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    I fully intend to reread this, because it seems interesting, but I have no idea what Mitchell’s thesis is, or if he has a thesis. It mostly makes sense to me at the level of individual paragraphs, but I don’t know how they fit together.

    In particular, the entire first half of the essay had me asking “why isn’t this just the difference between ‘free and open’?” Happy to see he anticipated the question, but I didn’t understand the response.

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      Sorry if that didn’t come across clearly enough. I write these things first and foremost for myself. Occasionally other people find them worthwhile.

      If I were going to try to mush the thesis into a comment box, it would be that the current go-to argument against new, strong copyleft licenses like SSPL, that open source licenses can’t discriminate against closed software development, flaunts the history of free and open source software. The whole crux of that movement was learning to tell the difference between “open” and “closed” and coming down strongly on the side of open.

      The reason the argument plays these days is that a bunch of closed software companies have taken over leadership of open source institutions. Twenty years ago, they’d’ve all counted as “evil” online, and the idea that open source “wins” if there’s open source in proprietary software would’ve been angrily and soundly dismissed.

      I have a mechanism for summarizing my own blog posts, which I never remember to use. I’ll add it now. Thanks.

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        I think the hardest part is that I react to that and see “free, not open”. Looking at the current state of open source, I think a FSF person has every right to say “I told you so!”

        But clearly you think there’s more going on here. I see below that you think that was a personality driven fight, but is that the only way it misses what you think is going on?

        Edit: P.S. Sorry for “or if he has a thesis”. I think that’s sloppy writing on my part. What I meant is that I didn’t know how much you wanted to argue for a very specific point, vs. framing the situation and making observations as a sort of first draft of how to think about it.

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          I mention in my post, or tried to mention, that I think the archetype of the free-versus-open schism invites us to write all this off as “same old story”, instead of seeing all that’s completely new and different.

          Superficially, the AWS-Elastic fight today seems a lot like the fight that kept AGPLv3 from becoming GPLv3. But we’re talking about a fight between companies, not, say, FSF versus Google. Even when foundations are weighing in, as OSI did against Elastic, we’re talking about foundations that have been propped up, staffed, and influenced by commercial firms and their people for decades. Among those companies, the ones with the most influence are first and foremost makers of proprietary products and services, plus huge integrator-consultancies, not movement stalwarts, as in the early 2000s.

          Personalities were a big part of the FSF-OSI schism. But there were real policy issues there, too. I don’t mean to write it off as a big Tim-ESR-RMS-Linus pissing match, though it was that, too.

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        I think the thesis is that the phrase “open source” has gone from being about freedom of end-users to read/copy/modify software to freedom of corporations to include software in their proprietary stacks which end-users are not permitted to read/copy/modify. And that the complaints that Elastic’s new license is not “open” are just a new move in this long battle over whose freedom open source is about.

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          I know what you mean by “I don’t know how they fit together”. He does not have a structure sort of writing style. You kind of have to go along for the ride of all his thoughts, but I enjoy that sometimes more than the “5 things you need to know about open source licensing” sort of blogging.

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          I’ve really enjoyed reading this blog over the last few weeks. He has a great perspective and explains the legal side well. Seems like there is an “Open Source Industrial Complex” where lots of money is made selling products and having conferences about “open source”.

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            You’ll hear people who work in the field joke about a “compliance-industrial complex”. I think that started back in the early 2000s, after big companies started permitting use of open source in masse. Salespeople for nascent compliance solutions firms would fly around giving C-level officers heartaches about having to GPL all their software. My personal experience of those products, both for ongoing use and for one-off due diligence, is that they’re way too expensive, painful to integrate, just don’t work that well, and only make cost-benefit if you ingest a lot of FUD. Folks who disagree with me strongly on other issues, like new copyleft licenses, agree with me here.

            That said, I don’t mean to portray what’s going on in the open source branding war as any kind of conspiracy. There are lots of private conversations, private mailing lists, and marketing team meetings that don’t happen in the open. But the major symptoms of the changing of the corporate guard are all right out there to be seen online. That’s why I walked through the list of OSI sponsors, and linked to the posts from AWS and Elastic. It’s an open firefight, not any kind of cloak-and-dagger war.

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              Agreed. I’m getting increasingly tired by some communities’ (especially Rust’s) aggressive push of corporate-worship-licenses like BSD, MIT (and against even weak copy-left licenses like MPL).

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                I’m saying this with all the respect in the world, but this comment is so far detached from my perception of license popularity that I wanna know from which niche of the tech industry this broad hatred of Rust comes from. To me it seems like one would have to hack exclusively on C/C++/Vala projects hosted on GNU Savannah, Sourcehut or a self-hosted GitLab instance to reach the conclusion that Rust is at the forefront of an anti-copyleft campaign. That to me would make the most sense because then Rust overlaps with the space you’re occupying in the community much more than, say, JavaScript or Python, where (in my perception) the absolute vast majority of OSS packages do not have a copyleft license already.

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                  Try shipping any remotely popular library on crates.io and people heckle you no end until they get to use your work under the license they prefer.

                  Lessons learned: I’ll never ship/relicense stuff under BSD/MIT/Apache ever again.

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                    this broad hatred of Rust comes from

                    Counter culture to the Rust Evangelism Strike Force: Rust evangelists were terribly obnoxious for a while, seems like things calmed down a bit, but the smell is still there.

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                      I think it’s beneath this site to make reactionary nonsense claims on purpose.

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                        How is criticizing a (subset) of a group for their method of communication “reactionary”?

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                          I’m saying soc’s claim about Rust pushing for liberal licensing is nonsense and probably reactionary to the Rust Evangelism Strike Force if @pgeorgi’s explanation is true. My point is that “counter culture” is not an excuse to make bad arguments or wrong claims.

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                            OK, that makes a bit more sense.

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                          reactionary nonsense claims

                          like talking about some “broad hatred of Rust” when projects left and right are adopting it? But the R.E.S.F. is really the first thing that comes to my mind when thinking of rust, and the type of advocacy that led to this nickname sparked some notable reactions…

                          (Not that I mind rust, I prefer to ignore it because it’s just not my cup of tea)

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                      I won’t belabor the point, but I’d suggest considering that some of those project/license decisions (e.g. OpenBSD and ISC) may be about maximizing the freedom (and minimizing the burden) shared directly to other individual developers at a human-to-human level. You may disagree with the ultimate outcome of those decisions in the real world, but it would be a wild misreading of the people behind my example as “corporate worshipping”.

                      As I have said before: “It’s important to remember that GNU is Not Unix, but OpenBSD userland is much more so. There isn’t much reason to protect future forks if you expect that future software should start from first principles instead of extending software until it becomes a monolith that must be protected from its own developers.”

                      Not all software need be released under the same license. Choosing the right license for the right project need not require inconsistency in your beliefs about software freedoms.

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                        The specific choice of MIT/Apache dual-licensing is so unprincipled and weird that it could only be the result of bending over backwards to accommodate a committee’s list of licensing requirements (it needs to compatible with the GPL versions 2 and 3, it needs a patent waver, it needs to fit existing corporate-approved license lists, etc). This is the result of Rust being a success at all costs language in exactly the way that Haskell isn’t. Things like corporate adoption and Windows support are some of those costs.

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                          I can’t speak directly to that example, as I don’t write Rust code and am not part of the Rust community, but it would not surprise me if there were different and conflicting agendas driving licensing decisions made by any committee.

                          I do write code in both Python and Go (languages sharing similar BSD-style licensing permissiveness), and my difficult relationship to the organization behind Go (who is also steward of its future) is not related in any way to how that language has been licensed to me. Those are a separate set of concerns and challenges outside the nature of the language’s license.

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                    Although the author only sketches it, there is a left-hand path here; we can return to Free Software and force corporate consumers of the commons to comply with licenses which disgust them. As I have documented, some licenses are FSF-approved but not OSI-approved, and these licenses often are also not useful for the enumerated corporations.

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                      Thank you for the link to your answer on stackexchange. That was a very enlightening read!

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                        we can return to Free Software and force corporate consumers of the commons to comply with licenses which disgust them

                        You literally can’t. The power dynamics don’t now, and won’t ever, allow it.

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                          You didn’t read my second link; I provide evidence for my claim, including listing some companies which have made public statements or commitments to avoiding certain licenses even when those licenses cover essential software.

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                            …yes, which refutes your claim that you “can force corporate consumers . . . to comply with licenses which disgust them.” They’re opting out, not opting in; that’s not a win condition.

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                              It is very much a winning condition for the Free Software community. We don’t need for corporations to use our code, after all; it is not our problem if they must invent everything for themselves. We would hope, indeed, that if the community is large and robust enough, then corporations would be forced to be polite community members without special privileges, or else be completely outpaced by the combined momentum of folks using code which they’re not allowed to touch. Or, as I put it in a previous thread:

                              At scale, if the public commons is larger than any one corporation’s pool of coders, then this could prevent corporations from entering into public spaces which are broadly populated by people.

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                                [Someone not using our software] is very much a winning condition for the Free Software community.

                                Huh. That’s an… interesting, and rather tautological, way to define your terms. But thanks for the clarification.

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                          WTFPL and Unlicense are disliked by entities that come with a legal department because the licenses don’t tick the right boxes for being a dependable tools (e.g. they lack a warranty disclaimer). I consider these anti-endorsements free legal advice because if the lawyers of a megacorp can’t make those licenses work for them (and it’s not just due to their business model or way of operating, like with Affero clauses) it’s likely that neither can I.

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                            I don’t think it’s true that you have the same legal needs and worries as large corporations. And this distinction is precisely what enables us to imagine that we have not completely run out of possibilities for using licensing alone to make progress with Free Software in society.

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                              I have different legal needs, so Affero clauses are fine for me personally. A license that is so blatantly US-centric as to potentially not be enforcable where I live is a legal worry for me just as it is for Google (does not live in Germany, but operates here). So, no Unlicense for me.

                              Disclosure: I work at Google, and my assessment of some of these decisions could be colored by off-the-cuff remarks made by open source team staff in random internal forums that may not be reflected in such detail in the public Google documentation.

                              However these arguments are also made by other parties, including the FSF, and they make sense to me: For example the argument that putting things in the public domain is not a thing in many countries (such as Germany), so there needs to be a clear alternative (Unlicense isn’t clear to me in that regard) and where the PD mechanism works there’s a risk that some default warranty pops up because you might not be able to disclaim copyright and at the same time disclaim warranty. That seems a bit contrived, but I’m not enough of a lawyer (as in, not at all) to rule that out completely, and it has been brought up.

                              So choosing Unlicense just because it’s off-limits for Google seems like a poor choice: Go AGPL or maybe EUPL, which have a similar anti-corporate effect while being written with some legal care (although EUPL has a bunch of uncertainties that make me reconsider every time I re-read it).

                              They also have the advantage of being fundamentally unfriendly towards “corporations that extract value from other people’s work without giving back” (which seems to be the main thrust of this entire exercise), while the rules that prohibit Unlicense, CC0 and other quasi-public domain arrangements at this time are entirely incidental and might be dropped if the legal risk assessment regarding public domain work in those corporations ever changes (for example if “PD with warranty disclaimer” gets support throughout the legal system in the US).

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                              The Unlicense has a warranty disclaimer.

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                                Well, the disclaimer thing was an example :-)

                                As for the Unlicense, it’s not quite clear to me what is supposed to happen under this license in a jurisdiction with copyright law that doesn’t permit dedicating works into the public domain. I guess the barebone license in the second paragraph is supposed to take over, but who knows?

                                In this case, I can also lean on the free legal advice by the FSF who proposes using the CC0 instead for ticking all the right boxes (while still considered not acceptable by Google’s lawyers, apparently).

                                0BSD seems to be the most accepted “I really don’t care what happens” license variant of all and it carefully avoids any explicit public domain dedication, making it work the same inside and outside the US.

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                                  I was just pointing out what appeared to be an inaccuracy in your comment.

                                  The questions surrounding the Unlicense are why I dual license my projects under the MIT and the Unlicense.

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                            Not one mention of ESR or RMS, which is a bit ahistorical. It’s all ancient history, one supposes, but there was a deliberate push to move towards the current anodyne, toothless culture around Open Source. People needed to get paid, and that was the compromise we chose.

                            One bit is sadly humorous to me:

                            It was just as much a time of brash, arrogant, idealistic hard-cases prying open the eyes of fellow developers and sending them out for a fight with the industry.

                            We had one such amazingly brash hard-case. The platinum bar of libre software, best kept under a glass dome, as a continual reference point for where we were actually at. The mob banded together to throw him out and mock him. Everybody clapped.

                            What’s the point in standing up for a community or an ideal if we all know that fate could await us? Libre software already pays poorly, so how can we compete with the big and small corporations enclosing the commons? Why bother?

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                              Not one mention of ESR or RMS

                              Not by name, which I expect is intentional, but several references to such persons without names such as:

                              Pick a vague, high-sounding snippet from the “Open Source Definition”, an edited copy of an edited copy of a generalist statement of principles drafted in private mostly by one guy.

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                                Yeah, that’s what I had in mind. I didn’t want to personalize the issues. The exception was Tim O’Reilly, who I mentioned by name. But he named his company after himself, so I didn’t really have an option without making a potentially obscure reference, like “Animal Books, Inc.”.

                                It’s important not to understate how important peculiar personalities were to all of this. But I think their importance gets overplayed more often than underplayed. And I thought overplaying it here would weaken what I have to say.

                                One of the points I hope I made was that what we’re seeing now isn’t just a rehash of the old “free versus open” schism, which was very personality driven. The fissure around copyleft versus permissive is opening up again, but the context and content is very different.

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                                  Ah, fair point!

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                                  RMS was definitely the figurehead of the “free” movement. But I think that unique symbolic status was more a reflection of hackers, and scene media, wanting one “face” per camp. I’ve known plenty of folks who took his views to heart, acted, and spoke on them. Some even came to chide him for his “tactical compromises”.

                                  Some of these folks are still around, and still very active. Everybody’s social experience is different. Mine has been that the movement burns a lot hotter in Europe, in India, and generally outside the USA.

                                  People needed to get paid, and that was the compromise we chose.

                                  Thanks for that. I don’t think I’ve seen that view before.

                                  I’ve usually seen it framed as giving up the goal of freedom for the side effects of corporate efficiency, shared resources, leaner startups, and so on. But I suppose it can also be seen as preserving freedom or openness within the trade, but not outside it, without it necessarily following the compromise is just a self-serving conspiracy against the laity. Some is better than none.

                                  Personally, that strikes me as balancing out heavily on the side of the money. But that’s hardly provable, or falsifiable. Just an impression.

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                                    What’s the point in standing up for a community or an ideal if we all know that fate could await us?

                                    I don’t want to re-litigate RMS losing access to an office and a private organisation deciding they did not want him as their leader. But the philosophical split between East Coast/MIT inflected GNU and West Coast/Berkeley BSD was a fact long before everyone was made aware of Stallman’s culinary habits.

                                    And it’s still a huge factor. I like to think that people who like BSD see themselves are future entrepreneurs, eager to lock their secret sauce away when they make it big, while GNU lean more towards academia’s ideal of information open and accessible to all.

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                                      It’s annoying that BSD is technically the “freer” license (e.g., lets developers do more with their code) while accelerating the tragedy of the commons. The academics, it would appear, were correct.

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                                        What does BSD allow that MIT doesn’t? Or do I misunderstand which licenses you’re comparing?

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                                          I would assume that the comparison is between the GNU-culture licenses (eg GPL) and the BSD ones.

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                                            Correct, I honestly forgot the dual meaning. I could have used “Harvard” but MIT was where RMS thrived.

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                                            I used “MIT” in the sense of where RMS pursued doctorate studies (he earned a bachelor degree at Harvard). I don’t know if it’s stated explicitly, but I do believe that he was very influenced by the academic view of software.

                                            MIT isn’t a monolith and as a technical seat of learning it has strong ties to business.

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                                      This seems like a mix between software politics and regular politics, predicated on some assumptions that are very much not commonly held. Is it really on-topic?

                                      Moreover, I was under the impression that it was “free software” which discriminated against proprietary software, and “open source” which explicitly did not (embodied by the dual worldviews of Richard Stallman and Linus Torvalds, respectively).

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                                        I was under the impression that it was “free software” which discriminated against proprietary software, and “open source” which explicitly did not

                                        That’s much, much cleaner than my experience actually bears out. For example, both cofounders of the Open Source Initiative maintain to this day that “open source” was just a new name for “free software”. They came to disagree with each other about what OSI actually did, in the early days, honored that identity.

                                        More recently, in “defending” itself against new, strong copyleft licenses, the OSI board actually passed a change to its license-approval process making “software freedom” an explicit criterion.

                                        Whether this is good politics, appropriation, or something like reality is a source of endless opinion. No clean theory survives first contact with reality. Or a competing theory.

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                                        This is what early free and open people celebrated as “meritocracy”, before it became clear that the particular kind of lazy, blinkered discrimination actually practiced online, as distinct from the mythical fair holistic contest of achievement, potential, and brilliance hackers found so flattering, had terrible social consequences.

                                        This was in fact the entire point of the word “meritocracy” from the beginning. It was coined as satire.

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                                          This was in fact the entire point of the word “meritocracy” from the beginning. It was coined as satire.

                                          And yet, the meaning and connotation of a term can change: See “blacklist”, a term already used in the 17th century that only recently became associated with racial tensions, so folks request to retire it now.

                                          While meritocracy is terribly hard to implement and easy to abuse as a gatekeeping device, I wouldn’t be too hung up on its “original” meaning to reject the notion altogether.

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                                            The point of examining meritocracy is to realize that any choice of partition or gradient, regardless of its particular operational benefits, is going to lead to an unjust and harmful society which oppresses the bulk of its population. How far would you change the meaning, and where would you try to go with it? By any definition of “better” and “best”, meritocracy writes its own critique.

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                                              That’s an actual argument. “It was coined as satire”, less so in my opinion (but commonly used as if it was).

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                                            Yeah, it’s one of those tropes that’s better known in truncated form, which happens to give exactly the wrong impression. Like “rotten apple”, “information wants to be free”, and “Utopia”.

                                            I’ve basically just given up. Unless the misapprehension is really the point I want to make.

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                                            Great read! It made me think about that list of licenses not authorised by google:

                                            https://opensource.google/docs/thirdparty/licenses/#banned

                                            One part of the article that standed out for me was:

                                            “It’s not open source if it can’t go on GitHub, where anyone can fork it, even privately.”

                                            Do you know what licenses are incompatible with this? If so, why does GitHub allow repos written in them? Is there any clause in their License Agreement that “destroys”/“invalidates” those specific licenses?

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                                              That is a long list of really good licenses that are banned: “AGPL (Affero GPL) and SSPL not allowed” “European Union Public Licence (EUPL) not allowed” “Non-Commercial” licenses not allowed”

                                              Makes me think I should be using that list to find good licenses to use!

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                                              This is, to put it as politely as I can, incoherent. I have no idea what point the author is trying to make. I know it has something to do with the various differences in Open Source licenses, and people’s attitude towards them, but I am really struggling to figure out the point of this. I get that the author is very upset about something, but I have no idea what, or why.

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                                                The point seems to be:

                                                • SAAS companies like AWS work fine with common open source licenses (sometimes with the exception of Affero-style licenses)
                                                • Open Source licenses might attach requirements to certain uses of code (e.g. offering modified source code with binaries in case of the GPL, or offering modified source code with service access in case of the AGPL)
                                                • There’s a crop of new software licenses that try to make SAAS-reuse of programs less attractive, to protect business models
                                                • Those licenses are generally not well received
                                                • That poor reception must obviously be a conspiracy by the SAAS folks that managed to subdue the open source community. They want to ensure that they can profit from other people’s work for free. (this reading may be a bit less charitable than possible)