they make the code physically available to everyone and yet make it legally unavailable?
One possibility is that people are just lazy. Adding a license to a project is work and they don't care enough to do it.
There's a different possibility though. It's going to be weird, but bear with me, I have a point to make…
So, the other possibility is that authors deliberately reject the legal system per se. The reasoning can go as follows: I do care about my peers using my software. I don't give a damn about whether the lawyers and mega-corporations they work for use it. So, if you are like me and you don't care about all the intellectual property antics, here's my project, feel free to use it. If you are the kind of moron who wants to have their legal ass covered, go screw yourself.
Put this way, publishing without license is a much more radical statement than GPL is. Where RMS says: "You can use my stuff if you buy into the idea of free software," people publishing without license say: "You can use my stuff if you are willing to ignore the law." It's a bit like when you want to join mafia and they ask you to beat an innocent bystander to prove your contempt for the rule of law.
Which brings us to the concept of a failed state. Failed state is a state that exists on paper only. People living in the area don't care about the state and don't abide by its laws. Sure, there are some guys in Mogadishu who call themselves government, but they are as relevant as the nut next door who believes that he's the king of France. In the meantime you have to cope with all the gangs operating in the neighbourhood and get at least something to eat.
The important observation here is that most of the citizens of a failed state aren't radical anarchists who actively fight against the state. In fact, almost all of them would prefer a semi-decent state to the grim conditions they have to live in. It's just that everyone ignores the rule of law and to observe it yourself would be foolish, bordering on suicidal.
Let's get back to software licenses. What I am trying to say is that you don't have to be a devoted anarchist to not add a license to your project. You can as well be too lazy to do so. But in both cases, the effect is the same: The law becomes less relevant. It's a step towards the failed state.
But law is pretty efficient with dealing with few renegades who don't want to respect it, right? The radicals get incarcerated and everything is back to normal. It's only when people start to defect from the rule of law en masse that we have to worry about failing state…
Now looks at the graph above. 80% of people have already defected. That may be comparable to Somalia in 1990's.
The state have already failed in the open source land.
And it's not hard to figure out why. It is often said that law is a kind of trade-off. You give up some of your personal freedom and what you get in return is a civilised way of resolving conflicts. But in the world of open source it's hard to think about it as a trade-off. You get obstacles and all kinds of legal threats, even criminalisation of what is, in many ways, a philanthropic enterprise. You get crypto wars and you get software patents and you get copyrightable APIs. And you get nothing in return. Can you think of a single case where law have helped you solve a problem you had in open source land?
So far, the semblance of rule of law is maintained by big projects that still do have licenses. But look at the graph again! The respect for law is dropping. At some point even the important projects will have no license which will make them unusable by anyone who has any respect for law. In short, licensing Armageddon is nigh.
So, what should we do?
I believe that at the point when the situation get unbearable, the legislators will be badly pressed to solve the problem in some way. What would they do? Would they abolish copyright to make unlicensed projects available to everyone? Who knows. However, state being an exercise in oportunism, they will most likely try to incorporate the informal mechanisms and policies of open source world into the body of law and the body of state.
Therefore, we should take care what mechanisms and policies we are using. One day, they may become a law.
Martin Sústrik, May 16th, 2016
Next: The Awe of Cryptography
None of my projects includes a license, and your explanation here fits with my vague rationalizations about this in the past. Thanks for helping to clarify them!
Though a friend points out a hole in the argument. The % of projects reducing doesn't mean any individual project has actually "defected" by removing a license. People are just using github for various levels of informal projects. This was something they weren't doing back when Github started out. I'd be curious to see the raw number of repositories with licenses over time. Or perhaps the % repos over a certain size that have licenses.
Another point from my friend: "The fact that GitHub's license picker feature (July 2013; https://github.com/blog/1530-choosing-an-open-source-license) increased license use by *half* strongly suggests the explanation is laziness."
The point I was trying to make, but probably haven't articulated clearly enough, is that states don't fail because people consciously and deliberately oppose the idea of state. They fail because people start, often for for very mundane and trivial reasons, to ignore the law. Because of laziness, for example.
The picker thing actually provides us with a natural experiment that measures commitment to rule of law in open source community: ~15% developers are willing to add a license to their project if the cost goes down from 30 minutes (I guess that's how much it takes to read about major licenses in wikipedia) to 1 minute (license picker).
I bet even Somalia would fare better.
Great comparison. Excellent read.
What about an Anarchist License? Like: "this is my code, you can use it as you please, but if you do something that bothers me, I would be able to sue you! :)"
This sounds like the opposite of anarchism.
only valid anarchistic license:
Ⓐ. All Rites reversed.
"Laziness" is a bit of a weasel word here, isn't it? It suggests moral failing on the part of individuals. But it's meaningful only relative to the difficulty of a specific task. And it's the government that mandates a task and makes the burden of compliance (forms, inspections, appearances, etc.) more or less difficult. So the example of GitHub introducing its license picker can also be read as an example of the government reducing the burden of compliance, becoming more efficient, actually helping its people comply with laws.
IMO, this is wild (and unrealistic) optimism.
Regulatory capture of the copyright system by corporate interests is near-complete (see also, the Mickey Mouse curve); it's doubtful that any rewrite for the sake of open source would ever occur.
If any rewrite occurs at all (most probably for unrelated reasons) it's very likely to be driven by entrenched (and monied) interests, without even looking at "the informal mechanisms and policies of open source world."
I don't have a license on my project because 1) I'm just using it as free online backup, and 2) I'm not done developing it. Once it's finished and released, I'll add a license. I'm guessing the other 80% of the projects are similar.
Somalia has been a society of clans. It is said that there were war and chaos in somalia because united nations spent a billion dollars to set up a somali clan as a government and clans fought each other to become the government. At the end, no clan became the government. Not every region is compatible with the idea of nation states.
For about a thousand years, somalis have maintained a private legal system called Xeer which existed with or without government laws. With xeer, each clan has laywers and judges, and people are free to ignore clan judges when they think judges are unfair. A book named "The Law of the Somalis" describes how Xeer works well.
If you read statistics, somalia is not bad, compared to other countries with goernments. Annual homicide rate in somalia is still far below those of many chaotic nation states. It is roughly as civil as most other countries in terms of violence. Its economic growth is even better than that of Ethiopia which is a neighboring country with a government.
Also, people equate anarchy with chaos, but it is simply wrong. Xeer is a polycentric law, and polycentric law is a form of anarchy. Xeer has worked in somalia. Anarchy gained undue notoriety due to propagandas of competitors(governments). A government is a competitor to anarchy. Would you believe microsoft(competitor) when it says linux sucks without listening to what linux and mac users have to say about linux? https://athousandnations.com/2010/06/23/polycentric-law-a-k-a-anarcho-capitalism-as-no-big-deal/ is a short introduction to prevalence of polycentric law in our modern societies.
My theory is that anarchy exists when there is little or no centralization of power, and centralization pressures tend to lead to monarchy or legislative political bodies such as nation states.
if the nature of licensing is contractual, then all open source licenses are unenforceable in common law jurisdictions. This is due to the fact that gratuitous agreements lack a required element of formation: consideration (in the legal sense of the word consideration).
There is a flaw in your argument: as a user of said code you don't want the license to be unenforceable. Because if it was, you wouldn't have any license to use that code at all, making your use a copyright infringement by default.
It is incorrect to state that open source licenses are gratuitous. The licensor grants the right to use the code, the licensee agrees to give credit (and in the case of GPL, to distribute source code). Each side thus provides consideration.
If a licensee were to claim that they had not provided consideration, they would simply be asserting that they had no right to use the code. To the extent that the license gives them the right to use the code, it must be enforceable.
reqshark, fortunately the licenses are not contractual, but have a basis in copyright instead, so they do not need consideration.
I think license is absent mostly on repositories with throwaway scripts, dotfiles, websites and so on.
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