Copyleft.next and the Future of GNU General Public Licenses

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“I am puzzled as to why this might be thought a newsworthy story at all,” says Richard Fontana, talking about his new licensing project, Copyleft.next (formerly, GPL.next). “Copyleft.next is just a toy research project, motivated initially by a mere desire on my part to learn more about using Git.”

Fontana is perhaps being mildly disingenuous. Although the importance of Copyleft.next has been greatly exaggerated, he is not ruling out the possibility that it might play a role in the development of future versions of copyleft licenses such as the GPL family of licenses.

If nothing else, the project seems to reflect the critique of GPL licenses that Fontana has been quietly making for some months now, which deserves wider recognition and discussion.

Fontana is responding directly to the recent coverage of the project. Intended as an effort “to develop an improved strong copyleft free software license” — that is, GPL-like licenses — according to its About page, the project was quickly noticed last week as it was discussed on the Twitter-alternative Identi.ca.

Although the end of the week is usually a slow time for news, an article by Simon Phipps quickly appeared, and the story was picked up over the weekend by other sites covering free and open source software (FOSS).

Despite Fontana’s claim that his main interest lies in learning more about the Git version control system, in retrospect the interest was inevitable. Although Fontana emphasized repeatedly that the project was entirely personal, and that he was not representing Red Hat or anyone else, anything he says about licensing is likely to be picked up by the FOSS media.

After all, together with Eben Moglen, Fontana was ghost-writer for the third version of the GPL (GPLv3), and he is currently Open Source Licensing and Patent Counsel at Red Hat. Consequently, when Fontana talks about licensing, the FOSS community listens.

Not only that, but circumstances combined to make the project suggestive. To start with, it was announced near the fifth anniversary of GPLv3, at a time when many observers suggest that GPL licenses are becoming less popular.

Add Fontana’s statement that Copyleft.next was not supported by the Free Software Foundation and the fact that the project was initially reported — erroneously — as a fork, and the room for speculation was almost infinite.

Was Fontana trying to prod the Free Software Foundation into action? Was he repudiating his own work on the GPLv3? Taking a bold new direction to preserve the GPL family of licenses?

Given Fontana’s initial reluctance to discuss what he was doing — a reluctance overcome only by the continual requests for more information — in the absence of hard facts, you could make the announcement of Copyleft.next mean almost anything.

Not that Fontana didn’t offer hints that the attention was overblown. In particular, he wrote on the Note to Journalists page that “All communications with journalists shall be handled by the Copyleft.next Marketing Committee, which does not exist yet and probably won’t exist for at least another year or three. For the avoidance of doubt, Simon Phipps is not considered a journalist.”

However, many observers either missed such comments or failed to see any humor in them. For the most part, everyone took the project seriously as an effort by one of FOSS’s major legal experts to address the possible future needs of FOSS licensing. Under these circumstances, Fontana’s disclaimer becomes understandable.

The Critique Behind the Project

So why mention the episode at all? It is hardly the first time that misinformation has spread through the FOSS community. Nor, at this point, is CopyLeft.next more than potentially important.

However, the same cannot be said of the critique that helps to drive the project. This critique deserves more attention, and, if nothing else, the excitement over CopyLeft.next can help to make it better known.

Most lawyers are trained to think in terms of precedent. However, in Fontana’s case, this training amounts to an unusually strong interest in research and history for their own sake. Consequently, when attempting to answer the question of whether GPL licenses are in decline and losing ground to the so-called permissive or BSD-style free licenses that allow restrictive relicensing, Fontana’s first step is to consider the online records.

The conclusions from Fontana’s research — at least as of several months ago, since they are probably still in development — are summarized in an hour-long talk he gave at the Linux Collaboration Summit in April 2012, entitled, “The Decline of the GPL and What to Do About It.” This talk is available as an episode in Bradley Kuhn and Karen Sandler’s “Free As In Freedom” podcast.

About half the talk is devoted to answering the question of when the GPL was first assumed to be dominant. Asserting that “the rise of the GPL is inseparable from the rise of the Linux kernel” — one of the first major projects to adopt it — Fontana suggests that the assumption was firmly in place by 2002, and began to be questioned in the last seven years. How true the assumption was at any given period is a question he mostly ignores.

Examining various assertions about the GPL’s decline and their methodologies, Fontana concludes that “even if there is a decline in the GPL, it must be very slight” but admits that “we don’t actually know what’s going on.” However, he apparently thinks that the possibility is all too likely, because he speculates extensively about what the reasons for such a decline might be.

One possible reason is the increase of web developers, writing for cloud services that prefer to keep their software proprietary. Another may be that dual-licensing, in which software is available with both a copyleft license and a more restrictive or even a proprietary license, is now perceived as more cumbersome than permissive licenses.

However, Fontana suspects that the greatest reason may be the increased complexity added by GPLv3. According to Fontana, Eben Moglen justified GPLv3’s increased complexity as an unavoidable necessity. He paraphrases Moglen as saying “The BSD license is simple because it doesn’t do anything” — but then adds on his own account, “But I think that GPLv3 goes too far in the other direction.”

In Fontana’s account, the GPLv2’s complexity was manageable because, in the past, the Free Software Foundation in general and its founder Richard Stallman in particular used to spend considerable time online interpreting GPL licenses for developers. The result was a broad consensus about what the license meant.

The trouble is that, since GPLv3, much less of this interpretation has been done. Instead, interpreting licenses has been turned over to lawyers and other experts. Fontana acknowledges his own pleasure in being one of those experts. But he admits that the fact that GPLv3 is less readily understandable than BSD style licenses might have contributed to any decline in its use. Developers, he suggests, want to pick a license without having to wade through legal language or relying on experts.

One possible solution may be the one used by Creative Commons licenses: A so-called human-readable version of each license that gives its essentials in clear language, backed by a longer, more complex legal version. But the solution that Fontana seems to favor is a license that is more clearly written to start with, backed by an authority in how to interpret it.

Fontana acknowledges that the Free Software Foundation probably disagrees with him, and that his suggestion is “unorthodox.” Perhaps that is the reason he prefers to downplay Copyleft.next.

However, to judge from Fontana’s posts on Identi.ca, so far as Copyleft.next has any clear goals — which is debatable — it seems intended as an effort to produce a clearer version of GPLv3. “I would like to try to make #GPL.next shorter, simpler, easier to understand, if possible,” he writes in one post, and “I’m thinking of replacing ‘Program’ with ‘Work’ to emphasize that license can be used for non-software.”

Admittedly, the main effort so far in reducing complexity seems to be the deletion of explanatory aspects of the GPLv3 to make it shorter. However it does seem safe to say that CopyLeft.next represents a practical effort to test Fontana’s theories of how to make the GPL licenses more attractive.

Fontana is not automatically opposed to BSD-style licenses, suggesting in his talk that FOSS would benefit from a greater use of them in order to evaluate their strengths and weaknesses. But, unsurprisingly, he believes that any serious weakening of the GPL would be harmful to free software. In Copyleft.next, I suspect, we see his efforts to anticipate and prevent that weakening.

An Evidence-based Argument

Whether Copyleft.next will amount to anything is impossible to predict right now. For now, the real value of the news is that it might give Fontana’s analysis of the current state of FOSS licenses more attention.

Not that Fontana’s views are definitive. As Bradley Kuhn points out in the podcast that broadcast Fontana’s talk, another reason for any decline in the GPL might be that younger developers, having come of age in a period in which code was routinely released, may under-estimate the importance of GPL licenses in creating that expectation.

In other words, like people who grew up without the threat of smallpox or measles, perhaps they don’t appreciate the importance of vaccination.

Other critiques are no doubt possible. However, while Fontana’s analysis may not be perfect, it is one of the few efforts to explore the question of the GPL’s current status from an impartial, evidence-based perspective. Although it may not offer a complete picture, it does seem to provide a more accurate analysis than other efforts to approach the same topic.

Even if Copyleft.next eventually contributes nothing to actual licensing, the observations it seems to be based upon are worth hearing. They reflect one of the saner efforts to evaluate the current state of free licenses, and deserve to more widely known, regardless of whether Copyleft.next itself succeeds.