Luis Enríquez from Ecuador recently contacted us to share this text on what he calls “Smart Copyright Licenses” (A CopyFair venture). Luís informs us that some projects are already using these early drafts.
THE COPYRIGHT OF THE COMMONS HAS TO BECOME DYNAMIC! This is a very challenging affirmation, and I will explain why.
The law is supposed to regulate all human activities, or at least that is what we learn in law school. Despite our legal tradition (common law, or roman law), we always try to fit new human actions into our predefined rules.
A good example is copyright law. The holy grail of Copyright law is still the Bern Convention from 1886, and revised in 1970. Of course, we didn’t have computers or Internet in 1886. However, in 1996 the WIPO copyright treaty assigned the same protection of literary works to software and databases
In my opinion, this was a wrong and lazy choice. Software should not be protected as literary works, because its environmental nature is totally different. Just think about the time of protection of 70 years after the death of the creator. This time of protection may be suitable for a song, or a film. But it is ridiculous for software.
The copyright license has become the way out. The rise of generic purpose public licenses (such as the GPL, MPL, MIT, BSD licenses) happened because they provide the possibility of establishing permissions and obligations for the users, out of the boundaries of the “all rights reserved” copyright law tradition.
Nevertheless, Generic purpose public licenses are still STATIC, reproducing the static nature of copyright law. Software industry adopted the same copyright version methodology of literary works. So you could have the first version of a software released in 2000; the second version released in 2003, and so on.
This version methodology freezes (or hides to the public) development for a period of time, and it is suitable for closed source software, specially when the production and distribution of software is controlled by an enterprise, but not for community projects.
Let’s take a look of what is going on in open source software community projects today. Open source software projects are hosted in open repositories such as GitHub or Bitbucket. Many freelance developers will join the project, making new commits, adding new code, fixing bugs, building libraries, and so on. Users can download the source of the software at any time, as it is always available to download.
This dynamic model of software production brings new legal paradigms such as:
1. Who are the copyright holders? New copyright holders may appear at any time, without a hiring relationship with the former ones.
2. Lack of legal personality. Many Open source software projects don’t own a legal personality. Therefore, in the light of most copyright laws, each contributor still owns his source code contribution.
3. Lack of flexibility. As production is always under development, certain conditions can change, and not be compatible with the original license terms. E.g. New source code license terms are not compatible with the project’s license.
4. How to split retributions, or donations among copyright holders? As there is not hiring relationship, it is FAIR that each contributor receives a part of the global retribution.
A few months ago, I cooperated with an open source developer and bitcoin enthusiast named Dawid Ci??arkiewicz. He helped me to understand the problems of software community projects, today. We worked together on a project named CopyFair Corp, and as a result, we got the CopyFair Software License (CFSL). The first license draft can be read here:
Our challenge was to create a Retribution based license, for dynamic software production. The CFSL follows the Commons Based Reciprocity guidelines developed by Michael Bauwens, and other well known commoners. However, In the process of writing the CFSL, we got a promising idea, SMART COPYRIGHT LICENSES. The polymorphic nature of the CopyFair, and the CFSL definitely goes in that direction.
A smart Copyright license should automatically resolve the problems of software community projects. It will be updated every time a new commit is made at the software repository. It can operate and be stored in the blockchain, just like smart contracts in Ethereum.
These are some advantages:
1. Polymorphic features. A license can adapt itself to different situations. It could apply some terms for commercial uses and noncommercial uses, while detecting how the software is being exploited. The license is integrated within the source code.
2. Flexibility. If some parameters of the software change, the license will also change. E.g. A new copyright holder contributes 2% of the source code. The license will immediately get an update, adding him as a contributor, and mapping his percentage of retribution.
3. Customization. Developers could adapt the license conditions to bypass environmental restrictions. E.g. Retribution is set in BTC in the countries that BTC is legal, and only if a BTC is => than $200. Otherwise retribution could be paid in Ethers or dollars.
As we can see, it is a very challenging idea. However, the commons transition requires dynamic legal tools in order to adapt the old fashion copyright laws to distributed systems. At this point, it seems very difficult to update copyright law, and that is why we must take the best out of the only legal tool that we have left, THE LICENSE.