Software Freedom Ensures the True Software Commons
by on August 22, 2018
Update (2023-11-14): Not long after publication of the post below about the so-called “Commons Clause”, Neo4j utilized that Clause to add a “further restriction” to the Affero General Public License, Version 3 (“AGPLv3”). When John Mark Suhy tried to remove it, as permitted and encouraged by AGPLv3 itself, Neo4j sued John Mark and his small company (PureThink). That case sadly resulted in multiple ill-informed judgments forbidding such removal. As SFC's Policy Fellow, I filed an expert report on the case — explaining my first-hand knowledge about the drafting of the relevant “further restriction” removal clause, but, alas, the Court has not changed its view. The case is, however, ongoing, so please watch SFC's website for updates.
The SFC remains dismayed that the proprietary “AGPLv3-only WITH Commons-Clause” has been allowed to stand as valid since 2018. If the SFC were the copyright holder of the text of the AGPLv3, or the trademark holder of the license's name, we would have intervened in this case to clarify these matters for the Court. Since the SFC did not create the AGPLv3 (my personal involvement with AGPLv3 drafting was not as an SFC employee), filing the expert report was the only action that SFC could take to assist in this matter. However, going forward, we do encourage anyone facing a “further restrictions” issue with copyleft license to contact us for support — so that those who care about the future of copyleft can coordinate a response together.
(Original post follows:)
Proprietary software has always been about a power relationship. Copyright and other legal systems give authors the power to decide what license to choose, and usually, they choose a license that favors themselves and takes rights and permissions away from others.
The so-called “Commons Clause” purposely confuses and conflates many issues. The initiative is backed by FOSSA, a company that sells materiel in the proprietary compliance industrial complex. This clause recently made news again since other parties have now adopted this same license.
This proprietary software license, which is not Open Source and does not
respect the four freedoms of Free Software, seeks to hide a power imbalance
ironically behind the guise “Open Source sustainability”. Their
argument, once you look past their assertion that the only way to save Open
Source is to not do open source
, is quite plain: If we can't make money as
quickly and as easily as we'd like with this software, then we have to make
sure no one else can as well
.
These observations are not new. Software freedom advocates have always admitted that if your primary goal is to make money, proprietary software is a better option. It's not that you can't earn a living writing only Free Software; it's that proprietary software makes it easier because you have monopolistic power, granted to you by a legal system ill-equipped to deal with modern technology. In my view, it's a power which you don't deserve — that allows you to restrict others.
Of course, we all want software freedom to exist and survive sustainably. But the environmental movement has already taught us that unbridled commerce and conspicuous consumption is not sustainable. Yet, companies still adopt strategies like this Commons Clause to prioritize rapid growth and revenue that the proprietary software industry expects, claiming these strategies bolster the Commons (even if it is a “partial commons in name only”). The two goals are often just incompatible.
Here at Conservancy, we ask our projects to be realistic about revenue. We don't typically see Conservancy projects grow at rapid rates. They grow at slow and steady rates, but they grow better, stronger, and more diverse because they take the time to invite everyone to get involved. The software takes longer to mature, but when it does it's more robust and survives longer.
I'll take a bet with anyone who'd like. Let's pick five projects under the Affero GPL and five projects under the Commons Clause, and then let's see which ones survive longer as vibrant communities with active codebases and diverse contributors.
Finally, it's not surprising that the authors chose the name “Commons”. Sadly, “commons” has for many years been a compromised term, often used by those who want to promote licenses or organizational models that do not guarantee all four freedoms inherent in software freedom. Proprietary software is the ultimate tragedy of the software commons, and while it's clever rhetoric for our opposition to claim that they can make FOSS sustainable by proprietarizing it, such an argument is also sophistry.
Please email any comments on this entry to info@sfconservancy.org.
