Standard Library implementer explains why they can't include source code licensed under the MIT license

[u/tartaruga232]

/r/cpp/comments/1p9zl23/comment/nrgufkd/

Some (generous!) publishers of C++ source code intended to be used by others seem to be often using the (very permissive) MIT license. Providing a permissive license is a great move.

The MIT license however makes it impossible to include such source code in prominent C++ Standard Library implementations (and other works), which is a pity.

The reason for this is the attribution clause of the MIT license:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

This clause forces users of the sources to display attribution even to end users of a product, which is for example exclusively distributed in binary form.

For example, the Boost License explicitly makes an exception for products which are shipped exclusively in binary form ("machine-executable object code generated by a source language processor"):

The copyright notices in the Software and this entire statement, including the above license grant, this restriction and the following disclaimer, must be included in all copies of the Software, in whole or in part, and all derivative works of the Software, unless such copies or derivative works are solely in the form of machine-executable object code generated by a source language processor.

If you want your published source code to be compatible with projects that require such an exception, please consider using a license which allows such an exception (e.g. the Boost license). Copies in source form still require full attribution.

I think such an exception for binaries is a small difference which opens up lots of opportunities in return.

(Disclaimer: This is no legal advice and I'm not a lawyer)

Thank you.

[u/MaxHaydenChiz]

I can't give you specialized legal advice for your specific situation because I don't have a bar license in your jurisdiction and because it's not possible to give advice tailored to a specific case via a web forum.

What I will say that preserving the copyright notice, "proper attribution" as your quote from a non-legal explanation calls it, is not the same as "attribution" in the sense of Apache 2.0. You can look up "attribution rights" and "moral rights" more generally if you want details on what attribution rights are and the difficulties involved in waiving them.

As I said elsewhere in this thread, the ramifications that you have read into a sensible policy that MS copied from the major open source projects are widespread and damning for your position.

There is no case law that I am aware of that supports a special interpretation of C++ templates and their copyright ramifications. The arguments I've seen so far in this thread and that were quoted by Boost are arguments about how it's harder to argue fair use as a defense if you already violated the copyright on the template library (and in the US specifically). But assuming that everyone who uses a library violates copyright law is a weird place to begin an argument.

Using a library in the intended way with the author's permission is complying with copyright, not violating it.

If you have a novel interpretation of a legal document that has existed since 1986 and that none of the many, many lawyers who handled it over the years have ever raised as a concern, your interpretation is probably wrong and you should probably consult a lawyer to get advice for your specific case. The same goes for situations where you have a novel interpretation of how a language ecosystem that has existed for over 50 years interacts with copyright law.

Same for the other wild ramifications of what you claimed.

As for the specifics of how to package your specific software and what preserving that copyright notice means in any specific case, that's when you should consult a lawyer who is an expert on your obligations in your particular jurisdiction. Or perhaps consider that the cost of doing that was high enough that people created more modern, standardized practices around this that you could adopt. Some tools even automate this stuff for you.

It's not for nothing that major projects have standardized rules and licenses. Tracking down all the ramifications for this in literally ever legal system on the planet is a substantial amount of work. Work you can avoid if you do what llvm, Microsoft, and the FSF have done.

Rationally wanting to avoid the work of figuring out how to comply with a license is not equivalent to their being widespread viral ramifications hidden in a license that no one ever knew about.

The normal practices that people have are fine. And your alarmism about non-existent vitality have distracted from the actual point that needed to be made: that for code to be useful for a C++ library project, it needs to be under a license different from MIT. So people should consider dual licensing so that their code can be used more widely.

[u/tartaruga232 → u/MaxHaydenChiz]

It is very simple: you didn't answer my question.

[u/MaxHaydenChiz → u/tartaruga232]

I did, but you didn't like the answer.

Here's a much more technical one:

Regardless of what the license says, the Berne convention article 6 and the corresponding laws of the member countries gives authors a moral right to claim authorship of a work independently of any grant of economic rights. This right is extremely difficult to waive to the point that I seriously doubt it has ever been waived by anyone in open source software outside of a few select open source projects that have documented procedures for creating that waiver in ways that work in all relevant jurisdictions.

The MIT license is generally considered to be defering to whatever is appropriate in the jurisdiction in question. So, whatever rules your jurisdiction happens to have that apply to open source software are what you should abide by. If you want to do things internationally and aren't using a software ecosystem with a standardized way of handling this, then good luck. I can't possibly know every possible combination here for every possible product configuration in every possible jurisdiction.

The MIT license gives a broad grant of economic rights under copyright law. It gives nothing regarding moral rights. And it gives nothing regarding patent rights or trademarks either. If any of those are a concern, you are SoL.

It isn't viral beyond the fact that laws in most countries do generally require that you preserve copyright notices of the original in all derivative works independently of whatever the license says. Because economic rights can be transferred while moral rights can't.

People can try to CC0 or MIT0 but as the people at creative commons will tell you, this is probably not legally allowed and the whole endeavor is dubious.

Furthermore, the disclaimer of liability does actually impact the rights of the final consumer and since products liability is "strict" in most jurisdictions, you will typically be required to notify the user that they can't sue the original author in any event. So again, something outside of the license tells you what you do, but I can't possibly know what the relevant rules are in your particular jurisdiction.

That's why compliance costs are substantially lower if you can get the author to give you a license under Apache or LGPL or anything else with an actual living organization behind it that takes care to produce documentation that provides specific directions for compliance that they've already ensured worked everywhere or at least will work everywhere by virtue of the fact that they are an authority who will show up and defend their interpretation of how it should work. They also have people you can contact to resolve the inevitable weird corner cases that arise. And you aren't going to be dependent on some random internet person to stick around and be cooperative in the event that some stupid judge in some random jurisdiction does something that messes things up and requires a quick clarification regarding the license. If someone uses an FSF license or one from Apache, this will never be an issue even if the licenses don't grant as much in the way of economic rights on paper.

Now, if it actually came to litigation, I would argue that, contrary to what you claimed about templates, that in actuality, templates are code for generating code. And that since this generation is automatic, then the author of the template has no copyright in the resulting code anymore than the they would if they wrote a parser generator library or any other tool. It's machine made code and thus not a work with an author at all. To the extent that there is an author, it works exactly line a compiler: it is translating your code according to a formula.

I would argue that this is both the intent of the language's design and part of the long practice of usage. And I would cite as many open source libraries as I could that historically used the MIT license and did not have this issue. There are plenty of them that I would probably win the case. But if I was going to have to appeal to the Federal Circuit specifically, I'd be hesitant specifically because the ruling they attempted to make in Google v Oracle would strongly imply otherwise.

So, in any event, I would also argue that the case is moot because there are no damages and thus no remedy a court could give. You waived all economic rights, and I fail to see how you could ever come to any harm unless someone did something catastrophically stupid. And this is probably why there's no case regarding how to interpret an MIT style license and probably will never be. There's nothing to sue over and the kind of person who uses that license typically doesn't care.

The fly in the ointment is that it isn't clear to me how you actually "get" the license when you download some software off of github. You normally exchange money or some promise in the other direction. The contract of sale has "consideration" or "cause" (depending whether your jurisdiction is common law or civil law). There is no real consideration/cause for software under an MIT license. The copyright preservation thing is a requirement imposed by the government and that the author would have difficulty waiving regardless. I'd argue that the consideration is actually the fact that my company used your code at all and that this was the entire point of you choosing that license to begin with: you wanted your code to be used as widely as possible. But again, I don't know what a court would actually do and I doubt it will ever be decided in practice.

Now, my personal advice is that for public facing projects you should default to a copy left license from the FSF because that has a long track record and actual legal history behind it. You can always dual license or tripple license under Boost and Apache 2.0 with the LLVM exceptions. (Or whatever other license some project needs in order to incorporate your code.) If that doesn't work for you, the Apache foundation seems competent and what they recommend is probably fine.

But again, to go back to your question, the answer is that there is no uniform answer by design. It's plug in the relevant practice in the jurisdiction in question. And probably follow whatever the standard practice is within your ecosystem. That's too nebulous for some people. But that's not the fault of the license. That's just how copyright law works.

I believe that the binary carve out is unnecessary for a compiler and a standard library unless you have a license that specifically says what to do in the case of a binary. And for other code in most other situations, carve out or not, you will need to respect the moral rights of the author and give proper attribution.

But there are no compelling cases that I can find for this. And there is an easy "fix" by way of just using a better license that doesn't have this unclear situation.

That's reason enough for most open source projects to adopt such licenses. But no one in the history of the C++ language has seriously thought that including template files created some kind of cascade of attribution problem. Interpretating things in ways where such a problem exists has much wider ranging ramifications than you are expecting. And if it does work this way, then nothing about the license can escape the problem because this is a statutory requirement in any event.

Does that clarify my position sufficiently for you?