Re: Draft W3C Excerpt License (Re: WG Decision - spec license use cases)

Fri, 06 Mar 2009 18:39:49 -0500
Philippe Le Hegaret wrote:

>You're suggesting that W3C should adopt an open source *software*
>license for a specification. I don't believe we reached consensus on
>that yet.

I would agree. I don't think the issue has been analyzed from sufficiently many angles yet. Considerable thought went into the creation of various license agreements to foster open source software projects -- I would venture to say that there are more of those around than may meet the memory of some of the youngsters who seem to hang out around here. The IP regimen is indeed broader just than just that present in patent, copyright and trademark [1]. The ways of licensing around and amidst IP protection are broader than those descended from BSD (which I think would include most of those being discussed) [2] . All those possible ways of attempting to use copyright and other IP law to actually foster distribution of ideas, would form a rich collection of quasi-mathematical objects, in a sort of modal logic-space flavored by simple causal theories [3]. Crafting a license within that space to optimize the propagation of good software might clearly be different than doing so to reign in the divergence of software (which to a large extent is what standards do). They almost solve opposite kinds of problems, so why would we expect one to work everywhere? Since lots of thought went into licensing software, why not spend some time thinking about how to license specs? What do we want to foster? What do we wish to guard against? I think specs are more like books than they are like software. I don't see what rationale we would have for assuming that open software licenses should have anything to do with specs. Has the rationale that they must been spelled out somewhere or is it just a golden hammer ?

The directions that Creative Commons has gone or even the ACM would seem, on the face of it, to handle text a bit better. The W3C is another organization with considerable experience in this area, so I'm thinking they might be a good source of advice. The WHATWG license reads:

"You are granted a license to use, reproduce and create derivative works of this document."

What might W3C wish to guard against that WHATWG doesn't?

I rather like the "use case" approach suggested by Philippe: develop a grammar for the actual utterances that people want to be able to make. Of the various uses that people have advocated I see everyone agreeing that folks should be able to quote from the spec for things like books and programs. I'm not sure that licensure alone would be able to prevent that, even if it tried: 
    "Reading this sentence implies your agreement never to quote it." [4]
I don't think that works, at least not in the US or most of Europe.

One edge case not yet having consensus seems to be the case of the forking specification. Some seem to think that forcing would-be forkers to reinvent wheels would pose an unnecessary hardship: should all future specs not just be able to start with the last definitive W3C spec as a starting point? Others seem to think that it is a healthy exercise to just start over from scratch (I would hesitate to put myself in that category, since by prececents established within the WG, doing so would doom its outcome from the beginning).

In [5] I tried to find cases that not everyone would agree with. It is quite possible that grammars derived only from legal utterances (in this case uses) might fail to disallow forbidden ones. Specifically, I tried to ponder if there is any situation that everyone would agree the Working Group should protect against. If not, then why have any license whatsoever?
  An organization or individual modifies the content of the spec in ways that intentionally misrepresent its content and that mislead others as a result. We do not, I think, want to encourage prosecution against the well-meaning author of a book who misunderstands the specification, but rather against those who might seek to perpetuate coding practices contrary to the spec which might, for example, favor one browser implementation over another.
That is, consider a derivative malevolent spec which overtly attempts to undermine the good will of the participating parties: is that something everyone agrees is worth precluding?  

I suspect that most "permissive licenses" (possible exceptions might be found in the WHATWG copyright statement or at [6] in its reference to "common sense") would still prohibit the above. In fact one might argue that trademark and antitrust or fair-dealing laws would step in at any rate and trump whatever license agreement accompanies the spec anyhow. That's why we have attorneys.

At the same time, might it be possible to form a malicious subset of a spec? Some collection of properly cited, referenced, and accurate quotations of a spec that, in the aggregate, would specifically serve to influence authors to write code that works in one browser and not another? Would it ever be possible to guard against such a thing? 

Another possibly troubling thing, and I admit I don't know the answer, is this: did the agreement under which participants first entered into the Working Group (between 2007 and the present) constitute one set of expectations about the intellectual property status of their contributions? Would any change in those agreements (either more or less permissive) have to be renegotiated for continued participation? There may have been some sort of clause that says the W3C reserves the right to change the terms of the copyright of such contributions; if so then I suppose this is not a concern.

I'm not sure, for example, what qualifies as a "W3C Document" and what doesn't. Is it a W3C Document if and only if it is so labeled? I'm assuming that it would not apply retroactively to any documents for which separate legal agreements were negotiated.

David

[1] http://srufaculty.sru.edu/david.dailey/copyright/plantlaw.htm
[2] One could argue that much of the ideational underpinning can be found in places such as incompleteness theories dating back to Russell, Tarski and Godel.
[3] http://srufaculty.sru.edu/david.dailey/copyright/uncopyrightable.htm
[4] Although the utterance is probably too small to attain copyrightable status, it attempts to use licensure to accomplish what copyright cannot.
[5] http://lists.w3.org/Archives/Public/public-html/2009Feb/0324.html
[6] http://srufaculty.sru.edu/david.dailey/copyright/notice.htm