[License-review] Approval: Server Side Public License, Version 1 (SSPL v1)

[Eliot Horowitz]

This license is being submitted for approval by its steward, MongoDB, Inc.

Rationale: Clearly state rationale for a new license

Today, Affero GPL 3.0 uses the broadest scope of copyleft, among the
commonly used open source licenses.  MongoDB has been making its
database software available under AGPL for many years now. AGPL was
written to close the “SaaS loophole” by requiring those offering
software as a service to make source code available. However, for some
kinds of software that is popular for cloud deployment, AGPL has not
resulted in sufficient legal incentives for some of the largest users
of infrastructure software, such as international cloud providers, to
participate in the community.   Many open source developers are
struggling with a similar reality, and some of our competitors have
moved to proprietary licensing models. The alternative, to be blunt,
is for us to be that last standing unpaid open source database
developer for cloud providers, who sell access to our software for
significant fees, but may not adequately contribute back to our
community. Faced with the choice of moving to a proprietary model by
applying licensing restrictions to our software, we prefer instead to
continue using the copyleft model to create a workable incentive for
cloud providers to share with the rest of the community.

The Remote Network Interaction provision of AGPL has not provided
enough incentive to change the behavior of cloud providers for several
reasons:

·        It is not clear that it extends to software that controls the
functionality of the database software, such as management,
automation, monitoring, storage and hosting software.

·        It only applies if the software is modified, and the
definition of a modification references back to copyright principles
that are not settled law.

We have addressed each of these concerns in the Server Side Public
License, by (i) clarifying that the copyleft obligation applies to
those who make the functionality of the software available to third
parties, (ii) expressly including management, automation, monitoring,
storage and hosting software that is integrated with the functionality
of the database software, and (iii) removing the modification
requirement.


Distinguish: Compare to and contrast with the most similar
OSI-approved license(s)

This license is based on GPL 3.0, with the addition of a new Section
13 (Offering the Program as a Service) and other minor conforming
changes.  The text of the new Section 13 appears below, and we have
submitted the entire document in plain text as well.

“If you make the functionality of the Program or a modified version
available to third parties as a service, you must make the Service
Source Code available via network download to everyone at no charge,
under the terms of this License. Making the functionality of the
Program or modified version available to third parties as a service
includes, without limitation, enabling third parties to interact with
the functionality of the Program or modified version remotely through
a computer network, offering a service the value of which entirely or
primarily derives from the value of the Program or modified version,
or offering a service that accomplishes for users the primary purpose
of the Software or modified version.

“Service Source Code” means the Corresponding Source for the Program
or the modified version, and the Corresponding Source for all programs
that you use to make the Program or modified version available as a
service, including, without limitation, management software, user
interfaces, application program interfaces, automation software,
monitoring software, backup software, storage software and hosting
software, all such that a user could run an instance of the service
using the Service Source Code you make available.”

Legal review: Describe any legal review the license has been through,
and provide results of any legal analysis if available.

This new clause for the license was drafted with input from the
business and legal team at MongoDB, Inc., with assistance from outside
counsel Heather Meeker, and with input from certain outside community
members.  Its drafting has been the subject of significant internal
discussion, including as to its compliance with the requirements of
the Open Source Definition, and the efficacy of its extension of the
limits of copyleft.

We expect certain issues to arise in the discussion of the Server Side
Public License, and we have set out our thoughts on them below.

Open Source Definition item 9. License Must Not Restrict Other
Software.  This item of the OSD states that the license must not place
restrictions on other software that is distributed along with the
licensed software. "For example, the license must not insist that all
other programs distributed on the same medium must be open-source
software."  We think our license is consistent with this element as it
is written. First, the Server Side Public License does not place any
restrictions on the use of any software, only conditions. Second, OSI
itself says, “Yes, the GPL v2 and v3 are conformant with this
requirement. Software linked with GPLed libraries only inherits the
GPL if it forms a single work, not any software with which they are
merely distributed.”  But the converse is not necessarily true: if
software is not “linked” it does not follow that a source code sharing
condition violates the definition.

Open Source Definition -- neutrality.  Various elements of the
definition require that a license be neutral, or not discriminate
against certain users, products or technology.  While our license was
written to address the behavior of large players in the cloud services
sector, it is not facially discriminatory. In this respect, we think
it is like many other open source licenses, whose terms will naturally
apply differently to different groups of licensees.  For example, most
open source licenses apply very different conditions to software
distributors and software users -- not because the license
discriminates, but because those licensees choose to do different
things with the software.

Scope of derivative works.  Licenses like GPL and AGPL have
historically limited source code delivery requirements to GPL software
and its derivative works.  However, in the nearly 30 years since GPL
was written, the scope of derivative works in software has never been
clarified by courts.  This leaves copyleft licenses vulnerable to
challenge and misinterpretation. GPL v3 improved the clarity of the
scope of copyleft source code sharing conditions over GPL v2, but
still ultimately relies on copyright law terms that are not well
defined in law.  Cloud providers have exploited this ambiguity by
refusing to share their management, automation, monitoring, storage
and hosting code. Under the Server Side Public License, we make it
clearer what software is included in the copyleft source code sharing
condition.

We are mindful that it is difficult to define terms like value and
functionality.  However, we have drafted our network condition using
customary language and practices, and think that the ambiguities are
only those inherent in natural language.


Proliferation category: Recommend which license proliferation category
is appropriate.

Other Licenses.  Given the license is new, clearly it cannot already
have a significant community.  AGPL has one, but is not listed in that
category on the OSI web site here:
https://opensource.org/proliferation-report.  However, we expect our
license will quickly gain a wide following.  This license will be
applied to MongoDB, which under its current Affero GPL 3.0 license has
one of the most robust communities in open source database software in
the world.  MongoDB was released in 2009, and is the largest big data
community in the world, with over 40 million downloads since 2009 and
over 12 million downloads in the last 12 months.  As of this writing,
the MongoDB GITHUB repository shows over 43,000 commits, 680 releases,
and over 350 contributors. Much as MongoDB pioneered the use of Affero
GPL 3.0, we expect to pioneer the use of this new license.

In keeping with the License Approval Process submission guidelines:

- We have read the Open Source Definition and ensured that this
license complies with it.

- This is an Approval submission, as this is a new license.

- We have appropriate standing to submit this request, as this license
was created by us.

- We are subscribed to license-review.

- This communication is our formal request to license-review.


A PLAINTEXT VERSION OF THE LICENSE FOLLOWS:

====================================================================================

SERVER SIDE PUBLIC LICENSE

VERSION 1, OCTOBER 16, 2018

Copyright © 2018 MongoDB, Inc.

Everyone is permitted to copy and distribute verbatim copies of this
license document, but changing it is not allowed.

TERMS AND CONDITIONS

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To “convey” a work means any kind of propagation that enables other
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An interactive user interface displays “Appropriate Legal Notices” to
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13. Offering the Program as a Service.

If you make the functionality of the Program or a modified version
available to third parties as a service, you must make the Service
Source Code available via network download to everyone at no charge,
under the terms of this License. Making the functionality of the
Program or modified version available to third parties as a service
includes, without limitation, enabling third parties to interact with
the functionality of the Program or modified version remotely through
a computer network, offering a service the value of which entirely or
primarily derives from the value of the Program or modified version,
or offering a service that accomplishes for users the primary purpose
of the Software or modified version.

“Service Source Code” means the Corresponding Source for the Program
or the modified version, and the Corresponding Source for all programs
that you use to make the Program or modified version available as a
service, including, without limitation, management software, user
interfaces, application program interfaces, automation software,
monitoring software, backup software, storage software and hosting
software, all such that a user could run an instance of the service
using the Service Source Code you make available.

14. Revised Versions of this License.

MongoDB, Inc. may publish revised and/or new versions of the Server
Side Public License from time to time. Such new versions will be
similar in spirit to the present version, but may differ in detail to
address new problems or concerns.

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following the terms and conditions either of that numbered version or
of any later version published by MongoDB, Inc. If the Program does
not specify a version number of the Server Side Public License, you
may choose any version ever published by MongoDB, Inc.

If the Program specifies that a proxy can decide which future versions
of the Server Side Public License can be used, that proxy's public
statement of acceptance of a version permanently authorizes you to
choose that version for the Program.

Later license versions may give you additional or different
permissions. However, no additional obligations are imposed on any
author or copyright holder as a result of your choosing to follow a
later version.

15. Disclaimer of Warranty.

THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY
APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT
HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM “AS IS” WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND
PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE
DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR
CORRECTION.

16. Limitation of Liability.

IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING
WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MODIFIES AND/OR
CONVEYS THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES,
INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT
NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR
LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM
TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

17. Interpretation of Sections 15 and 16.

If the disclaimer of warranty and limitation of liability provided
above cannot be given local legal effect according to their terms,
reviewing courts shall apply local law that most closely approximates
an absolute waiver of all civil liability in connection with the
Program, unless a warranty or assumption of liability accompanies a
copy of the Program in return for a fee.

END OF TERMS AND CONDITIONS
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