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posted by martyb on Wednesday September 26 2018, @01:12PM   Printer-friendly
from the don-asbestos-garments dept.

[Updated 2018-09-26 20:30:00 to show the CoC is already in effect. --martyb]

[Ed Note: Given Linus Torvalds' recent decision to step down as head of Linux development for a while, and news of an attempt to install a a new CoC (Code of Conduct) on Linux development, I believe it important to communicate this to our community. It does, however, offer an opportunity for more, ummm, fire, flame, and feelings than the usual stories posted here. Let's try and keep things civil and discuss the merits (or lack of same). To quote Sergeant Joe Friday "All we're interested in is the facts, ma'am."

If you are not interested in this, another story will be along before too long... just ignore this one.

As for the code of conduct itself, take a look at: code of conduct and the kernel commit.]

Eric S. Raymond speaks in regards to the Linux CoC:

From(Eric S. Raymond)
SubjectOn holy wars, and a plea for peace
DateSun, 23 Sep 2018 16:50:52 -0400 (EDT)

Most of you know that I have spent more than a quarter century analyzing the folkways of the hacker culture as a historian, ethnographer, and game theorist. That analysis has had large consequences, including a degree of business and mainstream acceptance of the open source way that was difficult to even imagine when I first presented "The Cathedral and the Bazaar" back in 1997.

I'm writing now, from all of that experience and with all that perspective, about the recent flap over the new CoC and the attempt to organize a mass withdrawal of creator permissions from the kernel.

I'm going to try to keep my personal feelings about this dispute off the table, not because I don't have any but because I think I serve us all better by speaking as neutrally as I can.

First, let me confirm that this threat has teeth. I researched the relevant law when I was founding the Open Source Initiative. In the U.S. there is case law confirming that reputational losses relating to conversion of the rights of a contributor to a GPLed project are judicable in law. I do not know the case law outside the U.S., but in countries observing the Berne Convention without the U.S.'s opt-out of the "moral rights" clause, that clause probably gives the objectors an even stronger case.

I urge that we all step back from the edge of this cliff, and I weant[sic] to suggest a basis of principle on which settlement can be negotiated.

Before I go further, let me say that I unequivocally support Linus's decision to step aside and work on cleaning up his part of the process. If for no other reason than that the man has earned a rest.

But this leaves us with a governance crisis on top of a conflict of principles. That is a difficult combination. Fortunately, there is lots of precedent about how to solve such problems in human history. We can look back on both tragic failures and epic successes and take lessons from them that apply here.

To explain those lessons, I'm going to invite everybody to think like a game theorist for a bit.

Every group of humans trying to sustain cooperation develops an ethos, set of norms. It may be written down. More usually it is a web of agreements that one has to learn by observing the behavior of others. The norms may not even be conscious; there's a famous result from experimental psychology that young children can play cooperative games without being able to articulate what their rules are...

Every group of cooperating humans has a telos, a mutually understood purpose towards which they are working (or playing). Again, this purpose may be unwritten and is not necessarily even conscious. But one thing is always true: the ethos derives from the telos, not the other way around. The goal precedes the instrument.

It is normal for the group ethos to evolve. It will get pulled in one direction or another as the goals of individuals and coalitions inside the group shift. In a well-functioning group the ethos tends to evolve to reward behaviors that achieve the telos more efficiently, and punish behaviors that retard progess towards it.

It is not normal for the group's telos - which holds the whole cooperation together and underpins the ethos - to change in a significant way. Attempts to change the telos tend to be profoundly disruptive to the group, often terminally so.

Now I want you to imagine that the group can adopt any of a set of ethoi ranked by normativeness - how much behavior they require and prohibit. If the normativeness slider is set low, the group as a whole will tolerate behavior that some people in it will consider negative and offensive. If the normativeness level is set high, many effects are less visible; contributors who chafe under restriction will defect (usually quietly) and potential contributors will be deterred from joining.

If the normativeness slider starts low and is pushed high, the consequences are much more visible; you can get internal revolt against the change from people who consider the ethos to no longer serve their interests. This is especially likely if, bundled with a change in rules of procedure, there seems to be an attempt to change the telos of the group.

What can we say about where to set the slider? In general, the most successful - most inclusive - cooperations have a minimal ethos. That is, they are just as normative as they must be to achieve the telos, *and no more so*. It's easy to see why this is. Pushing the slider too high risks internal factional strife over value conflicts. This is worse than having it set too low, where consensus is easier to maintain but you get too little control of conflict between *individuals*.

None of this is breaking news. We cooperate best when we live and let live, respecting that others may make different choices and invoking the group against bad behavior only when it disrupts cooperative success. Inclusiveness demands tolerance.

Strict ethoi are typically functional glue only for small groups at the margins of society; minority regious groups are the best-studied case. The larger and more varied your group is, the more penalty there is for trying to be too normative.

What we have now is a situation in which a subgroup within the Linux kernel's subculture threatens destructive revolt because not only do they think the slider been pushed too high in a normative direction, but because they think the CoC is an attempt to change the group's telos.

The first important thing to get is that this revolt is not really about any of the surface issues the CoC was written to address. It would be maximally unhelpful to accuse the anti-CoC people of being pro-sexism, or anti-minority, or whatever. Doing that can only inflame their sense that the group telos is being hijacked. They make it clear; they signed on to participate in a meritocracy with reputation rewards, and they think that is being taken way from them.

One way to process this complaint is to assert that the CoC's new concerns are so important that the anti-CoC faction can be and should be fought to the point where they withdraw or surrender. The trouble with this way of responding is that it *is* in fact a hijacking of the group's telos - an assertion that we ought to have new terminal values replacing old ones that the objectors think they're defending.

So a really major question here is: what is the telos of this subculture? Does the new CoC express it? Have the objectors expressed it?

The question *not* to get hung up on is what any individual's choice in this matter says about their attitude towards, say, historically underepresented minorities. It is perfectly consistent to be pro-tolerance and pro-inclusion while believing *this* subculture ought to be all about producing good code without regard to who is offended by the process. Not every kind of good work has to be done everywhere. Nobody demands that social-justice causes demonstrate their ability to write C.

That last paragraph may sound like I have strayed from neutrality into making a value claim, but not really. It's just another way of saying that different groups have different teloi, and different ethoi proceeding from them. Generally speaking (that is, unless it commits actual crimes) you can only judge a group by how it fulfills its own telos, not those of others.

So we come back to two questions:

  1. What is our telos?
  2. Given our telos, do we have the most inclusive (least normative) ethos possible to achieve it?

When you have an answer to that question, you will know what we need to do about the CoC and the "killswitch" revolt.
--
                Eric S. Raymond

The spirit of resistance to government is so valuable on certain occasions, that I wish it always to be kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. -- Thomas Jefferson, letter to Abigail Adams, 1787

LKML URL: http://lkml.org/lkml/2018/9/23/212

Possibly in reference to: http://lkml.org/lkml/2018/9/20/444


Original Submission

 
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  • (Score: 1, Informative) by Anonymous Coward on Thursday September 27 2018, @02:41AM (2 children)

    by Anonymous Coward on Thursday September 27 2018, @02:41AM (#740600)

    The free software conservancy has tendered its response:
    http://sfconservancy.org/news/2018/sep/26/GPLv2-irrevocability/ [sfconservancy.org]
    http://copyleft.org/guide/comprehensive-gpl-guidech8.html#x11-540007.4 [copyleft.org]

    ""
    "The GPLv2 have several provisions that, when taken together, can be construed as an irrevocable license from each contributor. "
    ""

    It cites:

                        " That license granted to downstream is irrevocable, again provided that the downstream user complies with the license terms: “[P]arties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance” (GPLv2§4). "

    However this is disingenuous

    The full text of section 4 is as follows:

    ""
        4. You may not copy, modify, sublicense, or distribute the Program
    except as expressly provided under this License. Any attempt
    otherwise to copy, modify, sublicense or distribute the Program is
    void, and will automatically terminate your rights under this License.
    However, parties who have received copies, or rights, from you under
    this License will not have their licenses terminated so long as such
    parties remain in full compliance.
    ""

    The "You" in section 4 is speaking of the licensee regarding sub-licensees, it is not speaking to the licensor/copyright-holder.

    IE: if the licensee loses his license, through operation of the automatic-revocation provisions, the sub-licensees do not also lose their licenses.

    IE: The language is disclaiming a chain topography for license distribution, and instead substituting a hub-and-spoke topography (all licenses originating from the copyright holder, not the previous-in-line)

    GPLv3 added a no-rescission clause for a reason: the reason being to attempt (_attempt_) to create an estoppel defense for the licensees against the licensor. You will notice that Eben Moglen never speaks on these issues. He knows the weaknesses vis a vis the US copyright regime.

    Section 6 further clarifies the hub-and-spoke model:
    ""
          6. Each time you redistribute the Program (or any work based on the
    Program), the recipient automatically receives a license from the
    original licensor to copy, distribute or modify the Program subject to
    these terms and conditions. You may not impose any further
    restrictions on the recipients' exercise of the rights granted herein.
    You are not responsible for enforcing compliance by third parties to
    this License.
    ""

    The memorandum posted then goes on to a discussion of estoppel, detrimental reliance, etc; noting that users may have relied on the software and their licenses may be estopped from being revoked from said users since doing so might cause them unanticipated loss. This is speaking of already published, existent, versions of the program used by end users.

    The memorandum seems to ignore what happens to "upstream" once said project receives a revocation notice. Thought it may be possible that users of a published piece of software may have defenses to license revocation, the same is not true regarding the rescinded property vis-a-vis future prospective versions of the software nor of future prospective licensees of said software.

    That is: once the grant to use the code in question is rescinded, future versions of the software may not use that code. Current users of the software may be-able to raise an estoppel or detrimental reliance defense regarding the current published software, however the programmers working on the next version of said software cannot continue to use the property in future versions of the software (such would be a copyright violation once the gratuitous license is rescinded by the grantor).

    Additionally, prospective-licensees, once the grant was rescinded and such was published, would have no same-such estoppel defense (not being user-licensees at the time of revocation).

    (Ignoring this eventuality in the published memorandum, is, of-course, by design.
    (Now, to note: the free-software movement is focused on the freedom of the user, not the progenitors of the software, so one could certainly say that ignoring some developer-focused analysis is consistent with their prerogative...)

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  • (Score: 2) by choose another one on Thursday September 27 2018, @03:41PM (1 child)

    by choose another one (515) on Thursday September 27 2018, @03:41PM (#740827)

    The "You" in section 4 is speaking of the licensee regarding sub-licensees, it is not speaking to the licensor/copyright-holder.

    Bingo. But... each contributor is a licensee too, in order to have the right modify. Possibly the GPL could terminate the contributor's rights under the licence - but rescission is not included in the list of actions that terminate rights. Oops, possibly.

    IE: The language is disclaiming a chain topography for license distribution

    Not sure a chain topography would help anyway, otherwise licensees could trivially end-run the law - author sells rights to BigCorp for a pittance, BigCorp makes millions, author regrets and rescinds at 35yr point, BigCorp says "OK, but doesn't have much effect on us because we sublicensed to FatCorp last year and all business with your work is now done by them". I don't think it works like that.

    6. Each time you redistribute the Program (or any work based on the
    Program), the recipient automatically receives a license from the
    original licensor

    Nice catch. Now combine with (from SFC):

    The contributor is, of course, free to make no future grants, but they can’t withdraw past grants.

    Definitely oops. Once the original licensor rescinds, they admit that (6) cannot happen, and the whole legal edifice comes tumbling down, very probably (section 4 at least).

    Additionally, prospective-licensees, once the grant was rescinded and such was published, would have no same-such estoppel defense (not being user-licensees at the time of revocation).

    Careful, not sure what qualifies as notice of rescission, it may have to be direct rather that published. However, that doesn't provide any protection for future development since all you have to do is give notice to current major contributors and those people cannot then use your code - at that point it's freeze Linux or stop dev and excise the code (same effect either way).

    • (Score: 0) by Anonymous Coward on Saturday September 29 2018, @05:33AM

      by Anonymous Coward on Saturday September 29 2018, @05:33AM (#741718)

      Oh my, thou hast placed the law of the land above the sanctity of the License, prepare to be castigated.

      As all the Programmers know: copyright law rests upon the license decided upon, not the other way around!
      Nay the license can bend the ... (ummm) not-underlying law to its will!

      As we all know: licenses stand alone, and have nothing to do with the underlying law...
      Pray thee learn this well!
      (before it's too late).