Creativity, innovation, freedom: these three intertwined concepts arise time and time again, in everything from fashion to cookbooks to political movements. We see explorations of them in television shows, court cases, art installations, online pontificating, and op-eds. It isn’t that people think that creativity, innovation, or freedom are bad, but that each of the concepts implies an intrinsic inverse, and that inverse is where things get tricky.

Catch up on previous entries in the Influential Articles series.

Software, and in particular open source software, is a fantastic embodiment of that complexity.

The inverses of open source ideals

What prevents people from unleashing their full creativity when creating software? If you’re not a lawyer, the answers may not immediately come to mind. Copyright, intellectual property, patents, liability, regulation, and more are all part of what governs the highly profitable and competitive technology sector. They are highly nuanced and vary from jurisdiction to jurisdiction, which is why we have lawyers (and why I am not one)!

In open source, we have the Open Source Definition (OSD) (archive) preserve (or reestablish) rights to creativity, innovation, and freedom in software development by codifying the scope and limitations of their inverses. The OSD works primarily through open source licenses, which makes sense given that attempts to limit rights work through court systems. Open source licenses protect both creators and consumers of open source, which allows creativity, innovation, and freedom to thrive unfettered.

At least, in theory.

Open source has taken a bit of a beating lately, with muddied interpretations of what it means to be open source, increased pressure to monetize fundamentally unmonetizable products, intense scrutiny from governments and institutions, and technological advances that wouldn’t even exist without open source in the first place!

This month and next, we’ll cover two pieces about open source that pertain to these ideals.

Why Open Source Matters, by Stephen O’Grady

Stephen O’Grady at RedMonk published Why Open Source Matters (archive) just earlier this month. This piece was prompted, at least in part, by another that took the absurd (in my opinion) position that open source licenses don’t matter. I deeply appreciate this piece not only for its exploration of history but also for its logical rigor.

Developer buy-in isn’t a valid measure

Technology companies have a bad habit of prioritizing the opinions of engineers over everyone else. That, combined with a slew of other factors, has led to a bit of a superiority complex—even when the topic at hand is outside of our expertise. Given that, we do have to at least address the question of whether developer buy-in should be the litmus test for whether licenses are still important.

If you ask your average engineer who just wants to do their job if they care about open source licenses, they probably will say that they don’t (after looking at you strangely for accosting them on the street). But this is why you can’t ask leading questions like that. You also can’t ask leading questions like “do you care about freedom of expression and creativity?” These types of questions give the expected answer in the question.

Stephen points out that engineers are saved from having to care:

“Developers don’t have to worry, among other concerns, about royalties or what size their user base is or what their revenues are when using open source software because the open source definition does not permit restrictions on use. Ironically, the very meaning of open source that developers imperil with their neglect is what has allowed open source to become what it is today.” (link)

Open source licenses give developers the freedom to let their creativity flourish when creating software, whether or not what they build is open source. They are free from the mental, logistical, and financial overhead of negotiating contracts and licenses. Many open source licenses also include a liability and/or warranty clause that protects the developer from being sued for any harm or lost profits that come from the usage of their software. The experimentation and innovation-without-borders that has led to open source being such a force in technology would have been significantly hampered if developers had to shoulder these concerns and costs.

“Arguing that the definition of open source doesn’t matter because developers don’t care about it is like arguing that climate change doesn’t matter because citizens don’t care.” (link)

Read between the lines—affiliations matter

We have seen near-constant efforts to chip away at what counts as open source for the last decade or more. If we go back to the original beneficiaries of the copyrightability of software and its source code, we can see who stands to benefit most from the erosion of the open source definition and relevance of open source licenses. It’s not the developers. It’s not open source maintainers or contributors.

It’s the same as it was before: people looking to make money off of software that was previously free.

Because the English language is…less than precise, the word “free” introduces some confusion. There are multiple meanings of the the freedom involved in open source, some of which are:

  • free (no cost) access to source code
  • free (open) access to source code
  • freedom (right) to modify source code
  • freedom (right) to use source code
  • freedom (right) to build upon source code

The open source ethos isn’t fundamentally opposed to the monetization of open source technology. Most, if not all, of the technology that you pay for uses open source (you may just not know it). If people have been making money off of open source since before the codification of the OSD, what has changed?

“What is relatively new is what appears to be an emerging consensus from commercially motivated parties, typically single party commercial open source vendors and especially their investors, to act collectively – explicitly at times, implicitly in others.” (link)

There has been a fairly insidious marketing campaign to instill the belief that you (for some definition of “you”) should pay (for some definition of “pay”) for open source software. This campaign has been conveniently conflated with the belief that open source maintainers and contributors deserve compensation for their work. That conflation is a false equivalence. You can believe that the people doing the work should be compensated without having to sacrifice the freedoms of open source.

Two things govern open source: the definition and the license. As those are the only mechanisms that people can use to exert control over the concept of open source, we should look at efforts to change them carefully and with a hefty dose of skepticism. As Stephen points out:

“Generally, what [the people wanting to change the definition of open source] are trying to sell you is a license that allows them to have their cake – the immensely successful and popular brand that is ‘open source’ – and eat it too, which is to say the benefits without any of the costs of open source.” (link)

Innovation, but only for your friends (until they betray you)

Two criteria of the Open Source Definition that get a lot of criticism are the requirements that open source licenses must not discriminate against persons, groups, or fields of endeavor. They seems like good things, right? Yet they are the criteria that many so-called “open source” licenses fail to satisfy. Some restrict a project’s free use by companies that make over $x M in revenue, or require you to acquire a license if you have more than y monthly users, or forbid you from building upon the project to build anything that may compete with it.

As enforcing licenses is unsurprisingly difficult to do (unless your project uses telemetry to phone home, an extremely unpopular concept in the open source community), what these terms actually translate to is the right to selectively squash competition and extract additional revenue. As technology companies live in a constant state of flux, who is considered a valued collaborator today may be a competitor tomorrow. The project that enables you to build a business may in fact become a costly liability should your business succeed.

The clauses that these not-open source licenses introduce are designed to appear reasonable. They are crafted to make anyone who opposes them look (and feel) like they are siding with the establishment against the underdog. They purport to support open source by eroding it.

“If vendors are successfully breaking open source’s strict and hard won definition and its fundamental promises by inserting qualifications and restrictions into it today, what is to stop them from introducing more onerous restrictions over time?” (link)

“Open source, but only until we decide that you’re a threat” is not open source at all.

Open source does, indeed, matter

Open source has quite enough to be going on with right now without a muddying of the waters. The fundamental principles of open source matter and deserve defending. People and companies who have benefited from open source don’t get to change what counts as open source just because it is no longer advantageous to them.

There’s the saying that “on the internet, nobody knows you’re a dog” (archive).

In open source, nobody knows you’re a single party commercial open source vendor in a Tux costume.