Open Source Business Found Parasitic, and the ADCL

[John Cowan]

maa at liacc.up.pt scripsit:

> Because the license forbids.

Not at all.  The *OSD* forbids the license to discriminate against types of
people or types of work, so an Open Source license cannot do those things.
If I wish to distribute Open Source software to my friends and nobody else,
nothing prevents me from doing so, neither the license, nor the OSD.

> At the general level I think there is no 
> difference between licensor and retailer. 

There is a fundamental difference: the retailer is in competition with other
retailers, whereas the licensor has a monopoly on the licensed product.
There is no commercial difference greater than this.  People who "sell"
(or actually license) proprietary software are monopoly holders.  Computer
stores don't have a monopoly, and if they charge more than their competitors,
they go broke.

(There is also competition in a more general sense between monopoly holders
who sell similar products; but if I want Microsoft Office specifically, I
must pay however much Microsoft asks for it.)

> The aim is simply making the commercial users pay the authors, keeping the 
> source open. I call this selling the software, and at this general level I 
> also equate selling software with selling a license to use it.

The only way you can make people comply with a license for using software is
to ensure that they never get a legal copy of it without a valid contract with
you (assuming you have no patent rights to help you).  That is contrary
to the nature of Open Source, which assures both access to the software
and the right to do what you want (within broad limits) to it.

> > No, the FSF neither pays nor collects royalties.  Indeed, per-copy
> > royalties are explicitly forbidden by Section 1 of the OSD.
> 
> Before you said OS licenses don't forbid selling the software...

No, they don't.  But they don't give anyone a monopoly in doing so either.
You can sell Open Source software, but so can I, and if I can undercut
your prices, you will go out of business.

> > As far as selling software constitutes collecting (liquidated) monopoly rent
> > for the software, then yes.
> 
> Sorry, I don't understand this language.

Okay.  There are three kinds of value you can get from things:

	use value, which is how much it helps you to be able to use the thing;
	sale value, which is how much it helps you to be able to sell
		the thing for more than you bought it for;
	monopoly value, which is how much it helps you to be able to exclude
		others from using or selling it.

Open Source software has no monopoly value, because it is free for anyone to
use or sell as they like.

> > But there are companies that sell only
> > free software, ranging from the FSF to CheapBytes, and they have no
> > problem.
> 
> Again, it must be a language problem. Above you said royalties are forbidden. 

A royalty is an amount of money that is received by the creator of the software
_per copy sold by anyone_.  Royalties can only exist when there is some kind
of monopoly protection in the software, such as restrictive copyright or
patent.  There can be no royalty paid on sales of Open Source software (other
than voluntarily) because everyone is equally free to sell it for whatever
they can get.

> Again, at a general level, it's the same thing. If I sell an artifact and pay 
> the authors backoffice I'm doing the *economy* of royalties.

You only have to do that because the author will cut off your copyright license
if you don't.  In Open Source software, the author has abandoned his right to
control the making of copies and derivative works, though he may continue to
impose specific rules on what derivative works can be made.

> I know these models. They are in [Hecker 2000]. I don't see a continuum. The 
> gaps are stronger than the continuances. Direct sale (general) is impossible.

*Monopoly* sale, like you get for books, is impossible.

> > If you don't care about enforceability, then yes.  IANAL, TINLA.
> 
> Ok. Now if I only knew what those acronyms mean...

I am not a lawyer; this is not legal advice.  A standard disclaimer on this
list.  (For those of us who are lawyers, the first part is omitted.)

-- 
Knowledge studies others / Wisdom is self-known;      John Cowan
Muscle masters brothers / Self-mastery is bone;       jcowan at reutershealth.com
Content need never borrow / Ambition wanders blind;   www.ccil.org/~cowan
Vitality cleaves to the marrow / Leaving death behind.    --Tao 33 (Bynner)
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