Frameworx license clause 3b

[Matthew Flaschen]

John Cowan wrote:
> Is clause 3b of the Frameworx license really consistent with the OSD?
> 
> # Any Value-Added Services that you offer or provide, directly or
> # indirectly, in relation to any Downstream Distribution shall be offered
> # and provided on commercial terms that are reasonably commensurate to the
> # fair market value of such Value-Added Services. In addition, the terms
> # and conditions on which any such Value Added Services are so offered or
> # provided shall be consistent with, and shall fully support, the intent
> # and purpose of this License Agreement.
> 
> That sounds like a restraint on commercial (or non-commercial) activity.

It's not a restraint on non-commercial activity, because the definition
of Value-Added Services excludes non-commercial services.  However, it's
a restriction on e.g. hosting the program at a non-fair market rate.

If all hosting markets were efficient, there would be no hosting at
unfair rates, so I agree this clause would be moot.  However, I don't
think any hosting market is efficient.  Besides, a hosting provider
shouldn't have to determine whether they are selling at a fair market
rate (which is actually a complex calculation if you do it right).

Thus, I think this is a OSD #6 violation (it discriminates against
hosting providers) and I hope nothing like this clause would be approved
today.

Matt Flaschen