Pledge to only fund and create free software and free content

* How to explain what "free" means
* What to do about existing proprietary works?
* Private or confidential information
* A second pledge to restrict donations to those making first pledge
* Two further pledges about only using free works when possible
* Why the FSF probably would not sign that pledge as-is (opinion works)
* A group to refine the pledge
* Restrictions for likenesses of real people
* Moral rights issues
* Trademark issues
* An open letter I wrote related to this years ago
* Recent FSF actions and a conversation that remind me of this
* Chandler as a cautionary tale, but new explorations mean risks
* Similar pledges?
* An example of a pledge that has changed the face of US government
* This won't be easy -- a non-profit example from my own life
* Parallels to the GPL
* Feel free to move forward with this with me or without me

Sent to Richard Stallman of the FSF on 2015-12-28


The FSF could start a new campaign to get foundations and non-profits to pledge that all content and software they fund or develop for the public using charitable or public dollars will be released under free licenses.

One by one, foundations and non-profits could be approached and asked to commit to a pledge similar to the following:

"Our organization, ______, pledges to our our stakeholders and the people of the world that from this date forward, ________, whenever we use charitable or public dollars to fund or create any new content, software, or any other sort of copyrightable or patentable materials intended for public distribution and public use (or substantially modify existing public content), we will ensure those works will be distributed to the public under free/libre licenses. Free/libre licenses means those who receive the works have the freedom to use, run, copy, study, change, improve, redistribute, and/or distribute modified versions of the works without paying additional fees or obtaining additional permissions."

If the organization is not willing to sign the pledge, then that fact could be made known as well, along with their reasons. The FSF would keep such a list publicly available on its website of organizations that have been approached (and the date) and their responses (including the date they took the pledge or the reason for their refusal).

The FSF could recommend people only donate money to such organizations as have made that pledge. For non-profits already committed to making free works, being on this list would be a good way to advertise that fact.

With trillions of dollars expected to pour into foundations soon, this campaign might make a huge difference in funding for those who want to work on free/libre works.

More details are at the below link if you are interested, including one reason why the FSF would probably not sign that pledge as is, and suggestions as to how it could be further improved.

I CC'd Michel Bauwens because recent discussions with him helped spark this (as have recent discussions with you).

--Paul Fernhout

How to explain what "free" means

I'm sure the phrasing about what "free" or "libre" is could no doubt use further tweaking, or perhaps be replaced by some other reference to published materials. I put free/libre together just to be clearer given US English -- this would not be such an issue in another language that distinguishes better between libre and gratis.

What to do about existing proprietary works?

Another issue is what to do for a non-profit that is already selling a proprietary work. Do they have to freely license the work or does the pledge only apply to new works? What about changes to existing proprietary works with new money? That issue perhaps needs to be clarified beyond what is in the wording above.

Private or confidential information

Another related issue to consider is not preventing organizations from keeping internal information private (whether employee health issues or staffing discussions). A push to organizational transparency when appropriate is worthwhile (see for example the book "Honest Business" by Michael Phillip), but a separate issue. How to distinguish those situations requires careful wording of the pledge, and is why I used the phrasing "for public distribution and public use" above. So, if a non-profit board records internal minutes, they might be private, but if they publish some version of those minutes, they should be under free licenses.

A second pledge to restrict donations to those making first pledge

Individuals could also take a similar pledge regarding donations they make, that they will only donate money to organizations that have taken the organizational pledge.

There might be a variant of that second pledge that foundations and individuals might make as well, to only fund organizations that have also taken the pledge themselves. That is a much stricter pledge and would mean not being able to fund some free works that were done by organizations who had not yet signed the pledge. I'm not sure how such a second broader pledge made by foundations or individuals would work out, given non-profits may be slow to changed their policies and it might prevent new free works from being funded even when non-profits are still caught up in old ways of doing things for selling previous works. So, something for further discussion or perhaps future action once the first pledge was moving forward strongly and there were thousands of pledging groups already.

There is an overlap here a bit with the idea of "donor advised funds" as well, where funders make restrictions on what they will fund.

Two further pledges about only using free works when possible

There could eventually be a related third pledge about individuals or organizations only using free software, or using free alternatives in preference to proprietary ones when they exist, but that is a more complex topic. Such non-use pledges are different (if complementary) to this one and might be more successful after billions of more US dollars flow into the free ecosystem from this proposed pledge. It is probably easier to get a non-profit to agree only to release free works in the future than to get them to suddenly switch from proprietary fund raising software or such. As with the first two pledges, there could perhaps even be a fourth pledge to only donate to such organizations that have taken the third pledge (or maybe even the first, second, and third). Such other pledges might be a separate future campaign though eventually. Or perhaps there might be a way to make a package several related pledges that are incrementally harder to fulfill. But that all might be too hard to understand quickly. So, it seems to make sense to start with the first pledge, see how it goes, and perhaps have the other pledges ready at some point.

Why the FSF probably would not sign that pledge as-is (opinion works)

Naturally, the FSF could be the first signer of such a pledge (or a similar one if there is wording issues in the above). And if the FSF is not willing to sign such a pledge (even with appropriate rewording), please let me know why. :-) However, here is one reason the FSF might not sign the pledge as it is, "opinion licenses" which don't allow derivative works.

As in at the above link (linked from the FSF home page), the FSF has made a nuanced distinction between opinion works and functional works (for example, the FSF does not allow derivative works of its main page). Given that, how could the wording be improved to accommodate that concern while still being comprehensible and short? BTW, legal issues related to libel and misrepresentation still cover redistribution of opinion pieces (in that it is generally immoral and even possibly in some cases illegal to misrepresent what someone says), so in the case of public funding, it is still not clear to me it is really needed to have separate "opinion" licenses. An opinion license exemption opens up a whole broad avenue where people getting public money won't allow fixing typos, creating summaries, translations, perhaps reformatting of works, and so on. Note that even using a small clip of a video or a small part of a large testimony in another works violates something like the CC-BY-ND for the original work, given a part is derivative of the whole, and it may be impractical to include an entire long video or audio clip in another free work. So, perhaps there is a difference between publicly funded opinion works and privately funded opinion works?

Still, I would rather see such a campaign proceed with allowing opinion licenses by non-profits using tax dollars to write them (with a license that permits free redistribution verbatim) rather than see the campaign not go forward at all. So, as a first milestone, what sort of pledge in this direction would the FSF be willing to sign itself that accommodates a policy the FSF is currently following relating to public and charitable funds it receives? How could the pledge be changed and still be short to accommodate FSF's current presumably-best-possible practices?

A group to refine the pledge

After the FSF was willing to make such a pledge, then other like-minded groups of various sizes (both funding foundations and non-profits) could be approached to check that the pledge was agreeable as well, in case the wording needed further refinement. Once about ten or maybe a hundred groups had signed on privately (perhaps through a pledge working group), then the campaign could be launched in a big way, with a published list of initial signers.

Restrictions for likenesses of real people

Another aspect is that images of real people often may not be redistributed without permission of the people involved, even if the work may otherwise be freely licensed (NASA has examples of that). So, that is another concern in such a pledge.

Moral rights issues

Other countries also have "moral" rights related to artistic works, so something else to consider in a pledge. Again though, we are talking public dollars here. It is reasonable for the public to make some demands about works it funds. If artists don't like those demands, they could always get private funding.

Trademark issues

Also, trademarks are a separate issue intentionally not covered by this pledge, given a trademark of a successful non-profit is generally a very valuable asset they have developed. It does not usually limit people in any bad way not to be able to use someone else's trademark however they wish, given the purpose of trademarks to assure quality.

An open letter I wrote related to this years ago

I wrote an open letter about this topic more than a decade ago. Here is the executive summary from it:

"Foundations, other grantmaking agencies handling public tax-exempt dollars, and charitable donors need to consider the implications for their grantmaking or donation policies if they use a now obsolete charitable model of subsidizing proprietary publishing and proprietary research. In order to improve the effectiveness and collaborativeness of the non-profit sector overall, it is suggested these grantmaking organizations and donors move to requiring grantees to make any resulting copyrighted digital materials freely available on the internet, including free licenses granting the right for others to make and redistribute new derivative works without further permission. It is also suggested patents resulting from charitably subsidized research research also be made freely available for general use. The alternative of allowing charitable dollars to result in proprietary copyrights and proprietary patents is corrupting the non-profit sector as it results in a conflict of interest between a non-profit's primary mission of helping humanity through freely sharing knowledge (made possible at little cost by the internet) and a desire to maximize short term revenues through charging licensing fees for access to patents and copyrights. In essence, with the change of publishing and communication economics made possible by the wide spread use of the internet, tax-exempt non-profits have become, perhaps unwittingly, caught up in a new form of
"self-dealing", and it is up to donors and grantmakers (and eventually lawmakers) to prevent this by requiring free licensing of results as a condition of their grants and donations."

That letter is a shorter version of something I sent to the Markle Foundation in 2001 when they asked for comments about policy for a networked society:

Recent FSF actions and a conversation that remind me of this

I was reminded of all that ancient history by the FSF's recent excellent letter to the US Department of Education on ensuring works created with public tax dollars would be put under free licenses (which I was just pointing out to Michel Bauwens, CCd):

While I applaud what the FSF wrote there, it is a bit ridiculous that people still have to make the point these days that public dollars should be spent to make content freely usable by the public.

As I wrote yesterday to Michel, I look through help wanted ads for programmers and, reading between the lines, mostly I just see companies hiring people to help them create and contain digital slaves for profit. :-( An example is with Slack as the new company on the block with US$340 million invested in it to centralized all real-time communications with proprietary software under a problematical Terms of Service, whereas that amount of money could have made a successor to IRC that was truly free and open and easy to use and peer-to-peer (as much as desired) and so on. After decades of a free software movement, why is this still an issue? Granted private dollars can go where they want (subject to laws), but, in thinking about Thunderbird, it is becoming clearer to me that even though software can be profitable to write and sell, it should really be foundations and governments that are funding most of it in the public interest (especially given how cheap it is to redistribute software once it is written, and the benefits of software that interoperates according to standards -- the web browser wars and the history of JavaScript showing how much time can be wasted when that cooperation doesn't happen because of commercial competition). So, I'm really coming around to the feeling that even if there is a lot of venture capital around to create information technology because it is profitable to centralize users and make them dependent, it is really governments and foundations that *should* be funding all this technology investment as FOSS in the public interest (or via a basic income so citizens have time to do it themselves).

This pledge could help change that landscape.

Wile this idea of getting foundations to fund only free works is old to me, the "pledge" idea is new from today, arising after corresponding with Michel Bauwens and reflecting on that correspondence, and also corresponding recently with you, Richard, on Mozilla and Twirlip/Thunderbird-Server (thanks again for all the replies on that), and reflecting on the sad state of affairs that Slack can still turn the head of Automattic (which makes its money by supporting the FOSS WordPress software).

Chandler as a cautionary tale, but new explorations mean risks

Still, as a cautionary tale, Chandler was funded as a non-profit (Open Source Applications Foundation) by Mitch Kapor and became a failure as far as software delivered (for all the many reasons software project can fail given software is hard, even as it is also difficult to see how they could blow through eight million dollars with so little to show for it). However, Chandler was still a failure trying to do the right thing in a the right way. One has to expect failures when new areas are being explored.

Still, there is a less-visible result of the eight million dollars. A bunch of employees learned a lot about working with free software. They may have brought that to new places, and that may have led to new successes.

If a big foundation put many billion of US dollars into better communications and PIM software, there will almost certainly be a lot of failures. Still, we might see amazing things as alternatives to proprietary projects like Slack. Volunteers can write free software (and there are several Slack alternatives), but any significant codebase can rapidly become so complex (including supporting and testing on many platforms), and successful projects can acquire so many demanding users, that trying to support successful free software project just by volunteers who do other programming as day-jobs is problematical IHMO. Better architecture can help (especially modular architecture), and better testing approaches can help, and better underlying libraries and cross-platform technologies can help, but they only go so far.

Free software is just one area of society though that foundations fund. So we might see improvements in other areas with eventually free content being able to crowd out non-free content.

Similar pledges?

I do not know of any similar pledges out there. However, there might be. So, an initial part of any effort would be to catalog what is already out there as to pledges related to free works. Also, in general, it could be good to know of what pledges in other areas have succeeded or fizzled and why.

An example of a pledge that has changed the face of US government

Whatever one thinks of the politics of Grover Norquist's "No New Taxes"
pledge taken by most US Republicans, it is an example of a "pledge" that has had an enormous impact on US politics:
"Norquist's Tax Pledge: What It Is and How It Started"

If this free works pledge reached the point where donors looked for it before giving money, the free ecosystem might expand greatly.

This won't be easy -- a non-profit example from my own life

I've been a trustee of my local historical society for the last five years. The area is rural, with a deep history in old farms and rural businesses held together with scrappy entrepreneurship and small exchanges (as well as some centuries-old family ties). Our board has been mostly retired individuals on up who are not that computer literate.

I've brought up the issue of how a non-profit chartered as an educational institution ideally should be distributing its information for free several times. The president (a wonderful person who has put a lot of volunteer time into the organization) and others on the board have still moved ahead with an effort to sell a DVD. That group put great effort into cataloging pictures for that DVD, and now is playing around with putting music on it and so on. But the organization is not making that information available on the website (I've mentioned the idea several times). The production of those DVDs are also going to be done with dollars donated to the non-profit by the widow of the man who collected them all in the first place. A lot of work has gone into the DVD, and it looks like it will be a really nice product.

I don't actually object to selling a DVD. I feel it's actually an excellent idea, especially as I feel people who live in the area and visit it will buy the DVD because it is convenient and well done. People like to feel good about their home town. Also, other people will buy the DVD when they are feeling good about the society in the moment and want to support the society like at our events. The issue is whether the contents are free/libre and whether they are available in other ways like through the web.

It's a tremendous amount of work going into the DVD, and I respect that. It is also in part because I respect that work that I want it to be shared with the rest of the community and the world. But, there is still a cultural attitude that says, if you respect work, you will pay for it (or otherwise it is worthless). Both are actually true sentiments in different contexts and both are valid moral positions in various contexts -- even if these sentiments conflict in the digital age when one thinks about the difference between an exchange-based economy with high incremental production costs and a gift-based and/or planning-based economy with nearly zero incremental production costs and where it is easy to make and distribute derived digital works.

Despite that fundamental disagreement, I still participate as a trustee, helping ensure our two museums keep going, and helping preserve our covered bridge and the nearby shop building where a first reliable railroad air brake may have been invented (controversial). That is important work for the community for all sorts of reasons, and I do it -- but, given my long-standing interest in free and open source software and content, my heart is just not in the organization's strategy of selling information. Part of that is because I myself don't want to be creating non-free stuff for free for an organization that IMHO should be giving out stuff for free as part of its mission. And without up-front work to clear licenses and so on, I know the results of collaborative work can be a mess to free later, so I see some of the hard work may get discarded. Also, anything I develop in that context as a volunteer potentially the organization might claim ownership and then try to sell. So, from that disconnect, the organization loses out in potentially hundreds or even thousands of hour worth of donations in time from me (as a trustee) and my wife (who is curator) compared to if we had really believed in the organization's approach as far as how it is operating in emphasizing the collection and distribution of free information. We both could have done amazing things if the group has decided to freely share; instead we put in time but stay distant. While it is hard to put a price on volunteer time, and it is not tax-deductible, that potentially is US$100K or so in time that the society is not receiving as a donation.

This is a small organization with a budget of a few thousand dollars a year, mostly funded by bake sales and related things. Our biggest single annual expense is actually just insurance. US$5000 or whatever from a DVD (assuming it even sells well enough to pay for production, so like selling 400 copies or so over the next decade) would be a big thing financially to the organization -- even if it means potentially depriving millions of people of access to our area's history through promoting "artificial scarcity". And it is easy to see, say, US$5000 in the bank account, but hard to account for hundreds or thousands of hours of volunteer time that never happens (whether by myself, my wife, or by others who I otherwise might have recruited to do free/libre stuff like, say, a Voxel.js model of our town during different historical times).

Meanwhile, historical societies are falling to the right and left of us as members get old and get sick or die and it is hard to recruit new ones given the competition of TV and the internet, and now with most families having two spouses in the workforce, and whatever else has reduced or shifted volunteer time in the USA. Of course, that situation just gives the rest of the board even more incentive to think this educational society might best survive by creating yet more artificial scarcity of education to keep bringing in more revenue as the bakers who have been the mainstay of our funding sadly disappear. I was asked to be on the board to replace one of the best and most generous bakers, who had sadly passed away.

A loaf of bread is easy to understand as a tangible contribution to the society. Suggestion about giving stuff away for free, by contrast, probably seem like negative contributions from a certain economic world view. :-)

Our town historian has over the years written hundreds of warm wonderful well-written educational essays about rural life in the area (not sure how much of that was written as part of her tax-funded duties). She has offered to give them to the society to make a book. However, I expect the same thing may happen with them -- creating more artificial scarcity to sell a book to raise a few dollars for the short-term. Whereas otherwise, I could put all those essays up on our website *today* and people could be enjoying them, and we might have a rare and wonderful resource that might potentially bring dozens of new members into the society in the next year and perhaps a bunch of donations. Instead, someday, years from now, maybe there may be a book that not that many people buy or even know about.

It takes a lot of work to promote a book. My wife spent several person-years making a free text book (under a Creative Commons license). As is typical with most non-profit book sales, a few hundred copies a year generally means you are doing very well. Most people who write non-profit books do it because it benefits their career and/or because they have a passion about a topic and for helping people understand it, not because it will make them much money. Printed books can make sense to write, but there is little reason these days not to make the content available in additional ways that makes it easier to reference or comment on.

I hope the attitude of the board to freely sharing information with the community will change eventually, but I sadly doubt it will soon. There is a huge cultural divide, where most of the board see nothing wrong in selling information about our area's history, and in fact, likely think it is a good idea as it relates to promoting history. And I have to admit there is no question that selling things about local history indeed actually does help educate people, even if alternatives might do that better (instead of, or in addition to, such sales). Lately I've been thinking about this analogy that a non-profit is like a cross between a small business (which sells stuff) and a church (which gives stuff but hopes for donations), and that you have to decide for each non-profit where that line will be. I'll see how that analogy goes over when I pitch it. :-)

This conflict over policy (libre vs. sales) is just a bad situation all around -- bad for me, bad for the organization, bad for the community, bad for the world. I'm sad about the whole thing. I want my historical society to succeed. It is a good society, with good people -- people who really care about the area and the community and history. People who want to do the right thing based on their past experiences, even if those ideas might not make as much sense in a digital age (and hopefully in an increasingly post-scarcity society). And I have little doubt hundreds of thousands of non-profits and their board members are all in the same situation.

So, I know first hand this process of getting non-profits to make such a pledge will be hard. But I also know that if foundations made that pledge first, and then said to my local historical society, we'll only fund you if you give out the results under free licenses, and also if the original donor of money to that went into the DVD said the results need to be under a free license, the organization would probably turn on a dime and start giving out stuff under free licenses. Selling stuff is a habit, but these are also generous people who volunteer their time to be on the board and to prepare the DVD. And the organization might still sell just as many free/libre-licensed DVDs -- maybe even more. And that would have been a project I would have really wanted to help with.

Sometimes you really need the outside contract from a funder to make the inside of the non-profit work the way it ideally could. The US cultural norms these days are just tilted more towards exchange transactions rather than to subsistence, gift, or planned transactions, and given that most local non-profit board members are heavily steeped in that culture from birth. Still, exchange culture is not the only cultural influence -- as above, the church analogy is powerful in a rural setting too. But it may take some effort to find the best way to draw good reasonable parallels to the non-profit world and how it could operate.

I'm still not going to give up on my local historical society, but it is a challenge to figure out how to make the case for "libre" free works -- even for a non-profit, given US culture, and especially some rural traditions. So, I know this campaign is going to be hard, even as there is no doubt some well-known organizations that might sign such a pledge right away (like the FSF once the wording on the pledge is worked through). And if there was such a pledge, along with supporting documentation, and a list of foundations that expected non-profits to make free works, then the case might be easier to make to my local non-profit board.

As is said, "A prophet is without honor in his own country." :-)

Parallels to the GPL

In a way, this pledge is similar to the General Public License. The GPL has been a way to get people, especially university employees, to share improvements they make with the software even when their organizations might have a short-term financial imperative to suppress the free distribution of information. Like the GPL, the pledge helps organization's staff do what they should be doing as participants in an intellectual commons with a great emphasis on gift giving and planning rather than exchange. And the more foundations and non-profits that make the pledge, the easier it will be for others to make the same pledge to inter-operate with them.

This also connects with the history of university funding relating to the Bayh-Dole act and a related cultural shift towards expecting to bring in more revenues by commercializing research (as a negative trend behind some of this, compared to just insisting then that all government funded research would be made freely available):

Feel free to move forward with this with me or without me

I'd be willing to run such a campaign myself, but I don't have the personal funds at the moment for it, nor could I probably afford to move my family to around Boston if it was run out of the FSF offices.

Nor might I even be the best person for it. I'm more of an introverted type preferring activities like programming or writing long articles -- although on the other hand, having a Princeton degree might provide a way to open some doors with some foundations perhaps. I'd much rather be coding than lobbying overall; yet, such an effort is something I've been thinking about on-and-off for over a decade as far as perhaps presenting to foundations on why they should only fund free works.

As above, my track record with convincing even a local non-profit I'm on the board of to give away information under free licenses so far is unfortunately poor (even if I give away most of what I work on personally for free). Quite possibly someone more charismatic might have succeeded at that challenge where I have so far failed.

So, given all that, the FSF should feel free to take this idea and do what you can with it whoever is best situated and persuasive enough to run such a campaign.

Such an effort might be the single biggest game-changing campaign the FSF ever did, but only made possible by all the prior good work the FSF has done, if the campaign led to literally trillions of dollars pouring into free software and free content development.

Forgive the reference to "open source" in the title of this article, but this is something to consider to show the scale of what is at stake here:
"Is Open Source the Answer To Giving?"

"Mark Surman, Shuttleworth Foundation fellow, writes that open source is the answer to philanthropy's $55 trillion question: how to spend the money expected to flow into foundations over the next 25 years. While others have lashed out at 'Philanthro-Capitalism' — claiming that the charitable giving of Gates and others simply extends power in the market to power over society — Surman believes that open source shows the way to the harmonious yin-yang of business and not-for-profit. Sun, Microsoft, Cisco, IBM, Yahoo, and Facebook are big backers of Creative Commons; Mozilla has spawned two for-profits. Open source shows that philanthropy and business can cohabit and mutually thrive. Indeed, philanthropy might learn from open source to find new ways to organize itself for spending that $55 trillion."

So, we're talking literally trillions of dollars here that might go to free software and free content if this campaign succeeds broadly, as opposed to going into yet more proprietary content that competes with free content.

Feel free to share this email or parts of it under a CC-BY-SA 3.0 or later license or request different licensing if needed for some reason.

--Paul Fernhout

The biggest challenge of the 21st century is the irony of technologies of abundance in the hands of those still thinking in terms of scarcity.