Under Analysis- Evil, pigskin, and code: One of these is like the other

   In the “It’s the Great Pumpkin, Charlie Brown,” television special, Lucy pleads with a reluctant Charlie Brown to let her hold the football for a placekick.  Lucy delivers Charlie Brown a document stating that she will not move the ball.  Charlie marvels at the document: “It is signed. A signed document. I guess if you have a signed document in your possession, you can't go wrong. Maybe this is the year I finally kick that football.” With the contract in hand, Charlie agrees to play football.  Any of us that have watched Charlie Brown or practice law know what happened.  Lucy gloats while Charlie is on the ground, “Peculiar thing about this document. It was never notarized.”
   As strange as it may seem, the Charlie Brown episode got me thinking about open source software licensing.   In this scenario, Charlie Brown thought he had entered an agreement with Lucy in which she agreed he could kick her football, just as those who act based on an open source software license believe the software creator has agreed that their software can be kicked about as well.    Before putting in a lot of time and energy designing software relying on such open source code, however, the wary programmer may do well to determine whether Lucy Licensor is pulling a fast one.
   Some background about open source software licensing is essential to answer that question.  Open source software licensing is not only a way to license source code, but it is an entire movement.  An open source software license is a copyright license for computer software that makes the source code available for everyone to use. This allows end users to review and modify the source code for their own customization.  It is a software license designed to support the movement’s view that freely transferring software code will lead to better inventions and better products.    Basically, it’s hippie code:  free love, free code.  Open source proponents visualize open source software as the way of the future.
   Sometimes, however, the hippie aspect of open source ends up causing problems.   Douglas Crockford , for example, is known for writing a license for his software creations that basically makes the code freely available to everyone, but also includes the statement, “The Software shall be used for Good, not Evil.” 
   In expressing his support for goodness instead of badness, however, Crockford jeopardizes the legal effectiveness of his open source license.   The statement sounds like a restriction, and therefore causes his license to not qualify as a true open source license.   Crockford maintains that his license, even with the statement, should be considered open source, but others are not comfortable that his view controls over the words of his license.
   The Open-Source Initiative (www.opensource.org) defines open source licensing, in part:
   The license must not restrict anyone from making use of the program in a specific field of endeavor.
   Because the Crockford restriction ostensibly restricts other software from certain endeavors, specifically, evil endeavors, the Crockford restriction is just that – a restriction. 
In this Crockford restriction scenario, the “Great Pumpkin” football game is analogous.  Crockford is holding the football on the ground, goading us to kick it.  In some circles, that might be called “evil.”
   Crockford once jokingly explained that the impetus for the anti-evil statement was that the license was written post-declaration of the “War on Terror,” and he felt that he wanted to do his part.  The Crockford restriction defenders maintain that because the restriction is just “cute,” it’s unenforceable.  A Crockford restriction defender would have you believe that there is no way enforcing the malleable notions of good and evil.  The precise intention of the Crockford restriction may never be clear, but it has been described as a joke.
   With the exception of the unruly gang at the Levison Towers, lawyers tend to be a pretty serious bunch, as are large companies like Google and IBM.  Unfortunately with an audience like that, Crockford’s license joke falls flat.  While Crockford restriction defenders would have us shrug off ambiguous sentences, lawyers and have careers centered on analyzing words.  (In addition, shying away from ambiguity would cause a cataclysmic reduction in billing.)  Crockford restriction defenders are apparently not aware of the enduring wisdom of opening Black’s Law dictionary to resolve any ambiguity.
   Crockford’s “joke” is lost on IBM and Google, who refuse to accept or host source code with Crockford restriction licensing.  Crockford is fond of facetiously pointing out large companies’ refusal to accept the restriction, remarking that it’s indicative of their pro-evil position.  His response is reminiscent of Lucy taunting Charlie Brown.      However, Crockford has a history of releasing an amendment to his license restriction – allowing IBM to use his code “for evil,” instead of releasing a restriction-free license.  This is interesting, considering that Crockford maintains his restriction was just a “joke.”
   The courts have not had occasion yet to test the Crockford restriction, although I personally would be very interested to read the analysis of good and evil.  I don’t blame    Google or IBM from staying far, far away from a restriction like it.  No one wants to be Charlie Brown if it’s avoidable.   
   I could not resist opening my dusty copy of Black’s Law to look up “evil.”  To my surprise, the definition read, “hippie code.” 

© 2010 under analysis LLC.    Under Analysis is a nationally syndicated column of the Levison Group. You may send comments or criticisms to the Levison Group c/o this newspaper or direct via email to comments@levisongroup.com

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