How Licenses Learn

Authors

Madiha Zahrah Choski, Cornell University
James Grimmelmann, Cornell Law School; Cornell Tech

First Page

249

Abstract

Open-source licenses are infrastructure that collaborative communities inhabit. These licenses don’t just define the legal terms under which members (and outsiders) can use and build on the contributions of others. They also reflect a community’s consensus on the reciprocal obligations that define it as a community. A license is a statement of values, in legally executable form, adapted for daily use. As such, a license must be designed, much as the software and hardware that open-source developers create. Sometimes an existing license is fit to purpose and can be adopted without extensive discussion. However, often the technical and social needs of a community do not precisely map onto existing licenses, or the community itself is divided about the norms a license should enforce. In these cases of breakdown, the community itself must debate and design its license, using the same social processes it uses to debate and design the other infrastructure it relies on, and the final goods it creates.

In this Article, we analyze four case studies of controversy over license design in open-source software and hardware ecosystems. We draw on Stewart Brand’s How Buildings Learn, a study of how physical buildings change over time as they are adapted and repurposed to deal with new circumstances by successive generations of users. Similarly, we describe how open-source licenses are adapted and repurposed by different communities confronting challenges. Debates over license drafting and interpretation are a key mechanism of achieving the necessary consensus for successful collaboration. The resulting licenses are the visible traces of the constant political work that sustains open-source collaboration. Successful licenses, like successful buildings, require ongoing maintenance, and the record of license changes over the years is a history of the communities that have inhabited them.

Recommended Citation

Madiha Z. Choski & James Grimmelmann, How Licenses Learn, 28 Lewis & Clark L. Rev. 249 (2024).
Available at: https://lawcommons.lclark.edu/lclr/vol28/iss2/3