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Sunday, August 14, 2011

Project Harmony Considered Harmful - Bradley M. Kuhn ( Brad ) ( bkuhn )

Project Harmony Considered Harmful

Thursday 7 July 2011 by Bradley M. Kuhn

Much advertising is designed to convince us to buy or use of something that we don't need. When I hear someone droning on about some new, wonderful thing, I have to worry that these folks are actually trying to market something to me.

Very soon, you're likely to see a marketing blitz for this thing called Project Harmony (which just released its 1.0 version of document templates). Even the name itself is marketing: it's not actually descriptive, but is so named to market a “good feeling” about the project before even knowing what it is. (It's also got serious namespace collision, including with a project already in the software freedom community.

Project Harmony markets itself as fixing something that our community doesn't really consider broken. Project Harmony is a set of document templates, primarily promulgated and mostly drafted by corporate lawyers, that entice developers to give control of their software work over to companies.

My analysis below is primarily about how these agreements are problematic for individual developers. An analysis of the agreements in light of companies or organizations using them between each other may have the same or different conclusions; I just haven't done that analysis in detail so I don't know what the outcome is.

[ BTW, I'm aware that I've failed to provide a TL;DR version of this article. I tried twice to write one and ultimately decided that I can't. Simply put, these issues are complex, and I had to draw on a decade of software freedom licensing, policy, and organizational knowledge to fully articulate what's wrong with the Project Harmony agreements. I realize that sounds like a It was hard to write — it should be hard to read justification, but I just don't know how to summarize these Gordian problems in a pithy way. I nevertheless hope developers will take the time to read this before they sign a Project Harmony agreement, or — indeed — any CLA or ©AA. ]

Copyright Assignment That Lacks Real Assurances

First of all, about half of Project Harmony is copyright assignment agreements ( ©AAs). Assigning copyright completely gives the work over to someone else. Once the ©AA is signed, the work ceases to belong to the assignor. It's as if that work was done by the assignee. There is admittedly some value to copyright assignment, particularly if developers want to ensure that the GPL or other copyleft is enforced on their work and they don't have time to do it themselves. (Although developers can also designate an enforcement agent to do that on their behalf even if they don't assign copyright, so even that necessity is limited.)

One must immensely trust an assignee organization. Personally, I've only ever assigned some of my copyrights to one organization in my life: the Free Software Foundation, because FSF is the only organization I ever encountered that is institutionally committed to DTRT'ing with copyrights in a manner similar to my personal moral beliefs.

First of all, as I've written about before, FSF's ©AA make all sorts of promises back to the assignor. Second, FSF is institutionally committed to the GPL and enforcing GPL in a way that advances FSF's non-profit advocacy mission for software freedom. All of this activity fits my moral principles, so I've been willing to sign FSF's ©AAs.

Yet, I've nevertheless met many developers who refuse to sign FSF's ©AAs. While many of such developers like the GPL, they don't necessarily agree with the FSF's moral positions. Indeed, in many cases, developers are completely opposed to assigning copyright to anyone, FSF or otherwise. For example, Linus Torvalds, founder of Linux, has often stated on record that he never wanted to do copyright assignments, for several reasons: [he] think[s] they are nasty and wrong personally, and [he]'d hate all the paperwork, and [he] thinks it would actually detract from the development model.

Obviously, my position is not as radical as Linus'; I do think ©AAs can sometimes be appropriate. But, I also believe that developers should never assign copyright to a company or to an organization whose moral philosophy doesn't fit well with their own.

FSF, for its part, spells out its moral position in its ©AA itself. As I've mentioned elsewhere, and as Groklaw recently covered in detail, FSF's ©AA makes various legally binding promises to developers who sign it. Meanwhile, Project Harmony's ©AAs, while they put forward a few options that look vaguely acceptable (although they have problems of their own discussed below), make no such promises mandatory. I have often times pointed Harmony's drafters to the terms that FSF has proposed should be mandatory in any for-profit company's ©AA, but Harmony's drafters have refused to incorporate these assurances as a required part of Harmony's agreements. (Note that such assurances would still be required for the CLA options as well; see below for details why.)

Regarding ©AAs, I'd like to note finally that FSF does not require ©AAs for all GNU packages. This confusion is so common that I'd like to draw attention to it, even thought it's only a tangential point in this context. FSF's ©AA is only mandatory, to my knowledge, on those GNU packages where either (a) FSF employees developed the first versions or (b) the original developers themselves asked to assign copyright to FSF, upon their project joining GNU. In all other cases, FSF assignment is optional. Some GNU projects, such as GNOME, have their own positions regarding ©AAs that differ radically from FSF's. I seriously doubt that companies who adopt Project Harmony's agreement will ever be as flexible on copyright assignment as FSF, nor will any of the possible Project Harmony options be acceptable to GNOME's existing policy.

Giving Away Rights to Give Companies Warm Fuzzies?

Project Harmony, however, claims that the important part isn't its ©AA, but its Contributor License Agreement (CLA). To briefly consider the history of Free Software CLAs, note that the Apache CLA was likely the first CLA used in the Free Software community. Apache Software Foundation has always been heavily influenced by IBM and other companies, and such companies have generally sought the “warm fuzzies” of getting every contributor to formally assent to a complex legal document that asserts various assurances about the code and gives certain powers to the company.

The main point of a CLA (and a somewhat valid one) is to ensure that the developers have verified their right to contribute the code under the specified copyright license. Both the Apache CLA and Project Harmony's CLA go to great length and verbosity to require developers to agree that they know the contribution is theirs. In fact, if a developer signs one of these CLA's, the developer makes a formal contract with the entity (usually a for-profit company) that the developer knows for sure that the contribution is licensed under the specified license. The developer then takes on all liability if that fact is in any way incorrect or in dispute!

Of course, shifting away all liability about the origins of the code is a great big “warm fuzzy” for the company's lawyers. Those lawyers know that they can now easily sue an individual developer for breach of contract if the developer was wrong about the code. If the company redistributes some developer's code and ends up in an infringement suit where the company has to pay millions of dollars, they can easily come back and sue the developer⁰. The company would argue in court that the developer breached the CLA. If this possible outcome doesn't immediately worry you as an individual developer signing a Project Harmony CLA for your FLOSS contribution, it should.

“Choice of Law” & Contractual Arrangement Muddies Copyright Claims

Apache's CLA doesn't have a choice of law clause, which is preferable in my opinion. Most lawyers just love a “choice of law” clause for various reasons. The biggest reason is that it means the rules that apply to the agreement are the ones with which the lawyers are most familiar, and the jurisdiction for disputes will be the local jurisdiction of the company, not of the developer. In addition, lawyers often pick particular jurisdictions that are very favorable to their client and not as favorable to the other signers.

Unfortunately, all of Project Harmony's drafts include a “choice of law” clause¹. I expect that the drafters will argue in response that the jurisdiction is a configuration variable. However, the problem is that the company decides the binding of that variable, which almost always won't be the binding that an individual developer prefers. The term will likely be non-negotiable at that point, even though it was configurable in the template.

Not only that, but imagine a much more likely scenario about the CLA: the company fails to use the outbound license they promised. For example, suppose they promised the developers it'd be AGPL'd forever (although, no such option actually exists in Project Harmony, as described below!), but then the company releases proprietarized versions. The developers who signed the CLA are still copyright holders, so they can enforce under copyright law, which, by itself, would allow the developers to enforce under the laws in whatever jurisdiction suits them (assuming the infringement is happening in that jurisdiction, of course).

However, by signing a CLA with a “choice of law” clause, the developers agreed to whatever jurisdiction is stated in that CLA. The CLA has now turned what would otherwise be a mundane copyright enforcement action operating purely under the developer's local copyright law into a contract dispute between the developers and the company under the chosen jurisdiction's laws. Obviously that agreement might include AGPL and/or GPL by reference, but the claim of copyright infringement due to violation of GPL is now muddied by the CLA contract that the developers signed, wherein the developers granted some rights and permission beyond GPL to the company.

Even worse, if the developer does bring action in a their own jurisdiction, their own jurisdiction is forced to interpret the laws of another place. This leads to highly variable and confusing results.

Problems for Individual Copyright Enforcement Against Third-Parties

Furthermore, even though individual developers still hold the copyrights, the Project Harmony CLAs grant many transferable rights and permissions to the CLA recipient (again, usually a company). Even if the reasons for requiring that were noble, it introduces a bundle of extra permissions that can be passed along to other entities.

Suddenly, what was once a simple copyright enforcement action for a developer discovering a copyleft violation becomes a question: Did this violating entity somehow receive special permissions from the CLA-collecting entity? Violators will quickly become aware of this defense. While the defense may not have merit (i.e., the CLA recipient may not even know the violator), it introduces confusion. Most legal proceedings involving software are already confusing enough for courts due to the complex technology involved. Adding something like this will just cause trouble and delays, further taxing our already minimally funded community copyleft enforcement efforts.

Inbound=Outbound Is All You Need

Meanwhile, the whole CLA question actually is but one fundamental consideration: Do we need this? Project Harmony's answer is clear: its proponents claim that there is mass confusion about CLAs and no standardization, and therefore Project Harmony must give a standard set of agreements that embody all the options that are typically used.

Yet, Project Harmony has purposely refused to offer the simplest and most popular option of all, which my colleague Richard Fontana (a lawyer at Red Hat who also opposes Project Harmony) last year dubbed inbound=outbound. Specifically, the default agreement in the overwhelming majority of FLOSS projects is simply this: each contributor agrees to license each contribution using the project's specified copyright license (or a license compatible with the project's license).

No matter what way you dice Project Harmony, the other contractual problems described above make true inbound=outbound impossible because the CLA recipient is never actually bound formally by the project's license itself. Meanwhile, even under its best configuration, Project Harmony can't adequately approximate inbound=outbound. Specifically, Project Harmony attempts to limit outbound licensing with its § 2.3 (called Outbound License). However, all the copyleft versions of this template include a clause that say: We [the CLA recipient] agree to license the Contribution … under terms of the … licenses which We are using on the Submission Date for the Material. Yet, there is no way for the contributor to reliably verify what licenses are in use privately by the entity receiving the CLA. If the entity is already engaged in, for example, a proprietary relicensing business model at the Submission Date, then the contributor grants permission for such relicensing on the new contribution, even if the rest of § 2.3 promises copyleft. This is not a hypothetical: there have been many cases where it was unclear whether or not a company was engaged in proprietary relicensing, and then later it was discovered that they had been privately doing so for years. As written, therefore, every configuration of Project Harmony's § 2.3 is useless to prevent proprietarization.

Even if that bug were fixed, the closest Project Harmony gets to inbound=outbound is restricting the CLA version to “FSF's list of ‘recommended copyleft licenses’”. However, this category makes no distinction between the AGPL and GPL, and furthermore ultimately grants FSF power over relicensing (as FSF can change its list of recommended copylefts at will). If the contributors are serious about the AGPL, then Project Harmony cannot assure their changes stay AGPL'd. Furthermore, contributors must trust the FSF for perpetuity, even more than already needed in the -or-later options in the existing FSF-authored licenses. I'm all for trusting the FSF myself in most cases. However, because I prefer plain AGPLv3-or-later for my code, Project Harmony is completely unable to accommodate my licensing preferences to even approximate an AGPL version of inbound=outbound (even if I ignored the numerous problems already discussed).

Meanwhile, the normal, mundane, and already widely used inbound=outbound practice is simple, effective, and doesn't mix in complicated contract disputes and control structures with the project's governance. In essence, for most FLOSS projects, the copyright license of the project serves as the Constitution of the project, and doesn't mix in any other complications. Project Harmony seeks to give warm fuzzies to lawyers at the expense of offloading liability, annoyance, and extra hoop-jumping onto developers.

Linux Hackers Ingeniously Trailblazed inbound=outbound

Almost exactly 10 years ago today, I recall distinctly attending the USENIX 2001 Linux BoF session. At that session, Ted Ts'o and I had a rather lively debate; I claimed that FSF's ©AA assured legal certainty of the GNU codebase, but that Linux had no such assurance. (BTW, even I was confused in those days and thought all GNU packages required FSF's ©AA.) Ted explained, in his usual clear and bright manner, that such heavy-handed methods shouldn't be needed to give legal certainty to the GPL and that the Linux community wanted to find an alternative.

I walked away skeptically shaking my head. I remember thinking: Ted just doesn't get it. But I was wrong; he did get it. In fact, many of the core Linux developers did. Three years to the month after that public conversation with Ted, the Developer's Certificate of Origin (DCO) became the official required way to handle the “CLA issue” for Linux and it remains the policy of Linux today. (See item 12 in Linux's Documentation/SubmittingPatches file.)

The DCO, in fact, is the only CLA any FLOSS project ever needs! It implements inbound=outbound in a simple and straightforward way, without giving special powers over to any particular company or entity. Developers keep their own copyright and they unilaterally attest to their right to contribute and the license of the contribution. (Developers can even sign a ©AA with some other entity, such as the FSF, if they wish.) The DCO also gives a simple methodology (i.e., the Signed-off-by: tag) for developers to so attest.

I admit that I once scoffed at the (what I then considered naïve) simplicity of the DCO when compared to FSF's ©AA. Yet, I've been since convinced that the Linux DCO clearly accomplishes the primary job and simultaneously fits how most developers like to work. ©AA's have their place, particularly when the developers find a trusted organization that aligns with their personal moral code and will enforce copyleft for them. However, for CLAs, the Linux DCO gets the important job done and tosses aside the pointless and pro-corporate stuff.

Frankly, if I have to choose between making things easy for developers and making them easy for corporate lawyers, I'm going to chose the former every time: developers actually write the code; while, most of the time, company's legal departments just get in our way. The FLOSS community needs just enough CYA stuff to get by; the DCO shows what's actually necessary, as opposed to what corporate attorneys wish they could get developers to do.

What about Relicensing?

Admittedly, Linux's DCO does not allow for relicensing wholesale of the code by some single entity; it's indeed the reason a Linux switch to GPLv3 will be an arduous task of public processes to ensure permission to make the change. However, it's important to note that the Linux culture believes in GPLv2-only as a moral foundation and principle of their community. It's not a principle I espouse; most of my readers know that my preferred software license is AGPLv3-or-later. However, that's the point here: inbound=outbound is the way a FLOSS community implements their morality; Project Harmony seeks to remove community license decision-making from most projects.

Meanwhile, I'm all for the “-or-later” brand of relicensing permission; GPL, LGPL and AGPL have left this as an option for community choice since GPLv1 was published in late 1980s. Projects declare themselves GPLv2-or-later or LGPLv3-or-later, or even (GPLv1-or-later|Artistic) (ala Perl 5) to identify their culture and relicensing permissions. While it would sometimes be nice to have a broad post-hoc relicensing authority, the price for that's expensive: abandonment of community clarity regarding what terms define their software development culture.

An Anti-Strong-Copyleft Bias?

Even worse, Project Harmony remains biased against some of the more fine-grained versions of copyleft culture. For example, Allison Randal, who is heavily involved with Project Harmony, argued on Linux Outlaws Episode 204 that Most developers who contribute under a copyleft license — they'd be happy with any copyleft license — AGPL, GPL, LGPL. Yet there are well stated reasons why developers might pick GPL rather than LGPL. Thus, giving a for-profit company (or non-profit that doesn't necessarily share the developers' values) unilateral decision-making power to relicense GPL'd works under LGPL or other weak copyleft licenses is ludicrous.

In its 1.0 release, Project Harmony attempted to add a “strong copyleft only” option. It doesn't actually work, of course, for the various reasons discussed in detail above. But even so, this solution is just one option among many, and is not required as a default when a project is otherwise copylefted.

Finally, it's important to realize that the GPLv3, AGPLv3, and LGPLv3 already offer a “proxy option”; projects can name someone to decide the -or-later question at a later time. So, for those projects that use any of the set { LGPLv3-only, AGPLv3-only, GPLv3-only, GPLv2-or-later, GPLv1-or-later, or LGPLv2.1-or-later }, the developers already have mechanisms to move to later versions of the license with ease — by specifying a proxy. There is no need for a CLA to accomplish that task in the GPL family of licenses, unless the goal is to erode stronger copylefts into weaker copylefts.

This is No Creative Commons, But Even If It Were, Is It Worth Emulation?

Project Harmony's proponents love to compare the project to Creative Commons, but the comparison isn't particularly apt. Furthermore, I'm not convinced the FLOSS community should emulate the CC license suite wholesale, as some of the aspects of the CC structure are problematic when imported back into FLOSS licensing.

First of all, Larry Lessig (who is widely considered a visionary) started the CC licensing suite to bootstrap a Free Culture movement that modeled on the software freedom movement (which he spent a decade studying). However, Lessig made some moral compromises in an attempt to build a bridge to the “some rights reserved” mentality. As such, many of the CC licenses — notably those that include the non-commercial (NC) or no-derivatives (ND) terms — are considered overly restrictive of freedom and are therefore shunned by Free Culture activists and software freedom advocates alike.

Over nearly decade, such advocates have slowly begun to convince copyright holders to avoid CC's NC and ND options, but CC's own continued promulgation of those options lend them undue legitimacy. Thus, CC and Project Harmony make the same mistake: they act amorally in an attempt to build a structure of licenses/agreements that tries to bridge a gulf in understanding between a FaiF community and those only barely dipping their toe in that community. I chose the word amoral, as I often do, to note a situation where important moral principles exist, but the primary actors involved seek to remove morality from the considerations under the guise of leaving decision-making to the “magic of the marketplace”. Project Harmony is repeating the mistake of the CC license suite that the Free Culture community has spent a decade (and counting) cleaning up.

Conclusions

Please note that IANAL and TINLA. I'm just a community- and individual-developer- focused software freedom policy wonk who has some grave concerns about how these Project Harmony Agreements operate. I can't give you a fine-grained legal analysis, because I'm frankly only an amateur when it comes to the law, but I am an expert in software freedom project policy. In that vein — corporate attorney endorsements notwithstanding — my opinion is that Project Harmony should be abandoned entirely.

In fact, the distinction between policy and legal expertise actually shows the root of the problem with Project Harmony. It's a system of documents designed by a committee primarily comprised of corporate attorneys, yet it's offered up as if it's a FLOSS developer consensus. Indeed, Project Harmony itself was initiated by Amanda Brock, a for-profit corporate attorney for Canonical, Ltd, who is remains involved in its drafting. Canonical, Ltd. later hired Mark Radcliffe (a big law firm attorney, who has defended GPL violators) to draft the alpha revisions of the document, and Radcliffe remains involved in the process. Furthermore, the primary drafting process was done secretly in closed meetings dominated by corporate attorneys until the documents were almost complete; the process was not made publicly open to the FLOSS community until April 2011. The 1.0 documents differ little from the drafts that were released in April 2011, and thus remain to this day primarily documents drafted in secrecy by corporate attorneys who have only a passing familiarity with software freedom culture.

Meanwhile, I've asked Project Harmony's advocates many times who is in charge of Project Harmony now, and no one can give me a straight answer. One is left to wonder who decides final draft approval and what process exists to prevent or permit text for the drafts. The process which once was in secrecy appears to be now in chaos because it was opened up too late for fundamental problems to be resolved.

A few developers are indeed actively involved in Project Harmony. But Project Harmony is not something that most developers requested; it was initiated by companies who would like to convince developers to passively adopt overreaching CLAs and ©AAs. To me, the whole Project Harmony process feels like a war of attrition to convince developers to accept something that they don't necessarily want with minimal dissent. In short, the need for Project Harmony has not been fully articulated to developers.

Finally, I ask, what's really broken here? The industry has been steadily and widely adopting GNU and Linux for years. GNU, for its part, has FSF assignments in place for much of its earlier projects, but the later projects (GNOME, in particular) have either been against both ©AA's and CLA's entirely, or are mostly indifferent to them and use inbound=outbound. Linux, for its part, uses the DCO, which does the job of handling the urgent and important parts of a CLA without getting in developers' way and without otherwise forcing extra liabilities onto the developers and handing over important licensing decisions (including copyleft weakening ones) to a single (usually for-profit) entity.

In short, Project Harmony is a design-flawed solution looking for a problem.