Fwd: [OSM-talk] License to kill

Florian Lohoff flo at rfc822.org
Mi Mär 4 08:55:57 CET 2009


Fuer die die nicht vor seitenweisem Englisch weglaufen. Steve
schreibt was zu den endlosen debatten bezueglich dem Lizenzwechseln
von CC-BY-SA auf irgendwas anderes (ODbl). 

Probably worth reading ...

Flo

----- Forwarded message from SteveC <steve at asklater.com> -----

From: SteveC <steve at asklater.com>
To: Talk Openstreetmap <talk at openstreetmap.org>,
	"Licensing and other legal discussions." <legal-talk at openstreetmap.org>
Date: Tue, 3 Mar 2009 20:28:32 -0800
Subject: [OSM-talk] License to kill

Where to begin?

Why don't we start with the beautiful community we've built and the  
stunning map can be the backdrop. On this canvas lets spread the  
pieces of the puzzle and see if we can put a few things together.

We have incredible coders. We have mappers that stay up all night  
adding lakes in Bolivia from aerial imagery. We have people building  
community across mailing lists, forums and mapping events. We have  
user interaction people. We have stunning cartography from the planets  
best cartographers. We have a sysadmin team second to none. We have a  
volunteer board doing their best with the tools they have. We have  
fake bloggers so involved in their espionage they fake their own  
retirement and write in a different tone so you don't think it's them.

But, we don't have a shed load of intellectual property lawyers with  
aeons of experience.

Now that's important. Laws and licenses tend not to be written by  
sysadmins. Or Cartographers. Or even expert C++ coders.

We're a funny bunch, us hackers. We can deconstruct a problem and code  
around it. We can avoid logic traps. Every day we decompose algorithms  
and we have no hierarchy other than our code. Is your code better?  
Then you're better. Am I a better coder if I have a degree in computer  
science? Probably not actually. But if I have 10 years hacking on  
Apache or something... then I have a flag to fly. And the wonderful  
thing about our skill as coders is that it applies to a lot of other  
area. We can make electronics if we want. Many of us know quite a bit  
about Physics or Chemistry. We know that coding is basically  
mathematics [5] so we tend to be good at that too.

That logic and intuition we learn as coders is just incredibly  
powerful. We're like wizards with the secret spell and often the world  
lays as an open book to us, and we need not turn the page to know the  
ending of a story. Because we figured it out two equations ago. Or  
it's just like that other coding problem we worked on a few weeks ago.  
Or actually, it's like cantors diagonal slash[6] and we can use that.  
Maybe if we treat the engine as if it were a misbehaving piece of  
code[4] we can figure out the issue just by being scientific.

And that's amazing. It's stunning. It's jaw-dropping. We see the world  
a different way, and we build incredible things like wikipedia, or GNU/ 
Linux. Or we hack together a windscreen wiper which pauses between  
wipes [8]. Or a vacuum cleaner that needs no bags [7].

All that incredible skill very often, sadly, counts for nothing when  
we want to become managers. Or write licenses. Or diagnose our own  
illnesses. Or fall in love. All that logic and training doesn't help.

And we really, really don't like that. We don't like to talk about it  
either.

It's an Outside Context Problem [1]. It's the boundary of our world.  
It's Godel, Escher, Bach[2]. It's the knowing that there is something  
outside of our System of the World[3]. We can't use C++ to manage  
people. We can't use logic to fight with a 2 year old having a  
tantrum. We can't use the scientific method when having an argument  
with our girlfriend, or boyfriend.

And I'm going to have to disagree with many of you respectfully that  
all your coding, or writing, or mapping experience makes you a  
qualified lawyer. Why? Not because you don't have a degree in law. Let  
me say that again - I don't disagree with you because of your  
qualifications... just like I wouldn't disagree with you over a coding  
or logic problem if you don't have a degree from MIT or Cambridge. Law  
is about three things (at least in the societies I've lived in). One  
of them you can nail. You can nuke it from orbit. You will win like  
some vast chess match. The bit you can win is the logic.

The logic of law, of licenses, of contracts... that is trivial. If the  
contract says pay peter £100 or $10 or €1 if he paints your bike shed  
blue then your logic will pay him. If there is a get out clause buried  
under mounds of legalese you can find it. You will exploit it. You  
will win like a champ. I have utterly no doubt. I've used it. I've  
sued people and I've won. And they deserved it.

But what you don't have with all your power and logic is a  
understanding of case law. This would be pillar two in Steve's  
Understanding Of Law. This is where it all falls apart. Because where  
all that logic breaks like the crumple zone on a Ford Escort hitting a  
tree, is the real world. Logic dictates we should lock up 12 year old  
girls for infringing the copyright of Michael Jackson. Logic dictates  
we should lock up terror suspects without trial. Logic dictates  
breaking a copyright protection mechanism is a criminal offence.

And that's all a bit crazy.

Because here's where logic meets opinion. And that opinion is  
called... case law.

Case law says, lets not bring the same thing to court lots of times.  
That's expensive and dull. So if this case here, lets call it A is  
like that case over there... B. And A was decided like this... and A  
is really like B... then B should be decided similarly to save a lot  
of time, effort, hassle, money, dullness.

It turns out that if you watch movies about the cool lawyer saving the  
day they often spent 3 years looking at obscure case law from 1834  
[9]. They use this to show the case is like that other case over  
there... and win.

So why is it so hard and expensive to become a lawyer and why do they  
think they are so cool? Because they have a magic power and they are  
wizards just like you, but their power reins over a different domain.  
Sometimes you may clash and sometimes you may win. In general though,  
you are better at debugging than they are and they don't know anything  
about gcc compiler options. In turn.. .you don't have an in depth  
knowledge of intellectual property law or that case that was just  
decided last week by the supreme court.

They, the legal guys, will read things like "s/foo/bar" and think it's  
s divided by foo, divided by bar. You may read "Without  
prejudice" [10] and think "great now we can have a conversation and  
not worry about the threats".

All their power and majesty counts for nothing in our world. And all  
of ours for nothing in theirs.

But it's not like we're not motivated right? We have money, we have  
time, and we have some of the smartest people on the planet and we can  
defend ourselves with dignity and grace as the pirate bay folks are  
doing right now. And we can attack when we want. But often we join up  
with lawyers who are really secret coders. They're pretty bad coders.  
But they give us some help and we give them interesting dwarves to  
slay and some street cred that they're friends have powers in another  
dimension to theirs. So on occasion, we help each other.

This is one of those occasions.

We have two of the most capable legal guys on the planet in this  
domain trying to help us. They want us to win. They want to see us  
take off and not fly on vapour.

But what do we do?

We blame Steve because he's evil. We blame the process because it took  
too long. We blame the working group for not being quicker. We figure  
the foundation must be culpable. We write long rants about how it's a  
dire emergency...

But pause for a second.

Close your eyes, take a deep breath. Open them and look around. Oh...  
there's that massive community we've built. Look over there, it's an  
amazing map we've built from a blank canvas in to the most stunning,  
best, most fantastic map on the planet. Birds are singing. Honestly.  
An angelic choir descends and something akin to the ITO! animation  
explodes and dances in front of you, completing a map of the world for  
free in front of your eyes. For *free*. For __FREE__.

Now lets turn to the board and the working group. They're volunteers..  
but they haven't been doing their job! They've been slow! It took them  
so, so *so* long to get things done... But hold on nobody has been  
saying they could have done better... oh and we don't see any offers  
of help.. or offers to be on the group. Because it's a bit easier to  
stand on the sidelines and we like it here. But lets just question  
them, their reputations and priorities anyway... after all they  
deserve it for volunteering.

Oh... hang on a minute most of the delay was actually due to  
consultation between lawyers in the other dimension. The other land  
where it's ok to take time to review legal processes in a quiet,  
informal, slow and deliberate way. Like how it's done by actual 'real'  
lawyers in actual 'real' legal firms.

But! Hold on! We should see every draft of the license! Every time  
they add a comma, or review something! Every sentence! You're taking  
away our rights you evil volunteers!

Yes we should in the same way that a lawyer should comment on your C++  
or ruby code after every 20 characters. They should comment on your  
mistakes, your lack of foresight. They should publish widely. They  
should blame you when it doesn't compile because you left off a semi- 
colon. If a function is half written, so be it! Release it anyway. But  
we don't tend to do things like that, do we? We do things like release  
the code by doing a subversion checkin... when we're reasonably happy  
with the code we've done.

Ladies and gentlemen you just saw a subversion checkin of the license.

Now you can blame me for being sometimes a little overzealous for  
allowing them the privacy and time to complete their work.. but I have  
a lot of respect for them and a lot of time for them. I believe by  
showing that we understood them. That I knew what I did not know. That  
I knew I wasn't a lawyer. That we weren't going to slap them with 300  
emails on every release... that we built something better. You can  
disagree with me. You can point to the projects you've built with  
100,000 people in them. You can point to your legal buddies who are  
better than mine... but that was the decision I (and by the way the  
license team and the board) went with.

Lets look at the other reason we did that. On any objective measure,  
legal time is worth more than my time. The last time I had to sue  
someone because the infringed my copyrights the guy was charging £250  
an hour. An hour! Insane! So every hour they spend looking at your  
comments is an hour not making the license better with the peer review  
from another lawyer. Or making £250. And they're doing this for us for  
free.

If you were paid £250 an hour and worked for free for someone on the  
side... would you like to work on the Space Shuttle or a bicycle?  
Because what you're asking them to do is work on your bicycle because  
it doesn't have rocket engines. You don't understand enough about  
bicycles to know they traditionally don't have rockets attached and so  
you take up a lot of their time arguing about rockets... and not about  
your flat tyre.

They're far too polite to say this of course.

But, and you know this, we listened anyway. We worked hard to build a  
home around the license. Somewhere to vent your frustrations. We built  
another comment period in. Again. Jordan will take a look at your  
rocket plans and space lasers. he will take a lot of time and distil  
it down in to a puncture repair kit. And you know what the license  
will be better for it. And he'll thank you for it. And we will all be  
better off.

So lets concentrate on that. Lets build a better process. Lets build a  
consensus. Lets understand that they know more about law than we do  
and act in a humble and respectful way. Lets help and become a  
volunteer. Lets put all these good ideas in to a plan. And lets build  
a better project.

Notes
=====

* I'm well aware that the above doesn't cover every single issue  
raised like whether you have a crack team of intellectual property  
lawyers ready to spring in to action, or you're not a coder. The above  
was a vast set of metaphors, taking it literally implies you're not  
cognizant of that. Re-read the stuff about logic not applying totally  
to love, management, law, war and so on ad infinitum.

* Stop thinking that CCBYSA applies to OSM. It doesn't very well at  
all. Richard Fairhurst can tell you the 3.29 billion reasons why

* Stop thinking Steve is Evil and out to own the license. If you spent  
more than 34 seconds thinking about it you'd realise that the best  
possible route for him would be Public Domain so he could do whatever  
he wanted. Really. Think about it. In fact I truly believe viral is  
better for the health of this project and I've fought hard against my  
own self interest on this.

* Why hasn't Steve responded in 3 days and rah rah rah. Because I'm  
taking time to digest all your comments and it takes time because  
there are so many, there are repeats and there is the personal stuff  
to distil out.

Best

Steve

[1] see iain m banks
[2] see hofstadter
[3] see neal stephenson
[4] see the zen of motorcycle maintenance
[5] see turing or danny hillis or the diamond age
[6] its really scary, see GEB
[7] see dyson and his book
[8] see flash of genius
[9] see good will hunting
[10] you really, really need to look that up if you don't know what it  
means
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----- End forwarded message -----

-- 
Florian Lohoff                  flo at rfc822.org             +49-171-2280134
	Those who would give up a little freedom to get a little 
          security shall soon have neither - Benjamin Franklin
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