Open source + commercial

Rod Dixon rodd at
Fri Sep 14 21:43:58 UTC 2001

I would not advise confusing "commerce" and "commercial." The Commerce
Clause refers to an entirely different matter than what Steve asked. Sure,
defining non-commercial is not easy, but it's done all the time because
laws require the distinction to be made. For example, a trademark
anti-dilution claim must show a use in commerce that is also a commercial
use. What that means is the Trademark holder shows that someone is
diluting their mark in interstate commerce and that the dilution arises
from a commercial use. A parody of a famous trademark on a popular website
might be deemed in commerce, but it's likely (although not definitely)
to be deemed non-commerical use since a parody is often considered a use
for comic effect. The point is every plaintiff claiming anti-dilution must
show those elements of the claim. It's difficult, but not impossible.

I do agree with Daniel in one respect: I am unsure whether it's useful to
draw the commercial/non-commercial distinction in the context of a
software license, where enforcement is going to be formidable. If the goal
is to lock-out commercial competitors, why not try a M$ license? (Just
kidding). It's not clear why you want to make the distinction you asked
about so it's difficult to suggest a license.


On Fri, 14 Sep 2001, Ravicher, Daniel B. wrote:

> 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,
> litigation.
> I wish you the best of luck in whatever you decide.
> Take care,
> --Dan
> 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: Steve Lhomme [mailto:steve.lhomme at]
> Sent: Friday, September 14, 2001 8:12 AM
> To: license-discuss at
> Subject: Open source + commercial
> Hi,
> I'm a bit new to software licenses.
> I've investigated through all the usual OSI-approved software licenses and I
> still haven't found what I'm looking for.
> I thought the QPL would fit, but after reading it carefully, it doesn't seem
> like.
> What I'm looking for is a Free Software license, that enables anyone to
> use/modify/publish the source code, but only for non-commercial products.
> And
> if anybody wants to use it in a commercial product, they have to pay
> someone.
> Does something like this exist ? Maybe it was the other Qt license which may
> not be OSI-approved ?
> thanx in advance
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