Licensed, License-Free, and Unlicensed Code
Arto Bendiken
the "licensing under the Unlicense" contradiction and
misunderstanding, I wrote up the following brief blog post. I include
the plain-text content inline here so as to make it easy to respond to
and comment on any given paragraph.
http://ar.to/2010/12/licensing-and-unlicensing
As discussed on the Unlicense.org mailing list, the notion of
"licensing something under the Unlicense" is a not infrequent
misunderstanding that calls for better explanations as to the
essential difference between licensed, license-free, and unlicensed
code. I will attempt to break it back down to the fundamentals and
work upwards from there.
To begin, it's useful to briefly review what copyright is and isn't.
As Peter Saint-Andre explains in his very readable essay Who's Afraid
of the Public Domain?, copyright is not a natural right. Rather, it is
a government-created distribution monopoly privilege, ostensibly
instituted on utilitarian grounds, and being (since 1988)
automatically granted you whether you want it or not.
Knowing that, be sure to wince a little every time you see that
all-too-familiar statement, "All rights reserved", because there are a
couple of problems with it.
First off, it would be much more accurately restated as "All
privileges retained", since copyright isn't a "right" at all.
Secondly, the statement as a whole, in any form, is entirely
superfluous (since 1988), as it just refers to the prevailing default
state of things: hands off, except if otherwise explicitly and
specifically given permission.
Meaning that if you stumble across some code with no attached
licensing information, copyright laws would have you treat it as "all
privileges retained", even if its author in fact was just trying to
make it available with no strings attached.
So, this then is why the Unlicense is needed: if you never asked to be
a monopolist, even a small-time one, and quite simply have no interest
nor desire to be one, it so happens that you actually need to
explicitly tell your potential users this in the form of a copyright
waiver called a public-domain dedication.
If you don't do this, and just put your software out there without a
license or dedication at all, what you're effectively doing, according
to copyright laws, is slapping the implicit and forbidding "look but
don't touch, and certainly don't copy" license on it. The result is
known as license-free software, and won't exactly help make you or
your software very popular.
By instead adopting the Unlicense for your code, what you're doing is
voluntarily and unequivocally giving up any and all monopoly
privileges granted you by the state and unlicensing your code into the
public domain, that is, the pool of entirely uncopyrighted and
unencumbered works, available for anyone to freely use for any
purpose.
Clearly what you're not doing, then, is "licensing" your software
"using the Unlicense". That would be more than a bit nonsensical: how
could your software be licensed and not licensed at the same time?
It's either one or the other: strings attached or not. The Unlicense
is intended to serve as an actual license only as a fallback strategy
in backward jurisdictions that otherwise have trouble recognizing the
right of authors to voluntarily waive all monopoly privileges enforced
in their name by the state.
Yet we've now seen a project or two with README files that proudly
claim "Copyright (c) 2010 J. Random Hacker. All rights reserved." in
one sentence and then go on to quote from the Unlicense on the very
next line, "This is free and unencumbered software released into the
public domain." Needless to say, those two statements contradict each
other in the worst way.
In fact, I think these specific examples just go to show how deeply
imbedded the notion of copyright still is in Western culture, even as
we're already otherwise taking the first stumbling steps towards a
post-copyright world.
It seems likely that what the authors in question really meant to
convey was simply the equivalent of "Written by J. Random Hacker".
Writing that familiar "Copyright (c)..." had just become so ingrained
a habit that it had practically supplanted the notion of "Written
by..." in their minds -- and in the minds of countless others, myself
certainly included in the not-too-distant past.
Still, the mistaken notion of "licensing something under the
Unlicense" also demonstrates why the Unlicense is sorely needed in the
first place, and why it has already enjoyed significant uptake over
the course of this year: even if (at least in certain arbitrary
regions of North America) releasing something into the public domain
is, in principle, as simple as stating "I hereby...", that can still
present too much cognitive dissonance for people thoroughly inculcated
into the modern "license-to-live" frame of reference.
Thus "but everyone has a license file; hence I need a license file;
what do I put in it?" is but one of the many practical questions the
Unlicense seeks to answer for public-domain software projects, in
essence backporting the copyright-free future into an easy-to-use
format suited to the copyright-afflicted present.
It is perhaps both inevitable and necessary that, at this still
relatively early stage in the ongoing decline of copyright as an
institution, contradictory or confused statements like "licensing
something under the Unlicense" abound. They may even be useful as
conversation starters on how unlicensing code into the public domain
is fundamentally different from merely choosing yet another random
permissive license.
An apt contemporary analogy for elucidating the contrast between
permissive licenses and the public domain might be the "manage
subscriptions" and "unsubscribe" links in some newsletters.
A permissive license is like clicking "manage subscriptions" and
unchecking every option save for "demand attribution". The Unlicense
is like clicking "unsubscribe" and opting out of the copyright game
altogether, ahead of the pack. The fallback strategy of treating the
Unlicense as an actual license is just a workaround for broken
unsubscription systems, making use of "manage subscriptions" to
uncheck all possible options instead.
Perhaps in another decade or so our common discourse will have left
the speed bump of licensing sufficiently far behind in the dustbin of
history that the kinds of contradictions discussed here will be more
readily and more widely recognized as nonsensical. The very name of
initiatives like the Unlicense can help drive that change, bridging us
of the last copyright generation to the bright and unlicensed
post-copyright future.
--
Arto Bendiken | http://ar.to/