[License-discuss] Query on "delayed open source" licensing

Fri Oct 27 00:12:18 UTC 2023

[This email is BCC Peter Deutsch and Kyle Mitchell.]

To: OSI License Discuss

A bit of history about what you are calling “delayed source” in your recent
emails.

My friend, Peter Deutsch, invented what we then called “eventual licensing”
for his Ghostscript software. This software was marketed successfully for
many years by his company, Artifex (initially Aladdin Enterprises), which
has now been sold. 

This software is provided AS-IS with no warranty, either express or
implied. This software is distributed under license and may not be copied,
modified or distributed except as expressly authorized under the terms of
that license. Refer to licensing information at  <https://www.artifex.com/>
https://www.artifex.com or contact Artifex Software, Inc., 1305 Grant Avenue
- Suite 200, Novato, CA 94945, U.S.A., +1(415)492-9861, for further
information.

This is what I wrote about “eventual source” in my book on Open Source
Licensing:

Eventual Source and Scheduled Licensing

In business, timing is everything. A few months’ lead developing and
commercializing a product can mean the difference between commercial success
and failure. For some commercial licensees, obtaining access to the source
code now rather than eventually may justify paying for those license rights.
This business reality has encouraged companies to create licensing
strategies that generate revenue from customers willing to pay extra for
additional lead time to develop their products. 

Artifex Software, the distributor of Ghostscript, uses such a scheduled
licensing model. Initially new versions of Ghost[1]script are not fully open
source, but at a later time they become open source under the GPL. 

Ghostscript is intended to be embedded into printers to support
industry-standard page description languages like PostScript and PDF. The
lead time to introduce enhanced printers is short and the competition among
printer vendors is fierce. Some of Artifex Software’s customers seek a
marketing advantage by getting new versions of Ghostscript early. 

New versions of Ghostscript are distributed initially under the Aladdin
Free Public License. They are also distributed under Artifex Software’s
commercial licenses. 

Despite its confusing name, the Aladdin Free Public License is not an open
source license. It prohibits commercial distribution of Ghostscript or of
products containing Ghostscript. Commercial distribution of Ghostscript
requires an Artifex commercial license—for which there is a royalty. 

Peter Deutsch, the author of Ghostscript and the first practitioner of this
scheduled licensing model by which commercial time-advantages can be paid
for, describes the Aladdin Free Public License this way: 

This License is not an Open Source license: among other things, it places
restrictions on distribution of the Program, specifically including sale of
the Program. While Aladdin Enterprises respects and supports the philosophy
of the Open Source Definition, and shares the desire of the GNU project to
keep licensed software freely redistributable in both source and object
form, we feel that Open Source licenses unfairly prevent developers of
useful software from being compensated proportionately when others profit
financially from their work. This License attempts to ensure that those who
receive, redistribute, and contribute to the licensed Program according to
the Open Source and Free Software philosophies have the right to do so,
while retaining for the developer(s) of the Program the power to make those
who use the Program to enhance the value of commercial products pay for the
privilege of doing so. (Aladdin Free Public License.) 

The Aladdin Free Public License imposes certain specific restrictions on
distribution. Among other things, it prohibits the commercial distribution
of Ghostscript software if any payment is made. The license describes (in
section 2) some types of distribution that are not allowed: 

• When payment is made directly for a copy of the Program. 

• When payment is indirect, as for a service related to the Program. 

•  When payment is made for a product or service that includes a copy of
the Program “without charge.” 

In many other respects, the Aladdin Free Public License reads like the GPL.
Like the GPL it allows examination of the source code and the creation and
distribution of derivative works. It even contains a reciprocity condition: 

You must cause the Work to be licensed as a whole and at no charge to all
third parties under the terms of this License. 

Artifex Software, the commercial distributor of Ghost[1]script,
simultaneously sells licenses to new versions of the program under
commercial licenses. Those licenses allow customers to embed the most recent
versions of Ghostscript into their printers. They also allow commercial
licensees to use the source code in any way they wish, and they do not
impose reciprocity obligations for derivative works. Approximately one year
after a version of Ghostscript is made available under the Aladdin Free
Public License and its commercial licenses, Artifex Software re-releases
that version under the GPL, at which point the software becomes truly open
source.

The incentives for Artifex customers to buy commercial licenses are
obvious. They can use the very latest versions of the software, with all the
latest features. They can contract for the support of Artifex Software
engineers to help them create their own products and derivative works. They
can purchase warranties. 

That extra time and those added-value services make scheduled licensing
succeed as an open source business model. But such software isn’t initially
open source, and its licensors promise only that it eventually will be.

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