[OPEN-ILS-DOCUMENTATION] Equinox license to DIG

[Mike Rylander]

Bradly,

On Wed, Dec 14, 2011 at 2:49 PM, Bradley M. Kuhn
<bkuhn at sfconservancy.org> wrote:
> [ Note: I'm not a subscriber to
>  <open-ils-documentation at list.georgialibraries.org>, so please Cc
>  <evergreen at sfconservancy.org> and/or <bkuhn at sfconservancy.org> on
>  responses.  Also, it is probably useful to keep Conservancy's General
>  Counsel, <tony at sfconservancy.org> included as well.  Thanks! ]

Since in this email you were responding to the general points made so
far in this thread I'll start my response here, but if I jump around
to other emails I'll be sure to keep the full CC list there for you.

>
> On Wed, Dec 14, 2011 at 11:24:20AM -0500, Jason Etheridge wrote:
>>> For a specific example, see the bottom of
>>> http://www.esilibrary.com/esi/docs/?p=3D771
>
> the bottom of that URL currently reads:
>>> Copyright: 2011 Equinox Software. Available for redistribution with
>>> proper attribution under CC BY-NC-SA 3.0 license.
>
>>> Note: The Documentation Interest Group (DIG) for the Evergreen
>>> Project is granted an overarching and exclusive CC BY-SA 3.0 license
>>> for any Evergreen feature set documentation posted herein. The CC
>>> BY-SA license is only applicable to DIG and only applies to
>>> documentation for Evergreen feature sets.
>
> Dan Scott wrote at 11:59 (EST):
>> Thanks, Jason; I'm going to CC this to the SFC to ask whether that
>
> Dan, thanks for bringing Conservancy into the discussion!  This is
> indeed something that we can help with (and should be involved with
> anyway, pursuant to the fiscal sponsorship agreement between Evergreen
> and Conservancy).
>

ESI certainly agrees that licensing of the work published by the
project falls under the purview of the Conservancy, but to be clear,
the licensing in question here is that of ESI copyrighted material.  I
know that's obvious, but I just want to make it clear that ESI has no
desire or intention to hold sway over how the greater community (of
which we, as individuals, are a part), and one of our main goals is to
make sure that the community, embodied by those participating in the
creation of Evergreen (in any capacity) and represented by the SFC, is
the group primarily served by our efforts, in both production and use
of material we create and release as OSS.

>> My primary concern is that that "Documentation Interest Group (DIG)
>> for the Evergreen Project" might not have any status as a legal entity
>> and therefore a license granted to it might be meaningless.
> ...
>> Arguably, it's the SFC as the umbrella non-profit organization for the
>> Evergreen project that has legal standing, so it might be the case
>> that the exception needs to be granted to the SFC.
>
> Both these are important points, and I address them in (2) below.
> However, I believe my issue (0) below is the most salient one and I
> suggest that it be discussed first.
>
> Jason Etheridge wrote at 12:24 (EST):
>>> Granting a license isn't legal advice; it's granting a license.  And
>>> intent should matter.
>
> Licensor intent is indeed often considered by courts and others in
> interpreting a license.  However, given that we're discussing this, I'd
> suggest we discuss the current license grant text, and perhaps come to a
> mutually agreeable resolution on changes to it, rather than merely
> relying on the grant text as written.
>
> To that end, there are three issues that I'd like to raise here:
>
> 0. Could you perhaps tell us what Equinox seeks to accomplish by issuing
>   separate CC-By-NC-SA and CC-By-SA licenses?
>

We can, and I will to the extent that it bears on this discussion, but
I'm personally surprised that the "why do you want to do this" is more
important that the "in what way does this effect Evergreen",
particularly when we've gone out of our way to compromise, with Dan
specifically, by preemptively publishing the explicit license grant to
DIG, even after we made a simple request that someone ask us for the
grant.  This was one of the things discussed in IRC, was requested by
Dan; we agreed to it and immediately made it happen.

Now for the "why", which has been discussed in general terms before,
but can be said more directly.

Equinox is the largest service provider for Evergreen support,
training, hosting, and development.  Nearly everything we do is
released back to the community for free, including documentation,
development, arcane knowledge and expertise.  We don't have those
lovely (evil) proprietary software fees to fall back on.  We make out
living off of our services and we make our services off of our
intellectual property.  In the short term, generally 6 weeks+/- of a
new Evergreen release with new features, our documentation has very
real value to us.  We understand the feature sets for which we write
documentation more than anyone else because we wrote that code and
that documentation.  We have real business value to be gained from
that training revenue. We do, of course, realize that once the release
has been adopted by libraries and DIG has released their
documentation, this time sensitive value to us is significantly
reduced.

Additionally, we also believe that there is value to the community by
keeping vendors with little or no Evergreen experience from taking
this documentation and selling Evergreen services to the community
without understanding that feature or that release.  This can hurt the
community as a whole when people have bad service experiences and then
go publicly complain about open source not being up to snuff.  It's
important to note that the group that frequents this mailing list may
be savvy in this regard, but there are a lot of people out there
looking at open source who don't know which vendors have legitimate
experience and which do not.

Neither of these points are theoretical -- both have grounding in
reality -- but, as I said near the top of the previous thread on this
topic that Dan linked to, I will go no further than that in discussing
specifics.

So, with all of that said, we do have another option if simply having
an CC-BY-NC-SA version of our documentation available to everyone in
the world, while the DIG, for the purpose of releasing
project-official documentation and through the SFC, has a CC-BY-SA, is
more than the community can stomach.  We can simply post our
documentation on our web site and leave it protected by copyright.
Then, either at regular intervals, or when asked for it, or at some
other triggering event, we release a CC-BY-SA licensed copy to DIG for
incorporation into the official project documentation.

Would this be more preferable?  My answer, looking at it from the
perspective of freedom and finding an appropriate balance, is a
resounding "no", because the base documentation is then more tightly
controlled.  But, if the problem is primarily the hot-button issue of
NC, then perhaps it would be better.  I default to freedom, though, so
I'd rather use the more permissive license.

>   Specifically, Jason wrote:
>   >> Equinox really does want DIG--as we all understand DIG--to use
>   >> this documentation without any strings other than CC-BY-SA.  But
>   >> Equinox also wants the NC license in place for anyone other than
>   >> DIG who gets the material directly from the website (as opposed to
>   >> getting it through DIG).
>
>   This confuses me, because I'm trying to figure out what Equinox's
>   enforcement plan is for the NC clause.  Suppose someone takes
>   distribution of the material from Equinox's website.  Either one of
>   two things are true:
>       (a) it's the same material they could receive from the Evergreen
>           project itself, under CC-By-SA, since DIG (see (2) below) can
>           redistribute under CC-By-SA at will.
>
>       (b) the material differs slightly, and includes some copyrighted
>           works that Equinox hasn't licensed to Evergreen.
>
>   Consider (a) first.  Suppose Equinox finds someone using the material
>   commercially, and says: "Stop!  You don't have a license, that stuff
>   was CC-By-NC-SA".  The answer from the would-be violator is simple:
>   "Oh, we got our copy from Evergreen project, licensed to us as
>   CC-By-SA, so we can copy/modify/distribute it commercially".  I don't
>   see what Equinox has actually accomplished in that scenario.

The answer is (a).  But, again, the focus is on the "why", which I
hope I've clarified well enough above, but isn't really pertinent to
finding (or deciding, perhaps, that we have found) a solution that
works for everyone involved.

>
>   >> If, however, the DIG can be the recipient of a license exception, then
>   >> given that the DIG membership is consituted of anyone who adds
>   >> themselves to
>   >> http://www.evergreen-ils.org/dokuwiki/doku.php?id=evergreen-docs:digparticipants,
>   >> in theory anyone could add themselves to that list and apply the
>   >> CC-BY-SA license.
>

This is actually a quote from Dan, not Jason, setting up a straw-man
to show that one could get around the NC license if they just wanted
to stick it to ESI.

However, Equinox hopes that DIG (and others) will respect the process
that it has previously established.  We expect DIG to continue to take
care in their documentation efforts, to vet all documentation (even
ours), test, fix errors, if necessary, and re-publish.  For example,
ESI has had urgent requests for documentation, which we've produced
and provided, that then went through vetting process that lasted
longer than it took for us to complete the documentation as DIG
participants worked to ensure that everything worked as described.

We also understand that some in the community may urge DIG to simply
take the ESI documentation and immediately post it to the DIG web site
as is without due diligence simply to make Equinox's CC-BY-NC-SA moot.
 DIG can certainly do that if they, as a group, choose to do so.  We
would not and, in fact, could not, stop them.  But the motivation
there would be obvious -- or it would be a tacit acknowledgement that
ESI creates documentation without flaws, and that matches the voice
and style that the project wants for the official documentation.

>
>   I hope Equinox can shed some light on their intentions with this
>   licensing structure.
>
> 1. It's contradictory to call CC-By-SA an "exclusive license".
>
>   [ This issue may be moot depending on what discussion of (0) above
>   yields. ]
>
>   The "Note: " text above says that the CC-By-SA license is granted as
>   an "exclusive license".  This is a contradictory statement.  CC-By-SA
>   is absolutely *not* an exclusive license, so calling it such just
>   confuses the matter.
>

Equinox can grant a certain license exclusively to DIG (or DIG for the
EG project/SFC).  This is not unusual for one party to be given a
different license, meaning that license is given to one party while
the rest of the world abides by another.  I think the thing that is
confusing folks is that DIG gets a CC BY-SA license which allows them
to then re-package and re-distribute the documentation as CC BY-SA.
The exclusivity lies in who Equinox grants that privilege to, not in
the license itself.

> 2. Licensing for Evergreen comes via Conservancy, not DIG.
>
>   [ This issue may be moot depending on what discussion of (0) above
>   yields. ]
>
>   While Conservancy interprets the intent of the existing license text
>   above to mean that DIG -- and therefore by extension Evergreen -- and
>   therefore by extension Conservancy itself -- is the ongoing recipient
>   of the CC-By-SA license for any material with that "Note: " attached,
>   Dan is correct that it's confusing to grant a special license to an
>   entity that isn't a real legal entity.  Therefore, we'd suggest that
>   if the text above is to be used, it should have the following edits:
>      s/The Documentation Interest Group (DIG) for the Evergreen Project/The Software Freedom Conservancy, Inc. (Conservancy), home of the Evergreen Project/
>      s/DIG/Conservancy/g


We will happily change this to whatever the most appropriate wording
is.  How about this:

Note: The The Software Freedom Conservancy, Inc. (Conservancy), home
of the Evergreen Project, is exclusively granted an overarching CC
BY-SA 3.0 license for any Evergreen feature set documentation posted
herein. The CC BY-SA license is only applicable to Conservancy and
only applies to documentation for Evergreen feature sets.

-------------

Thanks, Bradly, for your attention on this.  Our goal is simply to
find something that works well for everyone involved.  We feel like
we've done what's been asked of us, and we're happy to continue
working on this.

Dan's voice is important, of course, and he advocates well for
software freedom, but please remember that ESI is for software freedom
as well.  I don't think anything in our past could be construed as
anti-freedom, and indeed we are attempting to provide the most freedom
possible within the bounds of what we see as reasonable in terms of
protecting ourselves and the community.

One last note.  I see that DIG has already begun incorporating some of
our documentation, since this license discussion began, into the
official repository and I would be interested to hear the opinions
those working on the docs right now, as it seems that we may have de
facto already struck an appropriate balance.

Again, thanks!

-- 
Mike Rylander
 | Director of Research and Development
 | Equinox Software, Inc. / Your Library's Guide to Open Source
 | phone:  1-877-OPEN-ILS (673-6457)
 | email:  miker at esilibrary.com
 | web:  http://www.esilibrary.com