[License-discuss] GPL and proprietary WebAPIs

[Tzeng, Nigel H.]

On 12/27/11 11:37 AM, "Clark C. Evans" <cce at clarkevans.com> wrote:

>First, thank everyone for their responses.  I especially
>enjoy the reading material that Rick Moen has referenced.
>
>On Tue, Dec 27, 2011, at 10:07 AM, Tzeng, Nigel H. wrote:
>> If it's not a derivative work then it's not a derivative
>> work and you should have no heartache.  If it is a
>> derivative work then you have legal recourse to correct it.
>
>I'm concerned about the case where a shim/adapter could be
>ruled as derivative work and as such its distribution of
>such could be prohibited under copyright law --- but where
>the court does not consider the derivative work to include
>an independent proprietary component needed to actually use
>the derivative in a meaningful way.

Yes, this strikes me as likely.  An independent web service as suggested
in your scenario is unlikely to be a derivative work.

>Please note that my scenario is different, I'm talking
>about a competitor who would alter/transform/modify our
>work in order to add proprietary functionality -- not
>simply use it via its public interface.
>
>> Then your scenario of shims and "creative
>> circumventions" isn't a negative but a positive as it
>> enhances both your revenue stream and ecosystem.
>
>I can't disagree more.  This technique, if the GPLv3
>offers no defense against it, would permit our competitors
>to keep their exclusive proprietary licensing stream
>while actively integrating the benefit that our software
>would provide without contributing back.  The shim being
>an actual "anti-contribution" since it may confuse users
>what is free software and what isn't.

As I said, it's primarily a business decision.  If you are primarily a
consulting firm who's business model is based on billable staff hours then
if you consider your software this important to your value added then I
might not open source it at all.

If you are a product company your decision may be different.

They are never obligated to contribute their work back to you anyway.
Only to their own customers which may or may not ever bother to give it to
anyone else.  So even if your competitor elected to provide their library
as source neither you nor anyone else may ever see it.  It may also be in
a deeply forked form not readily reusable by you.

My impression is no form of open source is likely to ever give you the
level of protection you desire. If nothing else my understanding is that
if they are contracted on a work for hire basis to write a shim from your
code to any proprietary library (theirs or anyone else's) then no
distribution occurs and no licensing clause is triggered.  GPL v3
explicitly addresses work for hire as not being a distribution.

Regarding MySQL and their licensing strategy...lets just say that they
leveraged any ambiguity to their greatest advantage.

Most companies will likely be very conservative in their approach if the
pain of paying you is low enough to be not worth the bother to attempt to
circumvent.  At some point cost is very secondary to service.  Given that
Oracle was likely quite a bit more than any mySQL commercial license
anyway...

If your software has such a structure where adding a proprietary library
is easily done via a shim then having a real plug-in architecture and
charging for an Enterprise version of your code strikes me as a good
balance between open and a viable revenue stream.

Besides, all the mental and emotional effort spent defending your assets
in court is effort not spent on actually improving your core product
whether that's billable hours or product sales.  That's potentially even
more deadly than infringement.

That's also ignoring any monetary aspect.  If you don't have a sufficient
legal war chest to assert your rights in court how much does it really
matter against an aggressive and unscrupulous competitor?

If your risk tolerance is this low then open source is not likely the
right "sleep comfortably at night" answer for you.  Your source will be
out there and if actually useful then someone will likely be using it in a
way you probably wouldn't like.