AGPL 與大 SaaS 時代授權的逆襲 / The License Strikes Back!: AGPL and Cloud-Targeting Licenses in the era of SaaS

From Server Side Public License to labor condition-aware Anti-996 License, these licenses partially reflected the community’s rebellion against the current landscape of open source software. However, some considered these restrictions a blatant violation of The Four Freedoms. Starting from the recent uneasiness regarding AGPL terms, this session would dive into the land of strong copyleft licenses and discuss the legal challenges, the conflict with software freedom ideology, and possible future developments.

Talk @ COSCUP 2022, National Taiwan University of Science and Technology (NTUST), Taipei, Taiwan.

Transcript

1. RSChiang @ COSCUP 2022, CC BY - SA 4.0 AGPL 與⼤ SaaS 時代 
 授權的逆襲 The License Strikes Back! AGPL and Cloud- Targeting Licenses in the era of SaaS
2. RSChiang hi@poren.tw
3. 為什麼會講到 AGPL?
4. Hector Martin (@marcan42 ) , Twitter ( Apr 4th, 2022 ) .
5. 「如果想打筆戰⼜不想浪費時間， 就把內容拿去 COSCUP 投稿」 RSChiang, 2022
6. 迅速複習⼀下授權光譜！ 開源 不受拘束的改作利⽤ ⾃由 積極保障衍⽣著作的流通 MIT/X11 BSD - 2 Apache MPL LGPL GPL AGPL
7. • 保障使⽤者執⾏、重製、修改、散布的權利 • 如果改作，也要讓使⽤者有分享與修改軟體的⾃由 • 具有「感染性」，衍⽣著作也須受 GPL 授權拘束 • 散布 GPL 授權的軟體時須將授權條款與程式碼⼀併交付使⽤者 • 程式碼必須是附有必要指⽰、可以編譯的 • 如果無法隨附程式碼（例如嵌入式裝置），則必須以書⾯告知索取 程式碼的⽅式 GNU General Public License GPL 3.0
8. • 第零⾃由：不限⽬的、隨⼼所欲執⾏程式的⾃由 • 第⼀⾃由：研究程式運作⽅式、並隨⼼所欲修改執⾏的⾃由 • 第⼆⾃由：散布拷⾙幫助別⼈的⾃由 • 第三⾃由：散布修改後版本的拷⾙以回饋社會的⾃由 ⾃由軟體的四⼤⾃由 Free Software Foundation, What is free software?, GNU.org (last updated Jun 25th, 2022 ) .
9. xkcd.com, Dependency, CC BY - NC 2.5 ( Aug 17th, 2020 ) .
10. https://slate.com/technology/2019/10/heartbleed-lessons-open-source-code.html
11. https://arstechnica.com/information-technology/2014/04/tech-giants-chastened-by-heartbleed-finally-agree-to-fund-openssl/
12. https://techcrunch.com/2022/01/18/open-source-developers-who-work-for-free-are-discovering-they-have-power/
13. AGPL “Affero” General Public License
14. AGPL 到底改了什麼？
15. GNU AFFERO GENERAL PUBLIC LICENSE Version 3, 29 June19 November 2007 Copyright (C) 2007 Free Software Foundation, Inc. <https://fsf.org/> Everyone is permitted to copy and distribute verbatim copies of this license document, but changing it is not allowed. Preamble The GNU Affero General Public License is a free, copyleft license for software and other kinds of works, specifically designed to ensure 
 cooperation with the community in the case of network server software. The licenses for most software and other practical works are designed to take away your freedom to share and change the works. By contrast, the GNUour General Public Licenses isare intended to guarantee your freedom to share and change all versions of a program--to make sure it remains free software for all its users. We, the Free Software Foundation, use the GNU General Public License for most of our software; it applies also to any other work released this way by its authors. You can apply it to your programs, too.
16. To protect your rights, we need to prevent others from denying you these rights or asking you to surrender the rights. Therefore, you have certain responsibilities if you distribute copies of the software, or if you modify it: responsibilities to respect the freedom of others. For example, if you distribute copies of such a program, whether gratis or for a fee, you must pass on to the recipients the same freedoms that you received. You must make sure that they, too, receive or can get the source code. And you must show them these terms so they know their rights. Developers that use the GNU GPLour General Public Licenses protect your rights with two steps: (1) assert copyright on the software, and (2) offer you this License which gives you legal permission to copy, distribute and/or modify the software. For the developers' and authors' protection, the GPL clearly explains that there is no warranty for this free software. For both users' and authors' sake, the GPL requires that modified versions be marked as changed, so that their problems will not be attributed erroneously to authors of previous versions. Some devices are designed to deny users access to install or run modified versions of the software inside them, although the manufacturer can do so. This is fundamentally incompatible with the aim of protecting users' freedom to change the software. The systematic pattern of such abuse occurs in the area of products for individuals to use, which is precisely where it is most unacceptable. Therefore, we have designed this version of the GPL to prohibit the practice for those products. If such problems arise substantially in other domains, we stand ready to extend this provision to those domains in future versions of the GPL, as needed to protect the freedom of users. Finally, every program is threatened constantly by software patents. States should not allow patents to restrict development and use of software on general-purpose computers, but in those that do, we wish to avoid the special danger that patents applied to a free program could make it effectively proprietary. To prevent this, the GPL assures that patents cannot be used to render the program non-free.
17. A secondary benefit of defending all users' freedom is that improvements made in alternate versions of the program, if they receive widespread use, become available for other developers to incorporate. Many developers of free software are heartened and encouraged by the resulting cooperation. However, in the case of software used on network servers, this result may fail to come about. The GNU General Public License permits making a modified version and letting the public access it on a server without ever releasing its source code to the public. The GNU Affero General Public License is designed specifically to ensure that, in such cases, the modified source code becomes available to the community. It requires the operator of a network server to provide the source code of the modified version running there to the users of that server. Therefore, public use of a modified version, on a publicly accessible server, gives the public access to the source code of the modified version. An older license, called the Affero General Public License and published by Affero, was designed to accomplish similar goals. This is a different license, not a version of the Affero GPL, but Affero has released a new version of the Affero GPL which permits relicensing under this license. The precise terms and conditions for copying, distribution and modification follow. TERMS AND CONDITIONS 0. Definitions. "This License" refers to version 3 of the GNU Affero General Public License.
18. "
    GFX
    NPNFOUT
    MBUFS
19. 13. Remote Network Interaction; Use with the GNU Affero General Public License. Notwithstanding any other provision of this License, if you modify the Program, your modified version must prominently offer all users interacting with it remotely through a computer network (if your version supports such interaction) an opportunity to receive the Corresponding Source of your version by providing access to the Corresponding Source from a network server at no charge, through some standard or customary means of facilitating copying of software. This Corresponding Source shall include the Corresponding Source for any work covered by version 3 of the GNU General Public License that is incorporated pursuant to the following paragraph. Notwithstanding any other provision of this License, you have permission to link or combine any covered work with a work licensed under version 3 of the GNU Affero General Public License into a single combined work, and to convey the resulting work. The terms of this License will continue to apply to the part which is the covered work, but the special requirements of the GNU Affero General Public License, section 13, concerning interaction through a network will apply to the combination as suchwork with which it is combined will remain governed by version 3 of the GNU General Public License.
20. 14. Revised Versions of this License. The Free Software Foundation may publish revised and/or new versions of the GNU Affero General Public License from time to time. Such new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns. Each version is given a distinguishing version number. If the Program specifies that a certain numbered version of the GNU Affero General Public License "or any later version" applies to it, you have the option of following the terms and conditions either of that numbered version or of any later version published by the Free Software Foundation. If the Program does not specify a version number of the GNU Affero General Public License, you may choose any version ever published by the Free Software Foundation. If the Program specifies that a proxy can decide which future versions of the GNU Affero General Public License can be used, that proxy’s public statement of acceptance of a version permanently authorizes you to choose that version for the Program. Later license versions may give you additional or different permissions. However, no additional obligations are imposed on any
21. How to Apply These Terms to Your New Programs If you develop a new program, and you want it to be of the greatest possible use to the public, the best way to achieve this is to make it free software which everyone can redistribute and change under these terms. To do so, attach the following notices to the program. It is safest to attach them to the start of each source file to most effectively state the exclusion of warranty; and each file should have at least the "copyright" line and a pointer to where the full notice is found. <one line to give the program's name and a brief idea of what it does.> Copyright (C) <year> <name of author> This program is free software: you can redistribute it and/or modify it under the terms of the GNU Affero General Public License as published by the Free Software Foundation, either version 3 of the License, or (at your option) any later version. This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU Affero General Public License for more details. You should have received a copy of the GNU Affero General Public License along with this program. If not, see <https://www.gnu.org/licenses/>. Also add information on how to contact you by electronic and paper mail.
22. If the program does terminal interaction, make it output a short notice like this when it starts in an interactive mode: <program> Copyright (C) <year> <name of author> This program comes with ABSOLUTELY NO WARRANTY; for details type 
 `show w’. This is free software, and you are welcome to redistribute
 it under certain conditions; type `show c' for details. The hypothetical commands `show w' and `show c' should show the appropriate parts of the General Public License. Of course, your program's commands might be different; for a GUI interface, you would use an "about box". If your software can interact with users remotely through a computer network, you should also make sure that it provides a way for users to get its source. For example, if your program is a web application, its interface could display a "Source" link that leads users to an archive of the code. There are many ways you could offer source, and different solutions will be better for different programs; see section 13 for the specific requirements.
23. You should also get your employer (if you work as a programmer) or school, if any, to sign a "copyright disclaimer" for the program, if necessary. For more information on this, and how to apply and follow the GNU AGPL, see <https://www.gnu.org/licenses/>. The GNU General Public License does not permit incorporating your program into proprietary programs. If your program is a subroutine library, you may consider it more useful to permit linking proprietary applications with the library. If this is what you want to do, use the GNU Lesser General Public License instead of this License. But first, please read <https://www.gnu.org/licenses/why-not-lgpl.html>.
24. 相較於 GPL，AGPL 修改了： • 授權條款名稱（GPL -> Affero GPL） • 前⾔（訂定緣由替換成對應敘述） • 第 13 款「遠端網路互動」條款 • 附錄「如何將條款套⽤⾄你的新程式」的敘述（GUI -> 網⾴） • 刪除末尾關於 LGPL 的說明 透過 diff，我們了解到了什麼？ 從 GPL 到 AGPL
25. AGPL 不⾃由之謎
26. • 第 13 款「遠端網路互動」條款如何解釋？ • 雲端服務如何定義「⽬的碼」與「對應原始碼」？ • 外加條款的效⼒？ -> Neo4j v. Graph Foundation • 契約定性與拘束⼒問題 AGPL 的問題點
27. 13. Remote Network Interaction; Use with the GNU General Public License. Notwithstanding any other provision of this License, if you modify the Program, your modified version must prominently offer all users interacting with it remotely through a computer network (if your version supports such interaction) an opportunity to receive the Corresponding Source of your version by providing access to the Corresponding Source from a network server at no charge, through some standard or customary means of facilitating copying of software. This Corresponding Source shall include the Corresponding Source for any work covered by version 3 of the GNU General Public License that is incorporated pursuant to the following paragraph.
28. 0. Definitions. …… The "Corresponding Source" for a work in object code form means all the source code needed to generate, install, and (for an executable work) run the object code and to modify the work, including scripts to control those activities. However, it does not include the work's System Libraries, or general-purpose tools or generally available free programs which are used unmodified in performing those activities but which are not part of the work. For example, Corresponding Source includes interface definition files associated with source files for the work, and the source code for shared libraries and dynamically linked subprograms that the work is specifically designed to require, such as by intimate data communication or control flow between those subprograms and other parts of the work. …… The Corresponding Source for a work in source code form is that same work.
29. 6. Conveying Non-Source Forms. …… d) Convey the object code by offering access from a designated place (gratis or for a charge), and offer equivalent access to the Corresponding Source in the same way through the same place at no further charge. You need not require recipients to copy the Corresponding Source along with the object code. If the place to copy the object code is a network server, the Corresponding Source may be on a different server (operated by you or a third party) that supports equivalent copying facilities, provided you maintain clear directions next to the object code saying where to find the Corresponding Source. Regardless of what server hosts the Corresponding Source, you remain obligated to ensure that it is available for as long as needed to satisfy these requirements.
30. 延伸授權條款
31. SSPL Server Side Public License
32. 13. Offering the Program as a Service. If you make the functionality of the Program or a modified version available to third parties as a service, you must make the Service Source Code available via network download to everyone at no charge, under the terms of this License. Making the functionality of the Program or modified version available to third parties as a service includes, without limitation, enabling third parties to interact with the functionality of the Program or modified version remotely through a computer network, offering a service the value of which entirely or primarily derives from the value of the Program or modified version, or offering a service that accomplishes for users the primary purpose of the Program or modified version. "Service Source Code" means the Corresponding Source for the Program or the modified version, and the Corresponding Source for all programs that you use to make the Program or modified version available as a service, including, without limitation, management software, user interfaces, application program interfaces, automation software, monitoring software, backup software, storage software and hosting software, all such that a user could run an instance of the service using the Service Source Code you make available.
33. • 修改⾃ AGPL，但針對提供 PaaS、SaaS 服務者額外規範 • 無論有無修改，若透過網路提供服務，都有提供原始碼的義務 • 提供原始碼的範圍包含管理、備份、網⾴介⾯ ≒ 整套平台原始碼 -> ( A ) GPL 授權條款是否允許此種衍⽣授權？ -> SSPL 授權軟體本質上是否仍為⾃由軟體？ Server Side Public License SSPL
34. Anti 996 License 反996许可证
35. 2. The individual or the legal entity must strictly comply with all applicable laws, regulations, rules and standards of the jurisdiction relating to labor and employment where the individual is physically located or where the individual was born or naturalized; or where the legal entity is registered or is operating (whichever is stricter). In case that the jurisdiction has no such laws, regulations, rules and standards or its laws, regulations, rules and standards are unenforceable, the individual or the legal entity are required to comply with Core International Labor Standards. 3. The individual or the legal entity shall not induce or force its employee(s), whether full-time or part-time, or its independent contractor(s), in any methods, to agree in oral or written form, to directly or indirectly restrict, weaken or relinquish his or her rights or remedies under such laws, regulations, rules and standards relating to labor and employment as mentioned above, no matter whether such written or oral agreement are enforceable under the laws of the said jurisdiction, nor shall such individual or the legal entity limit, in any methods, the rights of its employee(s) or independent contractor(s) from reporting or complaining to the copyright holder or relevant authorities monitoring the compliance of the license about its violation(s) of the said license.
36. • 由 UIUC 法學院與資訊學院的研究⽣發起 • 訴求正視中國國內軟體⼯程師過勞（「996」）議題 • 在 MIT 授權條款上外加「被授權法⼈須遵守勞動法規」的規定 -> 外加特定限制，本質上是否仍為開源軟體？ 反996许可证 Anti 996 License
37. https://github.com/kattgu7/Anti-996 - License/wiki/Explanation
38. 爭議的答案
39. 「判例過少， 
 仍待學界與法界形成完整學說。」
40. 「真棒。」 （設計對⽩） Photo by Mou @ SITCON on Flickr, CC BY - SA 2.0
41. • 第零⾃由：不限⽬的、隨⼼所欲執⾏程式的⾃由 • 第⼀⾃由：研究程式運作⽅式、並隨⼼所欲修改執⾏的⾃由 • 第⼆⾃由：散布拷⾙幫助別⼈的⾃由 • 第三⾃由：散布修改後版本的拷⾙以回饋社會的⾃由 複習⾃由軟體的四⼤⾃由 Free Software Foundation, What is free software?, GNU.org (last updated Jun 25th, 2022 ) .
42. 後開源時代： 
 作為社群，我們想選擇的價值是什麼？ 聽起來⼜可以講⼀個 talk
43. • Neo4j, Inc. v. Graph Foundation, Inc. ( N.D. Cal. 2020 ) . • Jason B. Wacha, Taking the Case: Is the GPL Enforceable, 21 SANTA CLARA COMPUTER & HIGH TECH. L.J. 451 ( 2005 ) . • Tennille M. Christensen, The GNU General Public License: Constitutional Subversion, 33 HASTINGS CONST. L.Q. 397 ( 2006 ) . • Eduard Szattler, GPL Viral License or Viral Contract, 1 MASARYK U. J.L. & TECH. 67 ( 2007 ) . • M. J. Wolf et. al, On the meaning of free software, 11 ETHICS & INFO. TECH. 279 ( 2009 ) . 參考資料與延伸閱讀
44. • Pessi Honkasalo, Reciprocity under the GNU General Public Licenses, 2009 NORDIC J. COM. L. 1 ( 2009 ) . • Walter H. van Holst, Less May Be More: Copyleft, Right and the Case Law on APIs on Both Sides of the Atlantic, 5 IFOSS L. REV. 5 ( 2013 ) . • Miriam Ballhausen, OpenSaaS : Using Free and Open Source Software as Software-as-a-Service, 6 IFOSS L. REV. 61 ( 2014 ) . • Michaela MacDonald, Open Source Licensing in the Networked Era, 7 Masaryk U. J.L. & Tech. 229 ( 2013 ) . • ⽩莉莉，反996運動全紀錄：想通過代碼改變世界的⼈，為何難以 改變加班現狀？，端傳媒，2019 年 5 ⽉ 20 ⽇。
45. RSChiang @ COSCUP 2022, CC BY - SA 4.0 Thanks!