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A Second Cambrian Explosion of Open Source Licenses Or Is it Time For Open Source Lawyers to Have Fun Again?

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As the open source world has grown, so have concerns about the context in which openly licensed items are used. While these concerns have existed since the beginning of the open source movement, today's larger and more diverse movement has brought new urgency to them. In light of this revived interest within the community, the time may be ripe to begin encouraging experimentation with open source licensing again.How We Got HereWhile the history of open source software is long and varied (and predates the term open source software), for the purposes of this blog post its early evolution was driven by a fairly small group of individuals motivated by a fairly homogeneous set of goals. As the approach became more popular, the community developed a wide range of licenses designed to address a wide range of concerns. This 'First Cambrian Explosion' of open source models and software licenses was a time of experimentation within the community. Licenses varied widely in structure, uptake, and legal enforceability.Eventually, the sprawling nature of this experimentation began to cause problems. The Free Software Foundation's Free Software Definition and the Open Source Initiative's Open Source Definition were both attempts to bring some order to the open source software world.In the specific context of licensing, the Open Source Initiative began approving licenses that met its criteria. Soon thereafter, it released a License Proliferation Report detailing the challenges created by this proliferation of licenses and proposing ways to combat them.These activities helped to bring order and standardization to the world of open source licensing. While OSI continues to approve licenses, for well over a decade the conventional wisdom in the world of open source has been to avoid creating a new license if at all possible. As a result, for most of this century open source software license experimentation has been decidedly out of style.Largely for the reasons described in the License Proliferation Report, this conventional wisdom has been beneficial to the community. License proliferation does create a number of problems. Standardization does help address them. However, in doing so standardization also greatly reduced the amount of license experimentation within the community.Reduced experimentation means that concerns incorporated into approved licenses (access to modifications of openly licensed code) have been canonized, while concerns that had not been integrated into an approved license (restrictions on unethical uses of software) at the moment of formalization were largely excluded from consideration within the open source community.What ChangedWhat has changed since the move towards codification of licenses? The open source software world has gotten a lot bigger. In fact, it has gotten so much bigger that it isn't just the open source software world anymore. Creative Commons - today a towering figure in the world of openness - did not even exist when the Open Source Initiative started approving licenses. Now the open world is open source hardware, and Creative Commons-licensed photos, and open GLAM collections, and open data, and all sorts of other things (this is a whole other blog post). The open source world has moved beyond early debates that questioned the fundamental legitimacy of open source as a concept. Open source has won the argument.An expansion of applications of open source has lead to an expansion of people within open source. Those people are more diverse than the early open source software proponents and are motivated by a wider range of interests. They also bring with them a wider range of concerns, and a wider range of relationships to those concerns, than early open source adopters.What is Happening NowThis broader community does not necessarily share the consensus about how to approach licensing that was developed in an earlier period of open source. They bring a range of viewpoints that did not exist in the earlier days of open source software into the open source community itself. They are also applying open source concepts and licenses to a range of applications that were not front of mind - or in mind at all - during the drafting of today's canonical licenses.Unsatisfied with the consensus rules that have delivered us the existing suite of (incredibly successful) licenses, parts of the community have begun experimenting again. Veteran open source lawyers are rewriting licenses with public understandability in mind. Community members are transforming their interpretation of open source development into licences that invite collaboration without intending to adhere to the open source definition. Some of these licenses are designed to address concerns traditionally excluded from the scope of open source licenses. I am directly involved in the ml5.js attempt to do just that.The creators of these experiments are responding to a standardized approach to licensing that does not fully accommodate their needs and concerns. In some cases the standardized approach does not accommodate these concerns because the community litigated including them in the past and decided it could or should not be done. However, even in those cases, that debate happened within a very different community in at least somewhat different contexts. The conclusions arrived at then are not necessarily valid for the broader world that open source finds itself inhabiting.In light of that, it may be time to begin encouraging experimentation in open source licensing again. Encourage people to test out new approaches by applying them to real world problems. In some cases, the decisions made in the past will prove to be robust and sustainable. In others, a new debate will reveal the decisions' shortcomings. In both cases, the open source community will be stronger by being tested from within.Coda: Is This Post Just a Lawyer Advocating for Lawyers to Have More Fun?Throw out the old ways of doing things! Try something new! Experiment! Is this just a call for lawyers to have fun by screwing around with exotic licensing concepts at the expense of everyone else's stability (and sanity)?It could be. But I don't really think so. The thing about lawyers (as a group - there are always exceptions) is that novelty and instability makes us nervous. Things that are tried and true will probably work. That means we do not have to worry about them. New things - who knows what will happen to them? That uncertainty makes lawyers nervous.That is part of the reason why lawyers like today's conventional wisdom. The canonical set of open source licenses have more or less worked for decades. It is unlikely that they will explode, and it is even less likely that they will explode in the face of the lawyer who uses them on any given project. In contrast, any lawyer who writes their own license is setting themselves up for a period of anxiety, waiting to discover what they missed or how things will go wrong.Of course, some lawyers do think it is fun to cook up new open licenses. And maybe this post is a call for them to do more of it. But, on balance and as a whole, introducing new licenses into the world of open source will probably cause open source lawyers more anxiety than joy.I think that anxiety is probably worth it. But that will be far from a universally held position.Originally published on Michael Weinberg's blog and repbulished under a CC-BY-SA 4.0 license.

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posted at: 12:00am on 28-May-2021
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High School Teacher's Copyright Suit Against Netflix Gets Dismissed Because Coincidence Isn't Protectable

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Of all the areas that result in copyright lawsuits that never should have been filed, it surely must be ignorance of the idea/expression dichotomy that is the most common. That link will take you to a litany of posts about copyright fights in which one party sues another over elements of a creative work that are themselves not protectable. The basic explainer goes like this: the specific expression of a work, or even the specific expression of unique thematic or character elements, can be protected by copyright, whereas mere general ideas cannot. This is why Batman is a copyrightable character, but that copyright cannot be used to sue the hell out of anyone that writes a story about an insane rich person who wears a cape and cowl while fighting bad guys. Idea versus expression.It's crazy just how many lawsuits get filed by full grown adult lawyers who don't seem to understand this. One recent example is a lawsuit brought by a high school English teacher against Netflix over the latter's series, Outer Banks. The suit was tossed at the motion to dismiss stage, with the court reasoning that the majority of the 40-plus claims of infringement amount to either non-protectable ideas, or allegations that amount to mere coincidence that has nothing to do with copying anything at all. On the first of those:

In a 25-page opinion, U.S. District Judge Timothy C. Batten Sr. said Kevin Wooten’s 2016 book “Pennywise: The Hunt for Blackbeard’s Treasure!” had a significantly different plot, characterization, mood, pace and settings than the Netflix original.“To be sure, both works involve shipwrecks and treasure hunts,” Batten said. “But to analyze their plots at such a high level of abstraction would render every work involving a hunt for buried treasure susceptible to copyright infringement.”
It's a useful high-level takeaway on the majority of issues with the lawsuit, but it's worth noting that the court did in fact do a deep dive on each of the claims made. Not all of them amount to generic story ideas such as the above. While the actual plotlines and characters are very, very different -- a different number of main characters, different treasures being hunted for by those characters, different outcomes, etc. -- , some of the claims detailed out in the dismissal are downright absurd.
As a preliminary matter, many of Wooten’s purported similarities either do not exist or are “random similarities” that “could be found in very dissimilar works.” Beal, 20 F.3d at 460 (quoting Beal, 806 F. Supp. at 967 n.2). For instance, he argues that “both Works clearly sought to invoke an avian theme at the mausoleum.” [19] at 14. He points out that in his novel, Nathan and Ben find a clue hidden in the wing of a bird statue at a mausoleum. He argues that this plot device is substantially similar to the protagonists’ discovery in Outer Banks of a clue labeled “For Bird.” But the bird reference in Outer Banks is merely a callback to the nickname John B’s father gave him as a child. The fact that the word “bird” is present in both narratives is entirely innocuous and of no significance in an infringement analysis.
It goes on from there, including where the court looks at the actual main characters of each work, claimed by Wooten to be substantially similar, and concludes:
In sum, the characterization in the novel is in stark contrast to that of the series. The Outer Banks characters are complex, with narratives that cause the viewer to at times sympathize with even the most nefarious individuals. In the novel, on the other hand, the naïve Pennywise twins and their uncle serve as prototypical hero figures while Darwin acts as a classic villain.
Without trying to, the motion to dismiss doubles as something of a literary review, albeit one rather unkind to Wooten's novel.The real point of all of this is that what should be common sense ought also to be better understood among attorneys willing to file copyright lawsuits on behalf of clients: you cannot copyright general ideas, tropes, nor the obvious story elements that grow from either. Treasure hunts are as tropish as they come, frankly, and attempting to silence an entirely unrelated creative work simply because of "avian themes" and the like is nonsensical.

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posted at: 12:00am on 28-May-2021
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