Software licenses as conversation
<p>An article published yesterday, <a href="http://www.networkworld.com/community/node/61402"><cite>I could license you to use this software, but then Iâ€™d have to kill you</cite></a> calls out some odd outliers in the open-source licensing space &#8211; odder, actually, than any I ever reviewed when I was the founding president of the Open Source Initiative.  I wonder, though, if the author actually gets all the levels of the joke.</p>
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<p>The author notes that the top 10 licenses cover 93% of all projects and the top 20 almost 97%; the oddities lie in the remaining 3%.  If one were to graph the frequencies, I&#8217;m guessing the distribution would roughly obey the generalized <a href="http://en.wikipedia.org/wiki/Zipf%27s_law">Zipf&#8217;s Law</a>.  He&#8217;s particularly amused by Poul-Henning Kamp&#8217;s Beerware License, the &#8220;Do What The Fuck You Want To Public License &#8220;, and the &#8220;Death and Repudiation License&#8221;; read his article for the terms of these.</p>
<p>The author writes as though he finds the motivation for these licenses difficult to understand.  I don&#8217;t, though; they make perfect sense if you understand open source licenses not as legal documents but as signaling devices, or as rhetorical rendezvous points for particular social contracts, or even as tribal totems.  </p>
<p>This is probably the sanest way to view them, anyway. Years of reviewing open-source licenses and learning about the applicable law has left me with the evaluation that (legally speaking) they&#8217;re mostly air and voodoo, reflecting a touching but unjustified faith that judges and courts will execute them as though they were programs in legalese. In retrospect, I think the enormous efforts put in the half-decade around 2000 into producing licenses &#8220;better drafted&#8221; than the classics (GPL/MIT/BSD) was pretty much entirely a waste of time &#8211; and I say that as a key player in those efforts. The brutal truth is that if a court understands and agrees with a simple license&#8217;s intention, the court will find doctrinal reasons to enforce it &#8211; and if it doesn&#8217;t, not all the complex language and careful drafting in the world will prevent the court from doing what it damn well pleases.</p>
<p>Open source licenses make more sense as tribal totems, or as statements of the licensor&#8217;s position in an ongoing conversation about how the open-source community defines itself.  One of the features of conversation is that people comment on, make jokes about, and emit satires of other peoples&#8217; speech.</p>
<p>Thus, for example: I haven&#8217;t checked with Henning-Kemp, but when I read his Beerware License I see a man saying &#8220;Whoa! Step back, we are all taking ourselves waaay too seriously here.&#8221; OK, interesting behavior tends to be overdetermined and I have no reason to doubt that the guy likes beer and enjoys the collection of autographed exotic beer bottles a commenter reports he has accumulated.  Still, the effect is to poke gentle fun at the cult-like earnestness around a lot of licensing debates. I don&#8217;t think that&#8217;s an accident. And I approve.</p>
<p>It&#8217;s even clearer that the <cite>Do What the Fuck You Want To Public License</cite> is a satire.  The author is one of those who thinks the Free Software Foundation has traduced the word &#8220;free&#8221; by hedging the GNU General Public License about with restrictions and boobytraps in the name of &#8220;freedom&#8221; &#8211; and he&#8217;s got an issue or two with BSD as well. He is poking fun at both camps, not gently at all.  His <a href="http://sam.zoy.org/wtfpl/">page about the  WTFPL</a> is funny-because-it&#8217;s-true hilarious, and I admit that I feel a sneaking temptation to start using it myself.</p>
<p>The <cite>Death and Repudiation License</cite> isn&#8217;t a satire, exactly.  It appears on some software dual-licensed with BSD, so nobody ever actually has to apply it.  It appears to be a screw-you gesture aimed at people who wanted the software dual-licensed, probably with GPL.  The software author&#8217;s reply was &#8220;Yeah, I got yer dual license right here.&#8221; </p>
<p>The feature all these licenses share is that, though they&#8217;re drafted as legal documents and may have the force of same, they&#8217;re not actually about the legalities at all. It might be interesting to audit the other licenses with frequencies down in the statistical noise and see what percentage are like this; I&#8217;d bet there are lots of others.</p>
