[License-discuss] Open Source Eventually License Development

Michael Widenius monty at askmonty.org
Mon Aug 19 06:44:35 UTC 2013


>>>>> "Eben" == Eben Moglen <moglen at softwarefreedom.org> writes:

Eben> Whatever the truth of the adage may be, the point for us is that none
Eben> of this has anything to do with licensing.  Fred Trotter was actually
Eben> asking a question, to which the correct answer is: "You don't need a
Eben> license to make something free software at a certain date in the
Eben> future.  Giving a copy to an appropriate agent, with written
Eben> instructions to publish under, e.g. GPLv3 or ASL 2.0 on the future
Eben> date, is quite sufficient.  Any number of reliable intermediaries for
Eben> such purposes exist, and would provide the service gratis."

What Fred Trotter and I have been proposing is actually a bit
different (at least when it comes to what I refer as Business Source).

>From day one all code will be available.  The copyright text in all
source files clearly state the exact date when the code becomes Open
Source or Free Software.  Until that given date anyone is free to
modify or redistribute the code in any manner.  It's only the usage of
the code that is restricted to a small part of the users (those that
can afford to pay according to the copyright holder) until the code is

In other words, there is no need for escrow or any agent.

More about this at:

Eben> This isn't a matter for copyright licensing, because licenses are, in
Eben> J.L. Austin's term, "performative utterances."  They are present acts
Eben> of permission, not declarations of future intention, like testaments.
Eben> There's no point in a copyright holder writing a license that says
Eben> "these are the terms today, and those will be my terms tomorrow."
Eben> Unless the license is irrevocable, only the terms of present
Eben> permission matter.

In our case, as soon as the original license expire, the new license
it's irrevocable Open Source.


Eben> It is simple to demonstrate from an economic perspective that the
Eben> value of the proprietary product sold on a fixed-term delay of free
Eben> licensing converges, after the first such period of distribution, to
Eben> the value of one upgrade minus the cost of applying it, assuming the
Eben> downstream user attributes absolutely no value to free licensing over
Eben> proprietary licensing, which is in fact usually a bad assumption.

Of course the free licensing is important; It provides a safety net
for all users that if the original software developers are not
continuing to do new critical development that the users needs, the
users can continue to use the original software for free.

Eben> This clearing price is too small to be profitable except at very high
Eben> volumes or in other extraordinary circumstances.

We will soon have have clear evidence that this is not the case. A
lot of companies that I have talked with are considering to release
their closed source code under Business Source as a way to get a
bigger market but still get paid for development.

The sad fact today is that most small companies can NOT afford to make
their code open source/free software as that would kill all their
current and future income.

Eben> The business model
Eben> fails for simple economic reasons--because the competition provided
Eben> for one's present product by the last version one has freed is almost
Eben> always too strong to withstand--not for legal ones.

We know from experience that users are willing to pay for getting
upgrades and bug fixes.  As long as the product is evolving, there
will be companies that are willing to pay to get the last version.

Eben> The natural history is in accord with theory on this subject.  RMS was
Eben> correct that this was a problematic compromise, but even more
Eben> problematic for the folks on the other side.

What other side?

We have to remember that Open Source/Free Software is a better
development model for large project with lot of companies that can
make direct or indirect money of the project.

Open Source/Free Software does not solve the issue of how to create a
software company around one or a few products and get enough money to
pay full time developers.

Doing support or consulting around the project is not a solution as
this doesn't generate enough money to be able to compete with closed
source solutions.


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