Yes, open-source licenses are boring, complicated, obtuse and multiplying in number faster than porn spam. But they are also the heart of the flourishing open-source software scene. The way they are used, or more to the point, the way they are not abused, is worth paying close attention to. Particularly if you are part of an industry like, say, the music business, where there currently seems to be a wee problem of copyright violation.

Never mind the endless, mind-numbing subtleties. You don't really want or need to know that the Sun Community Source License treats derivative rights (the right to make new software programs based on the original source code) differently than the Mozilla Public License. You don't have to care that there are actually two versions of Richard Stallman's famous GPL -- the strict, original version untrammeled by compromise, and the more industry-friendly LGPL. Once you've had the basic parameters explained -- on this side, the side of ideological purity, there is the GPL, and on that side, the side of lenient pragmatism, there are the BSD-style licenses -- you know more than enough to stay, in the words of hacker Eric Raymond, "fat, dumb, and happy."

But the longer I puzzled over the various licenses described by Rosenberg, and the longer I mulled over a brilliant essay on the potential legal enforceability of such licenses by Steve Lee, the more I began to be amazed at the deep structural weirdness that clings to the world of open-source licensing. Open-source licenses are the practical foundation of the open-source infrastructure -- and yet at the same time they are almost abstractly irrelevant. For all their carefully crafted clauses, all their painstaking attempts (particularly in the cases of the licenses concocted by commercial companies) to balance various interests, and all the endless digital hot air that has been expended in holier-than-thou license flame wars, not a single one of these licenses has yet been tested in court. No one knows if they will actually work.

We know the software works. But do the licenses really ensure survival in an ever more litigious age? We have no idea. And yet free software is thriving. How is that? One answer is that it's not the legal standing of licenses that makes people respect them -- it's the consensus that the rules the licenses codify are essentially fair.

That's the lesson that the entertainment industry needs to have drummed into its collective behind. It's well established that nobody trusts record companies. So despite the hundreds of millions of dollars spent trying to prop up copyright through legislation, lobbying and lawsuits, nothing seems to work.

The record companies need to take a different approach. They must create a system that people will believe in. Force won't work -- in the digital age, it can't work. And while a good license that's part of a fair system can't enforce ethical behavior, it can, in significant ways, encourage it.

The Free Software Project
Read Andrew Leonard's book-in-progress on Linux and open source -- and post your comments.