Open Source Business Found Parasitic, and the ADCL

maa at liacc.up.pt maa at liacc.up.pt
Thu Mar 13 11:07:01 UTC 2003


Dear all:

On 2002-11-22 I originated the thread "The OSD and commercial use" on this 
list (license-discuss at opensource.org), about the problem of selling open 
source software. After lurking over the ensuing discussion (thanks guys) I 
promised to come back with my thereafter educated reflections. Here they are 
now, in the form of the teasing little article reproduced below.

In the meanwhile, the thread "Commercial license?" on comp.lang.ada (CLA), 
initiated on 2003-03-10, led me to the Ada Developers Cooperative License 
[Leif 2002], which I found astonishingly similar in gist to my individual 
efforts of a license conciliating open source and commercial software [Alves 
2003]. Namely I think both licenses meet with the same obstacles, which I 
describe in the article (see also the former OSI thread). So I'm also 
addressing the CLA posters. OSI people may skip the rest of this paragraph. 
Ada guys, I'm very fond of the idea of the Ada Developers Cooperative: let's 
give it a push! Robert, be sure to count me in as a "Ada capitalist". Victor, 
I think you'll find [Alves 2003] a "concise informal formulation" (not a 
*re*formulation of ADCL as you wanted, but an alternate formulation of the 
same gist). I have many more ideas relating to the ADC: is there a mailing 
list yet?

The thread on CLA had also the catalytic effect of making me finalize the 
article, which had been in 'pre-draft' form for some months.

Regards,
--MAA

OPEN SOURCE BUSINESS FOUND PARASITIC
--WORK IN PROGRESS--
Version 1maa (2003-03-12)
(C) Mário Amado Alves

(I intend to publish this text in a wider medium than this list, unless 
essential faults are found in it. I welcome any collaboration: “I” can change 
to “we”. The title is also changeable.)

I am an open source fan. I say this right away to clear up any impressions to 
the contrary given by the title. Specifically, I have the utmost respect and 
admiration for all existing open source businesses: RedHat, MySQL AB, etc. 
(trademark signs required?) It is not their fault that their business is found 
parasitic.

I am also a believer in intellectual property. Specifically, I believe that 
authors (copyright owners?) are entitled to a just compensation for the 
commercial use of their work.

So, naturally, I want to combine these two principles (open source and 
intellectual property). However, I have found this to be very hard, if not 
impossible.

In the rest of this text I explain the problem in detail, and propose 
solutions. Open source business being parasitic is just one aspect, risen to 
title status simply for its provocative appeal.

The current reflections are about open source in connection with the business 
of selling software; not support, or anything else that is associated with the 
software but that is not it.

Most open source licenses, including GPL, simply forbid selling the software. 
I have found no rationale for this.

Fortunately the OSD (Open Source Definition) does not forbid selling the 
software. (Or does it?)

However, because of clause 6 (no discrimination against fields of endeavor), 
the open source business must either sell to all recipients (including authors 
of derivative works?) or give away to all.

Because selling to all would in practice prevent open source benefits to take 
place, notably contribution from the community at large, the open source 
business has to give it away. Bye bye business.

Curiously enough, this effect of clause 6 is contrary to a certain 
interpretation of its own rationale, which is to allow open source to be used 
commercially. The interpretation is one whereby “commercial use” 
includes “selling software”.

Also, the general problem depends on an certain interpretation of clause 6 
itself, whereby “restrict” includes “requiring a fee”. (This interpretation 
seems fairly reasonable, but if it is wrong please let me know ASAP so I can 
start selling open source software right away.)

So, open source software cannot be sold, but this seems to be an unwarranted 
effect of the license terms.

I propose to look back at the open source rationalia, and revise the OSD terms 
in order to correct this effect.

Of course relaxing clause 6 to allow discrimination w.r.t. requiring a fee is 
a possible solution. It would be just a patch up, and I do not advocate to do 
it in isolation, but the hypothesis may point some directions.

Pending a clean solution, there exists an ‘emulation’ of the business of 
selling open source software: dual licensing.

Dual licensing: Copyright owners release under a ‘spreading’ open source 
license (usually GPL). Users wanting to sell derivatives must obtain a non 
open source (or just non spreading?) license.

Business: the ‘closed’ license is sold.

Problem: Only the copyright owners can sell the closed license. So the closed 
license vendor must own the copyright of all modifications made to their 
product (by the open source community at large). Is this feasible? Practical? 
Done? (MySQL?)

Another problem: The need to buy a closed license for X lies exclusively on 
the existence of (exclusively) closed software Y the buyer is joining with X 
to form a distributable or sellable product Z. If Y is opened, then Z must 
also be opened, and then, again, bye bye business. Corollary (unwanted?): the 
open source business (dual licensing) is parasitic on non-open source 
business. If everybody went open source, nobody could sell software!

BIBLIOGRAPHY

[Alves 2003]
Conditions of Use of MAA Artifacts : Version 3 (2003-03-12) / Mário Amado 
Alves. -- Internal document. -- (Reproduced here as Annex A.)

[GPL]
The GNU General Public License (GPL) : Version 2, June 1991 / (c) 1989, 1991 
Free Software Foundation. -- Internet, 2002. -- 6 p.

[Hecker 2000]
Setting Up Shop : The Business of Open-Source Software / Frank Hecker. -- 
Originally published May 1998, revised 20 June 2000 : Revision 0.8 : Draft. -- 
Internet, 2002. -- 35 p.

[Leif 2002]
Ada Developers Cooperative License : Version 0.31 (Draft) / Robert C. Leif. -- 
July 4, 2002; 
http://www.newportinstruments.com/ada_med/pdf/coop_license031.pdf, 2003. -- 12 
p.

[LGPL]
GNU Library General Public License : Version 2, June 1991 / (c) 1991 Free 
Software Foundation. -- Internet, 2002. -- 7 p.

[Malcolm 2002]
Problems in Open Source Licensing / Jeremy Malcolm. -- Internet, 2002.

[MySQL 2002]
MySQL Licensing Policy. -- www.mysql.com, 2002. -- 3 p.

[OSD]
The Open Source Definition : Version 1.9 / (c) 2002 by the Open Source 
Initiative. -- opensource.org, 2002. -- 2 p.

REVISION HISTORY
2003-03-12: finalized version 1maa

ANNEX A. Full contents of [Alves 2003]

Conditions of Use of MAA Artifacts

    Version 3 (2003-03-12)
    (C) Mário Amado Alves 

  1  General

    1.1  The gist of these conditions is: (a) an MAA artifact is distributed
    freely, but if (b) anyone makes money using it, then (c) the authors of
    the artifact are entitled to a just compensation. Here "free" implies
    "open source", as per the Open Source Definition by OSI, at
    www.opensource.org.

    1.2  The effective version of these conditions is, at any time, the most
    recent one that is not contrary to the gist described in 1.1. Henceforth
    "these conditions" denote the effective version.

    1.3  The use of any MAA artifact is subject to these conditions. The use,
    of an MAA artifact, not in accordance with these conditions, is an
    illegal act.

    1.4  An MAA artifact is any artifact claimed to be such by its authors.
    Any artifact authored exclusively by MAA has such claim made implicitely.

    1.5  Any copy of an MAA artifact must have a license for its use, as
    follows.

    1.6  A copy used in a business must have a specific license for that use
    explicitly issued by MAA. Such a license is called a "commercial
    license" and is explained in 4.

    1.7  A copy not used in a business has an MAA Non-Commercial License
    implicitly issued by MAA at zero monetary cost. Such license is defined
    in 2.

    1.8  The use of a copy is subject to the conditions defined in its
    license.

    1.9  "Used in a business" means being part of a commercial service or a
    commercial product, or being used in the process of creating, preparing
    or providing such service or product. "Commercial" means having the
    purpose or result of being sold.

  2  MAA Non-Commercial License

    2.1  This license defines the conditions of use of, a copy of an MAA
    artifact, not used in a business, as defined in 1. Henceforth such a copy
    is called "the artifact".

    2.2  The artifact may be copied or distributed. Any distribution must
    have a copy made publicly available in the Internet.

    2.3  If the artifact is a software program or component its distribution
    must include the entire source code of the artifact.

    2.4  The artifact may be modified as long as: (a) the modification is
    described with at least the date of the modification and the
    identification of the author of the modification, and (b) all
    pre-existing descriptions of modifications or creation, including
    copyright notices, are preserved in the modified copy.

    2.5  The modified artifact is still an MAA artifact subject to the
    current Conditions of Use of MAA Artifacts.

    2.6  The artifact must exhibit the MAA Artifact Notice defined in 3.

    2.7  A distribution of the artifact must include a copy of the current
    Conditions of Use of MAA Artifacts.

    2.8  A product containing the artifact, or a service using it, must
    advertise that fact. Note that if the product or service is commercial
    (as per 1.9) then 1.5 applies, and not this license.

    2.9  A product containing the artifact may be distributed under another
    license if and only if this other license respects the gist 1.1 of the
    current license and it is an open source license not less restrictive
    than the current license and MAA is notified.

  3  MAA Artifact Notice

    This is an MAA artifact. The use of an MAA artifact is subject to the
    Conditions of Use of MAA Artifacts, which the user must know in order to
    be in a legal state. These conditions are described in the file
    conditions_of_use_of_maa_artifacts.txt, or at maa.planetaclix.pt, or at
    AdaPower.Net/~maa, or upon request to amado.alves at clix.pt, or to
    MAA at AdaPower.Net, or to maa at liacc.up.pt, or to postal address Alameda dos
    Descobrimentos 490 R/C Esq, 4480 VILA CONDE, Portugal, or to phone number
    351-252646623.

  4  MAA Business

    4.1  The MAA business is the selling of commercial licenses for MAA
    artifacts. MAA is the only entity that can issue commercial licenses for
    an MAA artifact.

    4.2  MAA represents all authors of an MAA artifact when dealing with a
    prospective or effective buyer of a commercial license. A commercial
    license for an MAA artifact is not issued without the agreement of all
    authors of the artifact.

    4.3  All authors, of an MAA artifact subject to a commercial license, are
    entitled to the just monetary reward for their participation in the
    making of the artifact. This is negotiated between MAA and the authors.

    4.4  MAA is the entity identified in 3 and he is currently a Portuguese
    liberal professional named Mário Rafael da Silva Amado Alves with fiscal
    number 154089354. Eventually MAA may take the form of a company, but this
    will not significantly modify the Conditions of Use of MAA Artifacts.

REVISION HISTORY
2002-11-17: finalized version 2
2003-02-12: version 3 = version 2 + cosmetics


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