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    The projects without license can in theory be considered open source (the source is published after all)

    Not to put too fine of a point of it, but you do know that “open source” is a term defined by OSI that means a lot more than visible source, right? What makes these repos effectively open source is not merely that the source is visible, but that (probably) nobody is going to go after you if you decide to modify them, use them, or redistribute them.

    You’re obviously aware of the legal ramifications, but as a free software zealot, I want people to remember that open source refers to same class of software. I do this because I hope that people will treat open source the same way as they treat free software, even if they do it for a different motivation (e.g. commercial advantage instead of freedom).

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      The projects without license can in theory be considered open source…

      No need to theorize, Github has written policies for unlicensed repositories:

      You’re under no obligation to choose a license. It’s your right not to include one with your code or project, but please be aware of the implications. Generally speaking, the absence of a license means that the default copyright laws apply. … Even if this is what you intend, if you publish your source code in a public repository on GitHub, you have accepted the Terms of Service which do allow other GitHub users some rights. Specifically, you allow others to view and fork your repository within the GitHub site.

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      “You can use my stuff if you are willing to ignore the law.”

      Or “If you want to use my stuff, talk to me about it first”.

      One of the most annoying things about open source for me is having no idea who is using my stuff. I’ve considered defaulting to unlicensed stuff simply as a way to gauge interest - if nobody complains about the lack of license then probably nobody cares.

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        That seems like a noisy metric - you’ll get false-negatives from the “get stuff done” crowd who don’t care about your licence and the people who say “no licence file? that does not bode well, I’ll move on to the next Google result”. You’ll also get false-positives from people who stumble across your repo and see an opportunity to inform you of the minutia of the Berne Convention.

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          That seems like a noisy metric

          It is, but so is everything else.

          and the people who say “no licence file? that does not bode well, I’ll move on to the next Google result”.

          I don’t actually consider this a huge problem. I already have more open source maintenance work than I can manage on my own, so if I can scare people off using my project that’s less work for me :-D

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        One possibility is that people are just lazy.

        I think that’s the answer in most cases.

        Where RMS says: “You can use my stuff if you buy into the idea of free software,”

        Rather, “You can use my stuff if you follow the rules set by people who buy into the idea of free software”.

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          I wonder how many of these repositories aren’t software (e.g. dotfiles or other config, websites). You could of course put a license on these (though tracking provenance for snippets in your vimrc might be a pain), but I can understand why most wouldn’t bother.

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            Yes, agreed. My point was that not putting a license on a project, however small and trivial, is contributing to making no-licensing (and thus ignoring the legal aspects) a cultural norm. Small projects today, big projects tomorrow…

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            You asked for cases in which free licenses have helped: there is OpenWrt that was able to exist thanks to GPL enforcement and currently we have the on-going GPL lawsuit against VMWare. It remains to be seen how it will play out.

            More mundanely, there is the giant pile of open and free software that nearly every company now relies upon, big and small. These companies will not touch code unless it comes with a cleanly written legal promise that it’s ok to touch it. These benefits also extend to ordinary people, not just companies. So, we are already all benefiting from open and free licenses. We know the software can’t be taken away from us, because a license says it won’t be. It’s just a benefit that is so taken for granted that we even forget it’s there.

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              Note that I’ve asked how the law as a whole have helped, not how software licenses have helped.

              So, the law takes software which is freely shareable in its nature (it’s not a scarce resource; you can’t even know if someone made yet one more copy) and bans free copying. Then RMS comes a devises a hack to use letter of law to fight the spirit of law. As a consequence, we get a little bit of freedom.

              It would require a pretty severe version of Stockholm syndrome to interpret that as law “helping” the FOSS community.

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                Licenses are promises, deterrents. We don’t need to go to judges and lawyers every time we need to reap the benefits of a license, just like we don’t have to count all of the people who tried to jump over a fence but were caught being unable to do so. The law has helped in giving teeth, whether copyleft or not. The licenses don’t have to bite for their teeth to be effective.

                If there was no copyright or copyleft law, all it takes a few bad actors or bullies to exploit the goodwill of the majority. These bullies could DRM or obfuscate their software in order to abuse the rest. Software is not always naturally modifiable or redistributable. This abuse already happens, but we can fight back in the cases where licenses like GPLv3 prevent this. Anarchies always fail when the group grows too large to avoid the presence of harmful agents. Github’s unlicensed software is not an anarchy, and few would base a substantial endeavour on unlicensed software.

                I am more optimistic about the law. Understand the law, where it comes from, and what benefits it may bring. Proper laws can help us all.

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                  If there was no copyright or copyleft law, all it takes a few bad actors or bullies to exploit the goodwill of the majority.

                  Would you mind expanding on this point? I’m not sure I agree as written.

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                    If there was no copyright or copyleft law, all it takes a few bad actors or bullies to exploit the goodwill of the majority. These bullies could DRM or obfuscate their software in order to abuse the rest.

                    That doesn’t make any sense. If there were no copyright/IP law, certainly people could obfuscate or DRM their software, but they’re entitled to do so! Without copyright/IP law, folks would also be entitled to deobfuscate or crack the DRM and distribute the fruits of their labor without consequence. Certainly, folks are also entitled to not use software that is obfuscated or DRM’d.

                    This abuse already happens, but we can fight back in the cases where licenses like GPLv3 prevent this.

                    To clarify, by “fight back,” you mean, “use the threat of physical force to compel others to not obfuscate or DRM their software”? I’m sure actual force is rarely necessary, but the threat of it is effectively behind the enforcement of all laws.

                    Proper laws can help us all.

                    This is an utterly meaningless statement. Which laws are proper, exactly?

                    I am all for calling out people who do bad things like obfuscate or DRM their software and using one of many available tactics to try and change their behavior, but as soon as you start trying to use coercion to enforce your particular sensibilities on how software should be distributed, that crosses the line for me personally.

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                I would guess laziness or forgetfulness explain 99.99% of those repos.

                I have quite a few repos without licenses, and have made it a point to add one whenever I’m working on a project that doesn’t already have one. I really should set aside a couple hours and just knock out the rest of them, but it’s tedious and boring, so I avoid it.

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                  No, people are just too lazy :P But the author made an interesting point.

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                    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.

                    This interpretation of the data is highly suspect. My belief is that the percentage of licensed projects is dropping because the percentage of extant projects that are important/respectable is dropping. The absolute number of important projects is obviously on the rise, but the mundane left-pad chaff is drowning them out when you look at the numbers alone.