commit: de2b96b866bb7d4a88048975c035da98f53fed01
parent 34e858d7434d0d43a762c969fdcbdb543561021a
Author: Drew DeVault <sir@cmpwn.com>
Date: Fri, 19 Apr 2024 14:33:12 +0200
Copyleft licenses are not “restrictive”
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+---
+title: 'Copyleft licenses are not “restrictive”'
+date: 2024-04-19
+---
+
+One may observe an axis, or a "spectrum", along which free and open source
+software licenses can be organized, where one end is "permissive" and the other
+end is "copyleft". It is important to acknowledge, however, that though copyleft
+can be found at the opposite end of an axis with respect to permissive, it is
+not synonymous with the linguistic antonym of permissive -- that is, copyleft
+licenses are not "restrictive" by comparison with permissive licenses.
+
+*Aside: Free software is not synonymous with copyleft and open source is not
+synonymous with permissive, though this is a common misconception. Permissive
+licenses are generally free software and copyleft licenses are generally open
+source; the distinction between permissive and copyleft is orthogonal to the
+distinction between free software and open source.*
+
+It is a common misunderstanding to construe copyleft licenses as more
+"restrictive" or "less free" than permissive licenses. This view is predicated
+on a shallow understanding of freedom, a sort of passive freedom that presents
+as the absence of obligations. Copyleft is predicated on a deeper understanding
+of freedom in which freedom is a *positive guarantee of rights*.<sup><a
+href="https://plato.stanford.edu/entries/liberty-positive-negative/">[source]</a></sup>
+
+Let's consider the matter of freedom, obligation, rights, and restrictions in
+depth.
+
+Both forms of licenses include obligations, which are not the same thing as
+restrictions. An example of an obligation can be found in the permissive MIT
+license:
+
+> Permission is hereby granted […] to deal in the Software without restriction
+> […] subject to the following conditions:
+>
+> The above copyright notice and this permission notice shall be included in all
+> copies or substantial portions of the Software.
+
+This obliges the user, when distributing copies of the software, to include the
+copyright notice. However, it does not *restrict* the use of the software under
+any conditions. An example of a restriction comes from the infamous JSON
+license, which adds the following clause to a stock MIT license:
+
+> The Software shall be used for Good, not Evil.
+
+IBM famously petitioned Douglas Crockford for, and received, a license to do
+evil with JSON.[^1] This kind of clause is broadly referred to in the free
+software jargon as "discrimination against field of endeavour", and such
+restrictions contravene both the free software and open source definitions. To
+quote the [Open Source Definition](https://opensource.org/osd), clause 6:
+
+[^1]: Strictly speaking this exception was for JSLint, not JSON. But I digress.
+
+> The license must not restrict anyone from making use of the program in a
+> specific field of endeavor. For example, it may not restrict the program from
+> being used in a business, or from being used for genetic research.
+
+No such restrictions are found in free or open source software licenses, be they
+permissive or copyleft -- all FOSS licenses permit the use of the software for
+any purpose without restriction. You can sell both permissive and copyleft
+software, use it as part of a commercial cloud service,[^agpl] use the software
+as part of a nuclear weapons program,[^nuke] or do whatever else you want with
+it. There are no restrictions on how free software is used, regardless of if it
+is permissive or copyleft.
+
+[^agpl]: This is even true if the software uses the AGPL license.
+
+[^nuke]: Take a moment here to entertain the supposition that nuclear warheads
+ are legally obliged to include a copy of the MIT license, if they
+ incorporate MIT licensed code in their guidance systems, on board, as they
+ are "distributing" that software to the, err, recipients. As it were.
+
+Copyleft does not impose restrictions, but it does impose obligations. The
+obligations exist to guarantee rights to the users of the software -- in other
+words, to ensure freedoms. In this respect copyleft licenses are *more free*
+than permissive licenses.
+
+Freedom is a political concept, and in order to understand this, we must
+consider it in political terms, which is to say as an exercise in power
+dynamics. Freedom without obligation is a contradiction. Freedom *emerges* from
+obligations, specifically obligations imposed on power.
+
+Where does freedom come from?
+
+Consider the United States as an example, a society which sets forth freedom as
+a core political value.[^2] Freedoms in the US are ultimately grounded in the US
+constitution and its bill of rights. These tools create freedoms by guaranteeing
+rights to US citizens through the imposition of *obligations* on the government.
+For instance, you have a right to an attorney when accused of a crime in the
+United States, and as such the government is *obliged* to provide you with one.
+It is from obligations such as these that freedom emerges. Freedom of assembly,
+another example, is guaranteed such that the police are prevented from breaking
+up peaceful protests -- this freedom emerges from a *constraint* (or
+restriction, if you must) on power (the government) as a means of guaranteeing
+the rights and freedom of those with less power by comparison (its citizens).
+
+[^2]: The extent to which it achieves this has, of course, been the subject of
+ intense debate for centuries.
+
+Who holds the power in the context of software?
+
+Consider non-free software by contrast: software is written by corporations and
+sold on to users with substantial restrictions on its use. Corporations hold
+more power than individuals: they have more resources (e.g. money), more
+influence, and, in a sense more fundamental to the software itself, they retain
+in private the tools to understand the software, or to modify its behavior, and
+they dictate the conditions under which it may be used (e.g. only if your
+license key has not expired, or only for certain purposes). This is true of
+anyone who retains the source code in private and uses copyright law to enforce
+their will upon the software -- in this way they possess, and exercise, power
+over the user.
+
+Permissive licenses do not provide any checks on this power; generally they
+preserve [moral rights](https://en.wikipedia.org/wiki/Moral_rights) and little
+else. Permissive licenses provide for relatively few and narrow freedoms, and
+are not particularly "free" as such. Copyleft licenses constrain these powers
+through additional obligations, and from these obligations greater freedoms
+emerge. Specifically, they oblige reciprocity. They are distinguished from
+permissive licenses in this manner, but where permissive licenses *permit*,
+copyleft does not *restrict* per-se -- better terms might be "reciprocal" and
+"non-reciprocal", but perhaps that ship has sailed. "You may use this software
+*if* ..." is a statement made both by permissive and copyleft licenses, with
+different *if*s. Neither form of license says "you cannot use this software *if*
+..."; licenses which do so are non-free.
+
+Permissive licenses and copyleft licenses are both free software, but only the
+latter provides a guarantee of rights, and while both might be free only the
+latter provides *freedom*.
