Newbie questions...

Ravicher, Daniel B. DRavicher at
Wed May 2 20:47:30 UTC 2001


Not to be sarcastic, but good luck trying to delineate commercial from non.
The person who can do that is smarter than all 9 Supreme Court Justices (and
all the ones before them).  Just look at the "commercial" speech 1st
Amendment doctrine or the "commerce" clause line of regulation.  For
instance, did you know that a farmer in Iowa who makes hay to feed his own
animals (not to sell to anyone) is considered to be acting in "interstate
commerce"?  My point: trying to separate commercial from non-commercial use
is a waste of time (notice corporate law delineates profit from non-profit,
not commercial from non-commercial, and maybe this is a way for you to think
about).  Further, no matter what resolution you come to, someone else can
come to a reasonable conclusion which is diametrically different.  Hence,

IMHO, if mass-market cookie cutter product is your business, open source is
probably not the way to go.  If, however, you make money by providing a
service (such as idiosyncratic modifications of product for specific
customers; or training, to use the example of what you don't want people to
do), then open source may be the best alternative.  

Finally, I think it's key to ask yourself one question, why do you want to
open up your source code?   There are many benefits offered by open source,
but also many detriments.  Knowing these and how they fit with your business
model is key to figuring out what will be the right license for you.

I wish you the best of luck in whatever you decide.  And despite how others
in this community may feel (to which they are entitled), I'll always welcome
your questions and comments.

Take care,

Dan Ravicher
Brobeck, Phleger & Harrison, LLP
1633 Broadway, 47th Fl.
NY, NY 10019
p. 212.315.8032
f. 212.586.7878
mailto:dravicher at

-----Original Message-----
From: Ben Sawyer [mailto:bsawyer at]
Sent: Tuesday, May 01, 2001 7:54 PM
To: license-discuss at
Subject: Newbie questions...


I have a few potentially newbie questions I'm trying to sort out for writing
a license.  I've read as many of the licenses that I could find and I'm now
overflowing with information.  So I'm at the point of trying to clarify a
few things.

I have a project where we would like to publish the source code to the
project however we would like to restrict commercial redistribution or use
of any kind by its users.  Specifically we don't want the following to

1. User downloads software - recompiles and sends out the compiled software
to clients and charges them for it or makes it available as part of a
commercial program such as training, etc. (i.e. to get around the idea of
selling the software itself they give it away but charge for a training
session, etc.)

2. User downloads software makes changes and resells that full superset
version to clients.

What we want to do is encourage the following...

non-commercial community modifications which people could add on top of the
commercial version - or we might ask permission to compile into future

academic and discussion use of any kind (it's an educational product)

non-commercial personal use of any kind

We're also fine with people using segments of our code in completely
non-related projects or products so long as their is some level of

The big issue is the project needs to protect what revenue it does earn from
compiled sales of the software as a means of further support and it doesn't
want to confuse the market with other commercial spinoffs.

Any feedback about licenses or sections of licenses that help with this
would be useful.

Also I've looked at the Apple Public Source License which I know has major
faults among the open source community can anyone answer the following:

1. What specifically (sections if possible) is bad about this license
vis-a-vis the license itself and the community in general

2. Is there a license near this that is acceptable?

One of the big reasons I like the Apple License and a few other "big
company" licenses is that they've spelled out the warranty areas a lot more
specifically than some of the more general licenses have and that is
important given the background of some of the supporters of this project who
will need to absolve themselve as explicitly as possible of any issues
concerning reuse of the source code.

I know some of this may have been kicked around already but any help here
would be appreciated.

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