Why I publish in the public domain
(Further development from my somewhat juvenile flailing in this direction here.)
“We must die as egos and be born again in the swarm, not separate and self-hypnotized, but individual and related.” —Henry Miller, Sexus
Why care about licenses?
I spend entirely too much time thinking about software — and other creative work — licensing, particularly from an ethical perspective. The reason I do this is because I think licenses are a very interesting intersection of a rigorous legal instrument, a political manifesto, and a widely understood symbol of a school of thought on intellectual property.
A license is, at least ostensibly, supposed to be an effective, rigorous legal instrument — one that is actually self-consistent, has clear definitions of terms, directly enumerates rights and requirements, and is actually enforceable. This introduces technical strictures and requirements not traditionally present in a manifesto on intellectual property or anything else, which can lead to clearer thinking and clearer definitions.
At the same time, a license is also a statement about your beliefs regarding how creative works should be treated, how they should function in society with regards to copyright and intellectual property. I especially tend to think of licenses as more political manifestos than pragmatic legal instruments not just because of the culture that has grown up around them — especially the GPL — but because the vast majority of people do not have the legal acumen, resources, time, or often even the desire to actually enforce their license, especially when it comes to a big player violating it. So most of the time, what else could it be but a statement of belief and ethics, a request on the part of the creator about how to treat their work? And yet, because of their nominal purpose, licenses remain a manifesto that is forced to also be a consistent and precise, clearly defined, and enforceable piece of machinery.
Finally, these instruments also have defined, short, visible names, indicating the various schools of thought about intellectual property they descend from and represent, and which variant. They become symbols — compact, expressive ways of specifying your approach to things. And since these are well-defined, well-understood instruments very commonly attached to software, many tools like GitHub automatically detect what license you're using and show that name under the project name and in the sidebar. Not only that, they will make license names clickable, showing not just the license text, but a readable, accessible "allowed and not allowed" list of the rights and requirements of the license, as well as a summary of what the license is, its history, and what organization created it so you can learn more. This becomes a way of affixing a prominently displayed and easily recognized and understood manifesto about your beliefs on IP to your project.
Thus, just as art is often improved by the constraints of a genre or medium, discussions around copyright are clarified by the dual nature of licenses. They must be rational, consistent legal instruments, yet they also serve as distinct political statements, and it is through using licenses as a sort of concrete way to think through my beliefs and their implications that my views have changed over time on what license to use. I started out doing the GPL on everything; then it was the MPL, and then — for a brief period of time — I tried to write my own license, called The Noosphere Sphere Public License (NPL). Eventually, I settled on 0BSD. As you may notice by that transition, I have sort of gone with weaker and weaker copyleft systems over time, until finally arriving at literally a public domain equivalent license.
I think it is useful to talk about the reasons why I did this.
The original copyleft arguments that convinced me
I was initially most sympathetic to copyleft — seeing those who used permissive or public domain equivalent licenses as "corporate shills" — for two primary reasons.
First, I started out with the belief that the open source world—the world of open source code, projects, and programs—is a form of commons, and corporate use of open source without contribution upstream was an enclosure of that commons, one which copyleft offered to prevent. In my view then, everyone works on the open source "common land" — improves it, contributes to it, maintains it — and in return, everyone is allowed to build a living off a small part of it, as long as others can share whatever they're using to build their living, without borders separating the work one person does from the work another does. (Everyone benefits when someone working on FFMpeg improves it, and anyone else can come and help improve it if they want.). But when a corporation comes in and benefits from an open source tool or library, then improves their version of it without contributing those improvements back to the commons, they have essentially enclosed a piece of the commons: they have built something on a plot of land in the commons but kept it their own; they have not shared it back with everyone else.
The second reason I was sympathetic to copyleft was because of my deep-seated stance against intellectual property.
It's okay to keep something private on your own machine or in your notebook, to send it back and forth in end-to-end encrypted chats, or in other ways just… not publish it publicly — I don't think it would be beneficial to individuality, autonomy, and society as a whole were people forced to reveal their every private thought and project to everyone. Nevertheless, once something has been put out into the world, it must be considered public domain, because digital information, ideas, expressions of ideas — these things are non-rivalrous: if someone gains a copy, you do not lose a copy, so they cannot actually take anything away from you — they cannot steal it. Anything you have putatively lost is purely hypothetical: "if they hadn't pirated this, I would have gotten some of their money." That is very different from "They took something away from me that I already had," and trying to use concrete, non-hypothetical legal, physical, technical, or even social enforcement on people in actuality, to protect your rights to something in an alternate, hypothetical timeline, is fundamentally disproportional. It also fundamentally detracts from the deterritorialized flows of information and access that the noosphere represents. To take something that is inherently nearly free — free to creatively combine, fork, and move from one mind and part of the globe to another — and try to lock it down with the same kind of propertarian, territorialized material borders as real-life land is, to me, a fundamental travesty.
(Note: this is different for personal information which might materially harm you being made public; but that's a completely separate subject anyway, since personal information is not defended via copyright law even now, and because while the free release and sharing of an idea, artistic work, or program only harms you counterfactually, the free release of your credit card information, home address, or other information can directly lead to concrete non-counterfactual harms.)
Given this opposition to copyright, I thought copyleft was a way to fight back against it: the idea of copyleft to me was not just that you could prevent corporations and other private entities from enclosing the commons, but that by the copyleft mechanism, you could also contribute to the viral elimination of copyright itself! At least to my mind at the time, copyleft released your code to the public domain with the primary condition that anything based on your work also becomes public domain — what could seem like a more natural fit for an accelerationist? Crucially, it felt like a natural fit despite me being an anarchist because, although it uses the state power behind copyright law, it is only used that power to undercut other people's ability to wield that power against others, not to compel any positive action, or restrict any action that would have existed without the state anyway, and I think that is pretty much the only acceptable way to actually use state power: to use it to prevent other people from using it to hurt others. (Examples include the law passed in New Mexico that bans the government itself from passing further laws attacking trans people, or federal laws that prevent states from passing laws that would enforce acts of state power and violence on people.)
The erosion of copyleft's case
As a tool against copyright
Regarding that second point, the more I thought about it, the more I realized that no copyleft license actually works like this. Take the GPL for instance: it doesn't just say "you cannot wield copyright law against others with something you built off my code." It also stipulates that you have to proactively share your code. That's enforcing a positive action on someone using state power, not just preventing them from using state power themselves! That's a very different ethical proposition, and one I'm fundamentally against, but it goes further. Most copyleft licenses say not only that your consumers have to proactively share your code back upstream, but that they have to do all these other things, like anti-tivoization clauses, attribution, and so on.
Copyleft, therefore, isn't simply using copyright to destroy itself, but using it to enforce other political agendas. I think the Free Software Foundation's idea of the four fundamental user rights are decent — though perhaps a bit outdated and misguided in assuming a lot more technical acumen than most people have — and in the aggregate, I think they would be useful to have, but I do not think enforcing them by means of copyright law, essentially using copyright law to create regulations you would like to see the state enforce, is acceptable for me. Even the MPL is like this to a degree: its limits on which code is affected are much less severe, so there is less of a chance of enforcing its ideology on others, but if they modify your code, they are still forced to proactively share and attribute.
More fundamentally, however clever copyleft's use of copyright against itself is, it still fundamentally requires strict copyright laws and the enforcement of them to work: any loosening of copyright, any redefinition or shrinking of what is defined as a derivative work, any deterritorialization of large amounts of information, actually threatens copyleft in the near term even if it serves copyleft's long term goals.
We see this with the response free software proponents have had toward AI being trained on open source code: not a condemnation of the hypocrisy on the part of AI companies of treating information as free-flowing when it comes to training but then turning around and trying to attack people releasing or distilling their models, not a calling for all of the data open weight models were trained on to be able to be released alongside their weights without repercussion — either of which would be calls for deterritorialization — but instead a call for more, stronger IP through the restriction of the definition of fair use (something even Creative Commons and the EFF both oppose) and the extension of what counts as a derivative work, because it threatens the authority of copyleft. In essence, by becoming dependent on the very thing they seemed to fight against, copyleft licenses have become a part of upholding that system. Can they truly be revolutionary, be a stand against intellectual property, if they depend on it to work?
Ultimately, my dedication to fighting intellectual property stems from the strong belief that information is so free to reproduce, so plentiful, so utterly useful, and so enriching of human existence that it should be completely free-flowing for everyone. Even without attribution! It should be a completely de-territorialized space because that is what it is by default: ideas do not come with owners' names attached and one person having them does not take them from another — ideas are not land. We should not be carving it up and pinning names to it to prevent people from using it, recombining it, and doing anything they want with it. That is a travesty.
And the striation of code as a space, the splitting and mapping of it into separate fiefdoms with their own rules and territories, is affected by copyleft.
Yet, I think that even people who disagree on these things should be able to share code — that open source should be schizophrenic flows of code and information deterritorialized, decoded, free to improvise and combine without concern for anything but a narrow-waist protocol of software development, where all you need to know is the quality and applicability of someone's code, and nothing else instead of becoming a free for all of petty primate politics and techno-call-out-culture (like people trying to callout various open source projects today for not being anti-AI enough). Copyleft prevents this: now developers have to worry about the legal intricacies of what importing someone's library might force them to do or not do, and reject integrating with things on that basis.
Worse, even for those who are willing to use a copyleft license, thanks to the complex and restrictive requirements of copyleft licenses, now that multiple exist (GPLv2, GPLv3, LGPL, AGPL, MPL, and probably more), it's no longer enough to say or know something "is copyleft" or even "is GPL," you have to know exactly what and how, and navigate a complex legal minefield, and some code may simply not be combinable anymore. Far from protecting a free flowing, endlessly combining and forking commons, copyleft, due to its strictures, has essentially divided it up — doing exactly what it was meant to prevent — by making some code incompatible with other code unless communicated with across network or dynamic library boundaries (and sometimes not even then).
After growing distant from copyleft ideology, I gravitated toward permissive licenses — only to realize that even permissive licenses introduce a territorializing effect. They are still obsessed with propagating and tracking the provenance of code, through attributions and carrying the text of licenses around forever, and that this imposes its own burdens on the free flow of digital information. As Rob Landley, the creator of the 0BSD, points out, permissive licenses cause a "stuttering problem" thanks to requiring the license text and attribution to be copied and displayed everywhere the code is (despite having no legal weight once someone copies or forks the code, in terms of rights and duties, since they're permissive), leading to hundreds of pages of nearly identical license blobs that have to be automatically generated by script, for no good reason.
Can something truly be in line with my values, when it does all of that? When it works that way? Copyleft, more and more, has begun to seem like a reterritorializing force, attempting to claw back and control information — how people use it, who it's attributed to, what you get out of it —; a component of the reflexive Human Security System trying to humanize the inhuman, totally alien to our Savanna-evolved brains, flows of information in the digital and conceptual worlds. It feels like huddling in a mass, trying to grab everything we can and hold onto it, instead of leaning into the flows and seeing where they take us.
As a tool to prevent enclosure
I also began to doubt that private companies or individuals benefiting from open source code, and upgrading it but not sharing those upgrades, was actually an enclosure of any kind of commons. A crucial, necessary condition of the enclosure of the commons — perhaps the most important feature — was that the enclosure didn't just benefit someone without giving a cut of the benefits back, it was actively removing something from the commons, so that those who depended on it before couldn't access it without paying rent or asking permission. That is very different from how the open source commons works: if a private company uses an open source project, no one else loses the slightest bit of access to it whatsoever. No one has to pay them rent or leave.
Even in the physical material world, I would not want to live in a world where anything you built with aid of the commons — without enclosing it or using it up — was automatically considered something you had to share with everyone else. Just because you could only make it in virtue of standing on the shoulders of giants does not mean it is not yours, and although I am against holding actual property rights over ideas once they are released, I do think that by default people should not be forced to share anything they create. There is a distinction between being able to make a choice about whether to share something and, once it has been shared, trying to control its flow. One is a personal choice you are making, the other is you going out and dominating others and trying to control the choices they are making.
So, when it comes to open source and the enclosure of the commons, I do not think a private company using or privately improving an open source project hurts anyone or encloses the commons in any way. It removes counterfactual benefits from us, in the same way that pirating a book only detracts from the counterfactual money. If they had not pirated it, they would have paid me. But ultimately, with the idea that proprietary improvements constitute an enclosure overturned, and with the idea that people should not be forced by the state to take proactive action to share work they built on the shoulders of giants, the justification for copyleft is completely shattered for me.
Conclusion
All of this is why I have chosen to stick to the 0BSD for all of my work — creative and software — in the future. With the undercutting in my mind of the ethical arguments for copyleft, and the introduction of ethical arguments against it, as well as the fact that the pure public domain better represents my Deleuzean views on intellectual property, it just makes sense.
In response to all this, the most common point to raise is one of labor economics. What does all this philosophy and ontology matter, you might ask, if it undercuts the sustainability of open source development and causes maintainer burnout? You can't have a free flow of information when nobody is creating information in the first place. I think a lot of the defense of copyleft essentially comes from that question, even if it's also surrounded with other discussions.
However, historically we have seen that even strong copyleft licenses like the AGPL don't really solve this. If the current licensing regime, or even part of it, solved this problem, then maintainer burnout wouldn't be a nearly universal open source epidemic, now would it?
And that's because, as legal and ideological instruments, they just aren't designed to. They may help slightly, as a side-effect, but even having big corporations and other downstream users of your software doesn't always help with maintainer burnout and project sustainability, since you still need the time and energy to oversee and merge PRs; and many of the projects that get the most upstream contributions are permissively licensed anyway.
What we need to solve these crises in open source is not to try to jerry-rig legal and ideological instruments designed for completely disjoint purposes to protect our compensation; we need new, purpose-built tools and ways of doing things. This could start simple, with a change in our culture as an open source community: getting used to actually buying the software we use, even though it's open source, and being okay with, for instance, pre-compiled binaries or packages costing money, as well as being willing to fund the projects and programmers who make what we use. Ultimately, however, it could take us further, to an even better place: if what you care about is getting compensated for doing labor, then the best way to do it is to simply require money to do labor: refuse to fix bugs or implement features unless someone pays you to do it. Instead of feeling overwhelmed by bug reports, feature requests, and issues, realize that nobody is owed new labor from you, even if the product of the labor you've already done is infinitely replicable at zero marginal cost or effort from you and thus free to everyone, and thus that you aren't obligated to satisfy any of those requests without being fairly compensated.
I think ceasing to see copyleft as a way of fighting labor battles could free us a lot, both to try new things to get compensated for what we do, and to use other licenses, which in turn could free our ideas from the guagmires of licensing they've been contained by. There's a reason why most programmers today license with at least MIT, and groan when they have to deal with the GPL. It's not that they're corporate drones; it's that they've instinctively realized that the GPL and licenses like it have truly become an impediment to the freedom of software, in their quest to protect the freedoms of their idea of the user.