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

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 Here

While 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 Changed

What 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 Now

This 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