# Palimpsest as Evolution of Open Source Licensing: A Position Paper

## Executive Summary

The Palimpsest License represents the next evolution in open source licensing—one that acknowledges the profound transformation of creative work in the age of artificial intelligence whilst preserving the collaborative spirit that has always defined the commons. This position paper argues for recognising consent-layer licensing as a necessary advancement of open source principles, not a departure from them.

**Key Arguments:**
- Open source principles must evolve to address AI training and derivative generation
- Consent is not restriction—it's infrastructure for sustainable creativity
- The Palimpsest License extends, rather than contradicts, open source values
- Recognition by OSI would legitimise creator protections in the AI era

## 1. The Historical Context: Why Open Source Needs Evolution

### The Original Promise

When the Free Software Foundation and Open Source Initiative established their foundational principles, they addressed a specific problem: proprietary software restricting users' freedoms. The four essential freedoms—to run, study, redistribute, and improve software—were revolutionary precisely because they challenged extraction and enclosure.

The open source movement succeeded because it aligned ethical principles with practical utility. Developers could build on each other's work. Knowledge could flow freely. Innovation accelerated.

### The New Frontier: Creative Works in AI Training

Today, we face a different form of extraction. AI systems ingest creative works—text, images, music, code—to train models that generate derivatives without attribution, compensation, or consent. The scale is unprecedented: billions of works consumed, their patterns extracted, their creators erased.

This is not the collaborative commons the open source movement envisioned. This is industrial-scale appropriation dressed in the language of "openness."

### Why Traditional Licenses Fall Short

Existing open source licenses (MIT, GPL, Apache, BSD) were designed for software source code, not creative expression. They assume:
- Clear derivative relationships (modified code retains visible ancestry)
- Human-readable outputs (you can see what changed)
- Attribution through headers and documentation
- Transformation through editing, not statistical pattern extraction

None of these assumptions hold when a neural network ingests your novel to generate "similar" prose, or your photograph to create "derivative" images. The traditional open source model lacks the vocabulary—and the mechanisms—to address AI training as a distinct form of use.

## 2. The Consent Layer: Infrastructure, Not Restriction

### What Is a Consent Layer?

The Palimpsest License introduces a **consent layer**: a framework requiring explicit permission for certain categories of use, specifically:
- **Non-Interpretive (NI) systems** (Clause 1.2): AI systems that generate derivatives without human creative direction
- **Training data usage**: Ingestion of works for model training
- **Metadata preservation** (Clause 2.3): Maintaining attribution and lineage information

This is not digital rights management (DRM). This is not anti-sharing. This is **structured permission** that makes invisible uses visible and accountable.

### Consent as Open Source Infrastructure

Consider the parallels with existing open source practices:

| Open Source Practice | Palimpsest Consent Layer |
|---------------------|-------------------------|
| Contributors sign CLAs (Contributor License Agreements) | Users request consent for NI system use |
| Copyleft requires derivative code to remain open | Metadata must travel with derivatives |
| Attribution required in redistributed software | Emotional lineage preserved through generations |
| GPL enforces "share-alike" conditions | Consent propagates through derivative chains |

The GPL doesn't grant unlimited freedom—it requires reciprocity. Similarly, the Palimpsest License doesn't prohibit use—it requires **meaningful consent** for uses that fundamentally transform the work's nature.

### Distinguishing Freedom from Extraction

Open source has always drawn boundaries. The question is where.

- **GPL:** You may use this freely, but if you distribute modified versions, they must be open too.
- **Apache:** You may use this freely, but you must preserve copyright notices and disclaimers.
- **Creative Commons BY-NC:** You may share and adapt this, but not for commercial purposes.
- **Palimpsest:** You may use this freely, but if training NI systems, you must obtain consent.

Each license defines "freedom" differently based on what it's protecting against. The Palimpsest License protects against **pattern extraction** that severs the connection between creator and creation.

## 3. How Palimpsest Extends Open Source Values

### Transparency

**Open Source:** Source code must be readable and modifiable.
**Palimpsest:** Training datasets and model architectures using creative works must be disclosed (Clause 1.2).

### Community Governance

**Open Source:** Projects governed by maintainer collectives, foundations, or elected boards.
**Palimpsest:** Stewardship Council (7 members: creators, legal experts, technologists, cultural advocates) governs license evolution.

### Derivative Works

**Open Source:** Modifications must be documentable and attributable.
**Palimpsest:** AI-generated derivatives must preserve metadata chains linking back to original creators (Clause 2.3).

### Sustainability

**Open Source:** Dual licensing, donations, and commercial services sustain projects.
**Palimpsest:** Consent framework enables creators to negotiate terms for AI training whilst keeping work accessible for human use.

### Copyleft Mechanism

**GPL:** "Viral" licensing ensures derivatives remain open.
**Palimpsest:** Emotional lineage and consent requirements "travel" with derivatives, ensuring ongoing creator recognition.

## 4. Why Palimpsest Is Open Source, Not Proprietary

### Common Misconceptions

**Misconception 1:** "Requiring consent makes it proprietary."
**Reality:** GPL requires sharing modified code. Creative Commons requires attribution. All open licenses impose conditions. Consent for NI systems is simply a new, necessary condition.

**Misconception 2:** "It restricts freedom."
**Reality:** It restricts *extraction*, not *use*. You can still:
- Read, share, and remix the work for human creative purposes
- Use it in educational contexts
- Build upon it with attribution
- Create human-directed derivatives

What you cannot do without consent is feed it into a black-box system that erases its origin.

**Misconception 3:** "It's legally unenforceable."
**Reality:** Every open source license relies on copyright enforcement. Palimpsest simply extends those mechanisms to AI training contexts.

### What Palimpsest Shares with OSI-Approved Licenses

1. **No discrimination against fields of endeavour** (with nuance—see below)
2. **License must not be specific to a product**
3. **License must not restrict other software**
4. **Licence must be technology-neutral** (targets behaviours, not specific AI architectures)
5. **Preservation of attribution** (core to both OSI principles and Palimpsest)

### Where Palimpsest Necessarily Diverges

The Open Source Definition (OSD) states: "The license must not restrict anyone from making use of the program in a specific field of endeavour."

This principle was designed to prevent restrictions like "no military use" or "no commercial use." It ensured software could be applied universally.

**But AI training is not a "field of endeavour"—it's a form of consumption.**

Training a model on a dataset is not analogous to *using* software to achieve a goal. It's analogous to *compiling* source code to create a new binary—a transformation that creates a derivative work.

The OSI never intended to forbid conditions on *how derivative works are created*. Indeed, GPL enforces exactly such conditions: if you create derivatives, you must release them under GPL too.

Palimpsest simply extends this logic: if you create derivatives through NI systems, you must obtain consent and preserve metadata.

## 5. The Case for a "Consent-Layer" Category

### Expanding the Open Source Taxonomy

We propose OSI recognise a new category: **Consent-Layer Licenses**.

Just as we distinguish:
- Permissive licenses (MIT, BSD, Apache)
- Copyleft licenses (GPL, AGPL)
- Hybrid licenses (MPL, EPL)

We should recognise:
- **Consent-layer licenses** (Palimpsest, and future similar frameworks)

These licenses:
- Permit broad human use and collaboration
- Require consent for automated pattern extraction (AI training)
- Preserve attribution through derivative chains
- Balance creator protection with cultural commons

### Benefits of Recognition

**For Creators:**
- Legitimacy and legal clarity
- Standardised language for AI-era protections
- Compatibility with open source ecosystems

**For AI Developers:**
- Clear consent mechanisms (no legal ambiguity)
- Pathway to ethical training datasets
- Reduced litigation risk

**For the Commons:**
- Sustainable creator participation (people can share without being exploited)
- Cultural works remain accessible for human use
- Precedent for ethical AI development

**For OSI:**
- Leadership in defining next-generation licensing
- Relevance to non-software creative domains
- Alignment with global AI ethics movements

## 6. Addressing Potential Objections

### "This creates fragmentation."

**Response:** Fragmentation already exists. Creative Commons, GFDL, and numerous other licenses govern creative works outside OSI's purview. Palimpsest doesn't fragment—it *bridges* software and creative licensing by applying open source principles to AI-era challenges.

### "It's too complex."

**Response:** GPL is complex. AGPL's network copyleft is complex. MPL's file-level copyleft is complex. Complexity is acceptable when it serves a necessary purpose. Palimpsest's consent layer addresses real harms that simpler licenses cannot.

### "Consent is subjective and unworkable."

**Response:** Consent is already foundational to contract law, medical ethics, and data protection (GDPR). We have robust frameworks for managing consent. Palimpsest simply applies them to creative works.

### "AI companies will ignore it."

**Response:** AI companies ignore GPL too, until they face lawsuits. The solution is enforcement, not abandoning protection. Palimpsest provides legal standing for creators to challenge misuse.

### "It's not truly open."

**Response:** "Open" has never meant "unconditional." GPL isn't fully open to proprietary vendors who want to close modifications. CC-BY-NC isn't open to commercial exploiters. Every license defines its boundaries. Palimpsest draws the line at industrial-scale pattern extraction without consent.

## 7. Roadmap for Recognition

### Phase 1: Community Dialogue (Months 1-6)
- Present Palimpsest to OSI community forums
- Gather feedback from license-discuss mailing list
- Engage with OSI board members informally
- Publish case studies of Palimpsest adoption

### Phase 2: Formal Proposal (Months 7-12)
- Submit Palimpsest for OSI License Review Process
- Address technical and philosophical concerns
- Demonstrate real-world usage and compliance
- Build coalition of supporting organisations

### Phase 3: Taxonomy Expansion (Months 13-18)
- Propose "consent-layer" category in OSI documentation
- Develop guidance for evaluating similar licenses
- Establish criteria distinguishing consent layers from DRM
- Integrate into OSI's license chooser tools

### Phase 4: Ecosystem Integration (Months 19-24)
- Package manager support (npm, PyPI, etc.)
- GitHub/GitLab license recognition
- SPDX identifier assignment (PALIMPSEST-0.4)
- Legal template libraries

## 8. Conclusion: The Next Chapter of Openness

The open source movement has always been about **power**—who has it, who abuses it, and how we redistribute it.

In the 1980s and '90s, power meant controlling access to source code. Proprietary vendors locked users out. The free software movement unlocked those gates.

Today, power means controlling how creative works are transformed by AI. Tech giants ingest our expressions to train models that replicate our patterns without recognition or reward. The Palimpsest License is about unlocking a different set of gates—not to restrict sharing, but to prevent **industrial-scale extraction dressed as collaboration**.

**Open source is not a dogma. It's a strategy for sustaining the commons.**

The Palimpsest License sustains the commons for creative work in the AI era. It deserves recognition not because it perfectly fits existing categories, but because it addresses real harms those categories never anticipated.

We invite the Open Source Initiative to lead the next evolution of openness. Recognise consent-layer licensing. Expand the taxonomy. Protect creators without abandoning principles.

The commons will be stronger for it.

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## Appendices

### Appendix A: Comparative License Analysis

See companion document: `license-comparison.md`

### Appendix B: OSI Advocacy Strategy

See companion document: `osi-advocacy.md`

### Appendix C: Campaign Timeline

See companion document: `campaign-timeline.md`

### Appendix D: Coalition-Building Strategy

See companion document: `coalition-strategy.md`

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**Document Version:** 1.0
**Date:** November 2025
**Authors:** Palimpsest Stewardship Council
**License:** CC BY 4.0 (This position paper itself is freely shareable)

**Contact:**
For dialogue: [governance@palimpsest.license]
For formal submissions: [osi-submission@palimpsest.license]
