Software Licenses and Failed States

"To detect what license, if any, a project is licensed under, we used an open source Ruby gem called Licensee to compare the repository's LICENSE file to a short list of known licenses. However, it's important to note that this approach doesn't count a project as licensed if the README indicates a specific license or if individual project files contain a named license in the code comments."

Of my 13 (original, non-forked) projects on github, 11 state a licence; each one would be immediately found by a human looking at the project; not a single one would be found by the above method.

[1] https://github.com/blog/1964-open-source-license-usage-on-gi...

I more useful metric would be to measure repositories that have 10 or more stars or followers, and to see what percentage of such repositories have no software license.

As it is, the whole digression into the failed state metaphor is premature. The author should have done some digging for better supporting stats before spending so much time on a stretched failed state metaphor.

That is not what "Open Source" means.

> but legally, the copyright is still owned by the authors

In Open Source/Free Software, the copyright on the software is still owned by the original authors.

People can look at my code, they can use it privately and do whatever they want. They cannot build a business with it or use it in any way I don't like without my permission. Yes, people with a contempt of copyright law (which tend to align with me politically a bit) profit from this. People who have internalized copyright law and won't even look at my unlicensed code in secret, on their phone on the toilet, because it's 'wrong', are disadvantaged. That's great!

Most importantly, I don't give any rights away. "All rights reserved" is the default. And I don't enter any obligations. Remember, we like to talk about licenses that are attached to code. But how are they implemented? In reality, licenses are in fact like contracts between you and the license taker. I'm extremely hesitant to sign contracts with strangers - I especially don't want to offer a blanket contract to everybody who reads my code and wants to accept it. I can't be 100% sure that such a contract doesn't create any obligations for me that I don't want - the legal system is so complicated that even lawyers have problems finding all side effects of clauses. At the very least, I'll be giving courses of action away if I license my code.

Without a license, putting code online is a bit like writing a poem in a park. People can look over your shoulder, read what you're writing, you can interact with them if you like, they can take your words and pass them on - but they can't publish a book with them, and you have no obligations towards those people.

He may not care about the law, but the user of that unlicensed software will care when they get sued for using it.

"Oh, but I would never sue you for using my software" says the unlicensed GitHub author.

"But I can't trust you. You're not trustworthy."

"Oh, but I am. I won't sue, I promise!"

"Then why don't you put that promise in writing? It's called a License."

I totally buy the idea that at least some users who upload source to GitHub without a license feel that way. I have slightly different priorities (creating software that is used is more important to me than avoiding the copyright antics) but I'm pretty sympathetic to that sentiment.

The problem with expressing that sentiment by not licensing your software is that it doesn't express that sentiment at all, especially on GitHub. GitHub's terms of use require that public repositories contain only open source code, so there's an argument to be made that uploading your code to a public repo on GitHub implies an open source license.

If you really want to make a civilly-disobedient statement rejecting the idea of licenses, I'd do so with something like the Forget Users License[1].

[1] https://www.kerkeslager.com/forget-users-license.txt

EDIT: I'm not a lawyer and would love to make this more lawyer-y. Suggested improvements to the license are welcome.

For example, imagine you have an MVP for a failed startup idea. By throwing it up on Github other people can learn from your project. Potential employers can review your code.

But if someone wants to fork your code and try to launch an identical startup, they really should cut you in.

> So, the other possibility is that authors deliberately reject the legal system per se.

I hope he's sarcastic because it's blindingly obvious to anyone who knows there's a copyright and published any stuff for other people to use. Reality is that if you publish something everybody can take it and use it. Copyright flies in the face of actual reality. So most people just ignore it. Consumers but also producers. Only lawyers still care. Nothing weird about it.

If you had a law that water is dry until explicitly declared wet by appropriate rightholder people would ignore that law in their daily lives if there were no enforcer around.

Why is that contradictory? That's how every piece of sample code in a book works; the book generally has a copyright statement at the beginning and no license on the code. That's how, for instance, Microsoft's sample code explicitly works: there's a license that clearly states you can't use it unless you make nontrivial modifications.

That's also how code under non-simple-permissive licenses works. If I post something under the AGPL, it's legally unavailable for many purposes. If I post it under GPLv2-only (as I would default to for, e.g., a kernel module), it's legally unavailable to even GPLv3-only software.

In my experience it's been pretty easy to ask the author and say "Hi, I'd like to use your code under this license, here's my use case, can you provide it under that license?", and a good chunk of the time they'll say "Sure." For that question, it doesn't really matter whether the software is under any license at all to start with.

Don't compare those of us living under the rule of international law adopted in Berne in 1886 with people in failed states.

What options do I have?

And let's face facts here : he is right.

1) a common person making open source code cannot reasonably assume he will enjoy the protection of the legal system when others violate the licenses (just look at GPL enforcement efforts and their lack of results)

2) the power of the law to enforce these things in the first place is very limited. If you don't notice the abuse yourself (either because you do, or because it's pointed out to you), the law isn't going to do so either (this is in fact an important legal principle in western law : if no-one cares, it's not against the law, not even if there actually is a law against it. Note that in criminal cases the state can "care" in a legal sense, on behalf of someone else (e.g. a murder victim), but this cannot happen in civil cases. This becomes obvious in the case of contracts, for instance: feel free to violate contracts ("commit fraud"), if the other signatory to the contract agrees with your actions. I will advise you to get that agreement in writing though)

3) you can make mistakes which get you into hot water. For instance, if you accidentally relicense, or appear to relicense, code from a large company, that can get you in serious legal trouble.

4) in practice, such massive portions of the law are ridiculous and unenforceable, and these portions have expanded, and expanded, and expanded yet more over time. Effectively, following the law is not a realistic proposition, and nobody should be under the illusion that they're following the law, ESPECIALLY when facing the police, but also in all other cases (remember this when the police asks you questions. The answer is always the same : I refuse to answer except through my lawyer (and even then, take the fifth). Why ? https://www.youtube.com/watch?v=6wXkI4t7nuc )

You should always treat any situation as a negotiation. Even when there is a clear law against what the person you're talking to is about to do.

I remember coming to a law lecture. The professor had 3 bottles of Bols (a famously strong alcoholic drink in western Europe). Why ? Well, the case he had started in his second year of law study against the telecom monopoly had completed, 45 years later. He had won. For 45 years of regular legal efforts, he got 83 euros (enough for 3 bottles of bols and some fast food). It was extremely nice of him, but it really drove the point home for me : the law, by itself, is merely an argument in any negotiation, and not a very strong one.

So we have established:

1) the law will not help you against others, at best it will enable you to help yourself (for a price, not for free)

2) the law may work against you. Taking legal actions, no matter how small, is something you don't understand (not even experienced lawyers or even judges can understand their everyday actions in a legal sense). Adding a license is definitely a legal action you don't understand and is not risk-free.

And I would add that this is plainly visible:

3) a LOT of people openly violate the law in pretty much all aspects of life (as a tenant which recently changed apartments, I was yet again reminded of this last month, getting charged with replacement costs for consumables, which was explicitly mentioned in the contract, and in law, to be the landlord's problem. Mentioning that got me a 50% reduction in what I got charged, and I accepted. Realistically I would have accepted a 10% reduction in what I was charged)

So why would you put licenses on your own code ? Don't. It's a risk without reward. If you want to go on a crusade, then go ahead. Otherwise, just stay away.