Licensed, License-Free, and Unlicensed Code

2010/12/19 by Arto Bendiken

As discussed on the Unlicense.org mailing list, the notion of "licensing something under the Unlicense" is a not infrequent misunderstanding that calls for better explanations as to the essential difference between licensed, license-free, and unlicensed code. I will attempt to break it back down to the fundamentals and work upwards from there.

To begin, it's useful to briefly review what copyright is and isn't. As Peter Saint-Andre explains in his very readable essay Who's Afraid of the Public Domain?, copyright is not a natural right. Rather, it is a government-created distribution monopoly privilege, ostensibly instituted on utilitarian grounds, and being (since 1988) automatically granted you whether you want it or not.

Knowing that, be sure to wince a little every time you see that all-too-familiar statement, "All rights reserved", because there are a couple of problems with it.

First off, it would be much more accurately restated as "All privileges retained", since copyright isn't a "right" at all. Secondly, the statement as a whole, in any form, is entirely superfluous (since 1988), as it just refers to the prevailing default state of things: hands off, except if otherwise explicitly and specifically given permission.

Meaning that if you stumble across some code with no attached licensing information, copyright laws would have you treat it as "all privileges retained", even if its author in fact was just trying to make it available with no strings attached.

So, this then is why the Unlicense is needed: if you never asked to be a monopolist, even a small-time one, and quite simply have no interest nor desire to be one, it so happens that you actually need to explicitly tell your potential users this in the form of a copyright waiver called a public-domain dedication.

If you don't do this, and just put your software out there without a license or dedication at all, what you're effectively doing, according to copyright laws, is slapping the implicit and forbidding "look but don't touch, and certainly don't copy" license on it. The result is known as license-free software, and won't exactly help make you or your software very popular.

By instead adopting the Unlicense for your code, what you're doing is voluntarily and unequivocally giving up any and all monopoly privileges granted you by the state and unlicensing your code into the public domain, that is, the pool of entirely uncopyrighted and unencumbered works, available for anyone to freely use for any purpose.

Clearly what you're not doing, then, is "licensing" your software "using the Unlicense". That would be more than a bit nonsensical: how could your software be licensed and not licensed at the same time? It's either one or the other: strings attached or not. The Unlicense is intended to serve as an actual license only as a fallback strategy in backward jurisdictions that otherwise have trouble recognizing the right of authors to voluntarily waive all monopoly privileges enforced in their name by the state.

Yet we've now seen a project or two with README files that proudly claim "Copyright (c) 2010 J. Random Hacker. All rights reserved." in one sentence and then go on to quote from the Unlicense on the very next line, "This is free and unencumbered software released into the public domain." Needless to say, those two statements contradict each other in the worst way.

In fact, I think these specific examples just go to show how deeply imbedded the notion of copyright still is in Western culture, even as we're already otherwise taking the first stumbling steps towards a post-copyright world.

It seems likely that what the authors in question really meant to convey was simply the equivalent of "Written by J. Random Hacker". Writing that familiar "Copyright (c)..." had just become so ingrained a habit that it had practically supplanted the notion of "Written by..." in their minds -- and in the minds of countless others, myself certainly included in the not-too-distant past.

Still, the mistaken notion of "licensing something under the Unlicense" also demonstrates why the Unlicense is sorely needed in the first place, and why it has already enjoyed significant uptake over the course of this year: even if (at least in certain arbitrary regions of North America) releasing something into the public domain is, in principle, as simple as stating "I hereby...", that can still present too much cognitive dissonance for people thoroughly inculcated into the modern "license-to-live" frame of reference.

Thus "but everyone has a license file; hence I need a license file; what do I put in it?" is but one of the many practical questions the Unlicense seeks to answer for public-domain software projects, in essence backporting the copyright-free future into an easy-to-use format suited to the copyright-afflicted present.

It is perhaps both inevitable and necessary that, at this still relatively early stage in the ongoing decline of copyright as an institution, contradictory or confused statements like "licensing something under the Unlicense" abound. They may even be useful as conversation starters on how unlicensing code into the public domain is fundamentally different from merely choosing yet another random permissive license.

An apt contemporary analogy for elucidating the contrast between permissive licenses and the public domain might be the "manage subscriptions" and "unsubscribe" links in some newsletters.

A permissive license is like clicking "manage subscriptions" and unchecking every option save for "demand attribution". The Unlicense is like clicking "unsubscribe" and opting out of the copyright game altogether, ahead of the pack. The fallback strategy of treating the Unlicense as an actual license is just a workaround for broken unsubscription systems, making use of "manage subscriptions" to uncheck all possible options instead.

Perhaps in another decade or so our common discourse will have left the speed bump of licensing sufficiently far behind in the dustbin of history that the kinds of contradictions discussed here will be more readily and more widely recognized as nonsensical. The very name of initiatives like the Unlicense can help drive that change, bridging us of the last copyright generation to the bright and unlicensed post-copyright future.