How Licenses Learn

I have posted a new draft essay, How Licenses Learn. It is a joint work with Madiha Zahrah Choksi, a Ph.D. student in Information Science at Cornell Tech, and the paper itself is an extended and enriched version of her seminar paper from my Law of Software course from last spring. We presented it at the Data in Business and Society symposium at Lewis and Clark Law School in September, and the essay is forthcoming in the Lewis and Clark Law Review later this year.

Here is the abstract:

Open-source licenses are infrastructure that collaborative communities inhabit. These licenses don’t just define the legal terms under which members (and outsiders) can use and build on the contributions of others. They also reflect a community’s consensus on the reciprocal obligations that define it as a community. A license is a statement of values, in legally executable form, adapted for daily use. As such, a license must be designed, much as the software and hardware that open-source developers create. Sometimes an existing license is fit to purpose and can be adopted without extensive discussion. However, often the technical and social needs of a community do not precisely map onto existing licenses, or the community itself is divided about the norms a license should enforce. In these cases of breakdown, the community itself must debate and design its license, using the same social processes it uses to debate and design the other infrastructure it relies on, and the final goods it creates.

In this Article, we analyze four case studies of controversy over license design in open-source software and hardware ecosystems. We draw on Stewart Brand’s How Buildings Learn, a study of how physical buildings change over time as they are adapted and repurposed to deal with new circumstances by successive generations of users. Similarly, we describe how open-source licenses are adapted and repurposed by different communities confronting challenges. Debates over license drafting and interpretation are a key mechanism of achieving the necessary consensus for successful collaboration. The resulting licenses are the visible traces of the constant political work that sustains open-source collaboration. Successful licenses, like successful buildings, require ongoing maintenance, and the record of license changes over the years is a history of the communities that have inhabited them.

The paper has been a great pleasure to work on for many reasons. First and foremost is the joy of collaborative work. Madiha has done extensive research on how open-source communities handle both cooperation and conflict, and the stories in How Licenses Learn are just a small fraction of the ones she has studied. Like the communities she studies, Madiha engages with legal issues from the perspective of a well-informed non-lawyer, which helps a lot in understanding what is really going on in arguments over licensing.

Second, this paper was a chance for me to revisit some of the ideas in architectural theory that I have been chewing on since I wrote Regulation by Software in law school nearly 20 years ago. Larry Lessig famously connected software to architecture, and we found the metaphor illuminating in thinking about the ``architecture’’ of software licensing. As always, I hope you enjoy reading this as much as I—as we—enjoyed writing it.