hot take, FOSS
FOSS as a mechanism for the commons has been a complete failure from a legal perspective, for reasons that would have been obvious to marginalized folks from the start: you do not actually have the money to send lawyers after license violators for enforcement.
The only reason any of it works *at all* is because the concept has established some sort of shared understanding of a commons and the social norms within it, as a side-effect. The legal component is a no-op there.
And even that barely works; it's not intersectional at all, leading to a 'big tent' approach, which frequently results in exploitation of the commons, and the gradual erosion of people's understanding of the "public commons" part.
@joepie91 I don't understand why you'd attribute the success at the 95/99%ile to "shared understanding of [...] social norms". Just because there are violations that are hard to fight in edge cases doesn't mean it's not the legal aspects that made it work in general.
I suspect you'd see significantly more widespread violations than the current state if you detached FOSS from its legal basis in licenses.
@delroth And yet violations are widespread, large amounts of people don't have the money to do enforcement (especially internationally!), and there have been plenty of cases of social pressure alone being effective in fixing shitty practices around licensing.
Just look at Apple, for example, who is frequently accused of being a poor FOSS participant; and yet they publish the source of modifications that legally, *they don't even have to*.
The credible evidence that the legal component is doing the work just isn't there, and even purely reasoning through the mechanics it doesn't make sense to expect it to.
@joepie91 I feel like where we maybe have different viewpoints here is your statement that "violations are widespread". IMO that's a base rate fallacy -- the use of open source software is ultra widespread, so even a tiny rate of violations will be a large number. I don't think it's fair to say the current system doesn't work because it doesn't have a 100% success rate.
I don't know whether good metrics exist on that topic, unfortunately.
@delroth Likewise it is also not fair to assume that the legal component is what makes it work, especially when there's both evidence and rationale that suggests otherwise. Just because things have licenses doesn't mean that it isn't eg. just the act of asking people for attribution doing the work, which is implicit in the license.
Like, that's my problem with this whole thing. People just *assume* that it is the legal component doing the work, and anything that deviates from that opinion needs to be 'proven', but somehow the baseline assumption is exempt from that requirement.
It's the exact same problem as with copyright itself, incidentally; there are mountains of evidence that it doesn't work as intended, but it is just *assumed* that it does, and the burden of proof is somehow put with the people opposing it.
I don't agree with that special treatment, and am of the opinion that the legal effectiveness is unproven, and that it should be treated as such until proven otherwise, especially considering the harmful effects that this assumption has (eg. people assuming effectiveness of ethical source licenses or even copyleft and the resulting problems of legal complexity for everyone involved).
