[jmillikin]

Most open-source licenses are anchored in copyright law, which is "default deny": you don't have the right to copy other people's works unless they grant you permission. This is good because copyright law is well understood, but means the license itself can only be used to restrict behavior that require copyright permission.

The AGPL attempts to restrict behavior that does _not_ require copyright permission. If I have MongoDB running on my server and it serves as a datastore to my website, then no part of MongoDB is copied off my machine. Copyright doesn't apply. So the only way the AGPL can exist is if it's _not_ a copyright license.

But if the AGPL isn't a copyright license, what _is_ it? Is it a contract with no consideration? Is it a copyright license _combined with_ a contract? Is it like a EULA, and if so, how does it apply when the apparent end-user (the person visiting my site) hasn't accepted the terms?

Lawyers don't like these sort of pseudo-contract legal constructs, they're the law equivalent of a flaky hour-long integration test.

[mikekchar]

It's an interesting point, but I think you are looking at it from the wrong point of view. As far as I understand, the AGPL kicks in on "propagation" -- which in the important case means "making available to the public". The license is with the operator of the service, not with the end user of the software.

The consideration is the software itself. In exchange, you are granted a license. The license requires (in part) that you offer the source code to any user that uses the software. As the service provider, it is copyright infringement to make available the AGPL licensed software unless you agree to the license.

The problem with MongoDB is that they are using the AGPL in a way in which it wasn't intended to be used. This confuses the issue about what you are and are not allowed to do.

[jmillikin]

  > As far as I understand, the AGPL kicks in on "propagation"
  > -- which in the important case means "making available to
  > the public".

That's the GPL, and more broadly, all copyright-based licenses. The AGPL was invented to handle software that didn't need to be downloaded to be interacted with. Think of an HTTP server -- the end user interacts with it, but doesn't download the server binary itself. The AGPL is designed to let the end user have access to the server's source code in that situation.

[mikekchar]

You're confusing propagation with conveyance (which is admittedly very easy to do). From the license:

- To "propagate" a work means to do anything with it that, without permission, would make you directly or secondarily liable for infringement under applicable copyright law, except executing it on a computer or modifying a private copy. Propagation includes copying, distribution (with or without modification), making available to the public, and in some countries other activities as well.

- To "convey" a work means any kind of propagation that enables other parties to make or receive copies. Mere interaction with a user through a computer network, with no transfer of a copy, is not conveying.

They make the distinction in the AGPL (which I think they don't in the GPL) for exactly the reason you state.

It's exactly the same with any proprietary server software. You can have a copy of the software, but without a license to allow others to run it, then you can't make it available on a network. These days most server software explicitly allows unlimited use in their license, but in the old days it was always per seat licencing.

If the AGPL is invalid, then so are all extant proprietary server licenses.

[jmillikin]

  > If the AGPL is invalid, then so are all extant proprietary server licenses.

I didn't say the AGPL is invalid, I only said it's not a copyright license. Proprietary software sold by the seat uses a contract -- I pay money for permission to have X concurrent sessions or Y unique users.

The GPLv3 does distinguish propagation and conveyance. This allows the license to put fewer restrictions on certain types of copying that are relevant to large organizations.

[mikekchar]

OK. I see where you are coming from now. I disagree with you that the AGPL and prorietary software licenses are not copyright licenses. You only need a license because otherwise you are not allowed to use the software in that way -- because of copyright.

If I'm a server software producer and I sell you a copy of a piece of software, you can't actually use it unless I also give you a license to use it. This is unlike any other kind of machine that I might make and sell to you. If I sell you my fancy coffee roaster, I literally can not force you to use it in a specific way. This is actually why printer manufacturers put software in the ink cartridges -- so that they can force you to agree to a usage license.

The reasoning behind being able to extend copyright to running programs (which I think is BS, personally, but I don't make up the laws) is that the computer that runs the software must load, and therefore copy, the software. You only have permission to do that if the copyright holder gives you permission to do that.

This is where the license comes in. I give you a license to load the software into running memory (and hence run it), on the provision that you follow the rules I state. You don't have to agree to the license, but if you don't agree, then you don't have a license, and you are forbidden by copyright law from running the software.

With the AGPL, the license is given provided that you agree to give the users a compatible license to the software. Again, the contract consideration is: ability to run the software in exchange for agreeing to the terms.

You are right that the GPLv3 does reference propagation. I should have looked. It mentions it specifically to state that the GPL does not come into effect on propagation, only conveyance (which is the main difference between it and the AGPL).

Edit: spelling

[kemitchell]

Here's a recent post of mine on use restrictions in copyright licenses:

https://blog.licensezero.com/2018/09/14/free-to-take-freedom...

Especially this section:

https://blog.licensezero.com/2018/09/14/free-to-take-freedom...

I know some lawyers who would prefer and argue for your reading of copyright law's limitations, as a matter of policy. But that is not the reading that I see in court decisions or professionally drafted copyright licenses, which impose blanket use and purpose restrictions all the time.

To your point, copyright law is "default deny". (See also: https://oss.kemitchell.com/#defaults-and-overrides) Take as given that the uncertainty you describe is as serious as you present it. Who does that uncertainty benefit, in context? Consider: https://opensource.google.com/docs/using/agpl-policy/

[jmillikin]

I read both those blog posts, which manage to be both over-long and free of concrete content. Which particular part of them do you feel is relevant to this thread?

  > But that is not the reading that I see in court decisions
  > or professionally drafted copyright licenses, which impose
  > blanket use and purpose restrictions all the time.

Please link to an American, Canadian, or EU court decision holding that restrictions on use are enforceable via copyright law. I'll also accept a recent ruling that execution of a copyrighted program does not automatically qualify as fair use.

[kemitchell]

You can see a response I've just posted on Vernor and Deutschlandradio. You may also wish to peruse common proprietary license forms, as I mention in Free to Take Freedom Post.

I won't be providing you any further comments. If you have need of specific guidance in this legal area, please seek your own legal counsel.

[zekevermillion]

This is a better summary of the key issue than any I've read from a lawyer.

The root of it is that the copyleft licensing scheme was from the beginning merely a clever hack. Ideally (from a free software perspective) copyright law would not protect functional software, and we would have another law that requires all published software to be free software.

The GPL was a speculative attempt to bend problematic copyright laws to the purposes of free software. Over time the GPL has proven to work, sort of. But it was not clear at the beginning that it would. Years, decades, have gone by and we now see that there are ways for companies to restrict user freedoms with software that technically complies with the GPL. The GPL was pretty successful for the 1990s concerns, why not make an updated license that addresses 21st Century business models. It is still not clear whether the AGPL will work as well vs SaaS as GPL did against the "selling copies" model.