I think FSF/OSI did a stellar job of infusing the intent of free/libre back into non-technical societies beyond their reach. Their concepts are clearly laid out and easy to grasp, and we are definitely seeing interesting results now from that infusion.

But I also feel like we’re simply rediscovering why societies have laws, which are incompatible with perfect freedom. For example, is the GPL’s restriction sufficiently beneficial that we can overlook its abrogation of personal freedom? I’m not sure that’s widely agreed-upon even today, but clearly it is considered worth it to its author(s), as any good constitution ought to be.

We’ve discovered this week why France has a decades-old parasitism law, that allows you to recoup damages when someone else tries to build their fortune using your work and reputation. It serves the same intent as the AGPL attempts to - you can’t resell my work as if it’s yours without paying me - but it is written far more precisely, in a way that does not default-prohibit all commercial uses, but merely those uses that try to feed on someone else’s reputation. A licensing argument would say “then isn’t all commercial use parasitic?”, and the answer in nation-law terms is essentially “a technical analysis of the law might allow for that, but a reasonable analysis would not”. This is the crux where licensing and nation-law diverge: in licensing, to date, we have generally acted as if we must close every possible loophole because there are no judges in our system to evaluate ‘reasonable interpretation’.

So, to tie this back to the main point of the post above, if the GPL and AGPL (which appears to be longer than the French parasitism constitutional law!) are trading freedom for benefit, then they are not free, but they’re still trying to be beneficial to society. Have they made the correct tradeoffs in their currency swap of freedom for benefit? Well, I’m not sure. Similar restrictions in nation law would be intolerable to extreme libertarians, who would contest that all nation laws are unacceptable, but the rest of society seems comfortable with a reasonable set of restrictions.

Is the AGPL reasonable?

This is where the software licensing as legal constitutions model falls down, because we simply are not equipped to judge. We have one or two institutions that offer commentary and blessing, but our laws as written are evidence that we have no judge or jury able to provide reasonable evaluations and judgments. So the AGPL restricts people from building small ISPs just as much as it restricts people from building a multinational ISP. That wasn’t reasonable in a pre-software world, where you had to purchase objects to build things with them, but now that digital work can be reproduced and reused effortlessly, creators of source code no longer get paid for their source code (not that they did very often before!), and so the AGPL tries to fill that void.

Is getting paid reasonable?

Sometimes I think that we would have been better off tapping into music lyrics copyright and licensing, rather than trying to invent our own field of licensing from base metal principles. Lyrics writers get paid, though of course as with all things megacorps pay them poorly. Cover songs are allowed, but blatant knock-offs are not. Performances require permission, which may entail payment, and certainly does if not granted.

Music lyrics aren’t free for all commercial reuse, but they are free for reasonable commercial reuse. So if we try to bridge the gap between existing nation laws, and the ideals of the GPL/AGPL, a simple solution presents itself. One that provides the desired benefit of the AGPL without needing to create new restrictions on freedom. One that has a long and storied history of court judgements to provide human reasonable outcomes when the laws could never be precise enough anyways.

Source code is just lyrics to a song played on a computer instrument, and deserves the same protections and freedoms and limited reusability as any other song.

(I am not your lawyer, internet forum posts are not legal advice.)