Open Source Business Found Parasitic, and the ADCL

[maa at liacc.up.pt]

This time I'll fight back on the spot ;-)

Quoting John Cowan <cowan at mercury.ccil.org>:

> maa at liacc.up.pt scripsit:
> 
> > Most open source licenses, including GPL, simply forbid selling the
> > software.  I have found no rationale for this.
> 
> This is simply false. . . .

It may be false, but not simply ;-) I'll check and get back on this soon.

> > 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.
> 
> Section 6 means that the *license* must not discriminate against fields of
> endeavor:  it cannot have clauses saying "This program may not be used
> by nuclear physicists or long-distance runners", for example.  It does
> not mean that software *retailers* cannot discriminate.  The FSF, for
> example, does discriminate: it will sell you software at one price if
> you are an individual buying for individual use, and another if you are
> a corporation or an individual buying for corporate use.

I don't understand the difference between discrimination by license and 
discrimination by retailer. If the retailer (vendor?, licensor?) is selling 
under the license surely they cannot discriminate!

> Price discrimination (if you can pull it off) is the standard way of
> extracting consumer surplus: sell cheaply to the poor and expensively to
> the rich, as airlines and wire services (full disclosure: I work for a
> wire service, Reuters) do.

Irrelevant.

> > 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.)
> 
> You can certainly sell open-source software for all the traffic will bear.
> You just can't extract monopoly rent from those sales; i.e. you cannot
> prevent a secondary market that may undercut you if you sell for too much.
> 
> "Restrict" means "forbid, or place under such onerous terms as to be
> tantamount to forbidding".
> 
> > 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.
> 
> I don't know what you mean by "spreading".  But yes, this is practical and
> is often done.

Spreading = tainting = infecting. I've seen these terms used to describe 
licenses that force the resulting work to be under the same license. GPL does 
this with clauses 1b and the 2nd paragraph of clause 1c.

Ok, dual licensing is practical.

> > 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?)
> 
> Yes.  The FSF (back to them again) insist that any contributor assign the
> copyright of the contribution back to them, not because they have any
> intention of dual-licensing, but because it allows them to be the sole
> copyright author for purposes of copyright-infringement lawsuits.

And for royalty purposes?

> > 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!
> 
> And if nobody sold computers, nobody could sell or give away software
> either.
> Elimination of proprietary software is not likely to happen, given that
> there
> are often good business reasons to keep software closed.  

So there are "good reasons" to close as well as to open! This seems to suggest 
it's a symbiosis, not a parasitism. But still closed software could strive 
without the open, and the opposite is not true...

> Eric Raymond says in "The Magic Cauldron"
> (at http://catb.org/~esr/writings/magic-cauldron/magic-cauldron-10.html):
> 
> 	On the other hand, open source seems to make the least sense
> 	for companies that have unique possession of a value-generating
> 	software technology (strongly fulfilling criterion (e)) which is
> 	(a) relatively insensitive to failure, which can (b) readily be
> 	verified by means other than independent peer review, which is
> 	not (c) business-critical, and which would not have its value
> 	substantially increased by (d) network effects or ubiquity.

So many factors, and so few models (open, closed).

> > Conditions of Use of MAA Artifacts
> 
> It is more than questionable whether any such conditions of use are
> enforceable among people who have not signed a contract with the source.
> In particular,
>
> >     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.
> 
> does not give any theory whereby the use of something can be made "an
> illegal act".  Copyright law, at least, does not constrain use.  Patent
> law can and does, but I suppose that the creators of MAA artifacts do not
> generally hold patents on the subject matter.

Ok. These are legal details. I'm interested in the gist (clase 1.1.) It's a 
good thing it passed undiscussed?

(I'm replying to the individual address and cc-ing to the list as this was how 
I got the message. But shouldn't we just write to the list?)

Thanks,
--MAA

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