Providing a Closed Source License Upon Request? 245
goruka writes "As a citizen of the open source community, I have written several applications and libraries and released under the BSD license. Because of my license choice, I often run into the situation where a company wants to write software for a closed platform using my code or libraries. Even though there should be no restrictions on usage, companies very often request a different license, citing as a valid reason that the creator of such platform has special terms forbidding 'open source software' in the contracts forced upon the developer. So my question is, has anyone else run into this situation, and are there examples of such licenses that I can provide? (Please keep in mind that I'm not a US resident and I don't have access or resources to afford a lawyer there.)"
Charge a monster price (Score:4, Insightful)
BSD (Score:4, Insightful)
The BSD license is already more permissive than any other license, and allows code to be used in proprietary products. There is nothing that a proprietary license would let them do that BSD will not, thus there is no justification for them to subject you to the trouble of researching this just because their policies are written by stupid people.
By making this clear to the people you work with, you could do the public understanding of free software a favor. By bowing to their obscene requests arising from ignorance, you would admit defeat in the face of the FUD coming out of places like Microsoft.
What? (Score:4, Insightful)
"...citing as a valid reason that the creator of such platform has special terms forbidding 'open source software' in the contracts forced upon the developer."
What platforms would or could have such a restriction? Does the iPhone do this? XBox? What are we talking about? Is that even legal?
Just tell them ... (Score:5, Insightful)
Seriously, I suggest you have nothing to do with such idiots on the off chance that it is contagious.
Make them pay (Score:1, Insightful)
Make them pay. They need to pay for you to get legal advice in every country they wish to run the software AND enough to make this worth your effort. If you are typical, you'll want to sell them annual support contracts too.
I'd start with $20K just to get started.
I wouldn't let them repackage your library, unless you specifically want that. Take a look at the run-time licenses for different closed source libraries and programs that you use.
The more complex the license, the more the lawyer will cost and the more liability you are accepting (no patent infringements, etc). If they want your company to "indemnify them", that needs to cost lots more, perhaps $120K.
Re:Charge a monster price (Score:1, Insightful)
If the terms of the BSD license is not good enough, I'd tell them to piss off.
Brilliant! A company wants to use open source software but due to restrictive licencing by a third party cannot do so directly. They ask for a compromise ("Give us the same software with a different licence") and your response is to drive them back to closed source software and abuse them in the process.
It depends (of course) (Score:3, Insightful)
1. Is the software you want to provide all yours, or a mix of peoples' work? If it's a mix, probably it's best to just give up and move on.
2. Ok, it's all yours. Congratulations! Call the person who wants to buy/use it:
2a. Explain how the BSD license works in three sentences or less.
2b. Ask if the sticking point is liability, copyright risk, ownership rights, or other.
2c. Explain you don't have the time, expertise, or money to negotiate a contract, esp given the BSD contract already spells things out.
2d. Point out that 2b issues can be resolved, but it's going to be $10K at a minimum for your time + legal fees.
2e. If they still want to do it, ask for a letter of understanding that lays out the $amount for a non-exclusive right to use/copy/modify, etc.
2f. Run the letter by a lawyer.
2g. Profit.
Re:Word Games? (Score:5, Insightful)
I'm not saying this to be sarcastic, but one big difference could be if he gets paid.
If they're offering to pay you for a closed source license, then it's worth time to research it. If they want the code free, they got no business asking a coder to do even more work for them in the form of a new license for free.
Don't sell yourself cheap. (Score:3, Insightful)
Some companies are concerned about the 'viral' nature of the GPL in particular (some suit read an article about open source that talked about the GPL, and now 'open source' == GPL in his head) There are still many unresolved questions about the GPL in the US, as I'm aware it's only been rarely if ever tested in most jurisdictions in an actual court of law.
Personally, I expect to be compensated for my time and effort. This needn't be in money -- I release free software as a 'gift' for the community because I (and most of us) have received many such gifts in kind (Indeed, almost all the software I use, from the kernel down to the tiniest little nifty script) was a 'gift' to me by other members of the community). A commercial interest, on the other hand, will have to find some other way to compensate me for my work, as they (typically) are not part of the 'community' that has already compensated me for my time. Cash works well.
Re:Charge a monster price (Score:4, Insightful)
Which is exactly what the original poster should do: Charge a non-nominal amount, and pay 10-20% to some lawyer to write up the license for them.
Heck, call some lawyer in the US, and tell them that for 15% of whatever they can negotiate, you want them to talk to this company and come up with a license/fee for you. There are probably more than a few lawyers who'll work under those terms.
Re:Just tell them ... (Score:2, Insightful)
This practice makes a lot more sense than it might seem. As a software manager on a large project, I do it all the time. There's lots of useful software out there, but my legal department does not always find the existing license acceptable. So, we offer to buy non-exclusive use rights to the software on a contract that we provide that gives us the protections we need as a large company to reduce our risks. For the developer, it is found money, typically from $3-$10K for small open-source pieces of code.
The underlying reason that our lawyers dislike most open source licenses is that the is little or no case law on the meaning of the terms. And for a lawyer, a contract term only means what judges have said it means. Without case law, it could mean anything. So we are willing to pay to avoid that risk. It seems reasonable to us, and I can tell you from experience that it always seems reasonable when money falls out of the sky into the lap of the developer.
Re:Word Games? (Score:3, Insightful)
I mean, basically they'd be lying to the concerned party by saying "Ohh, this isn't the OPEN SOURCE software you're afraid of." Even though it's the same code.
There is one big difference: it might not be the concerned party that's afraid of Open Source. I mean, they want to use it. It's some other entity they have a valid contract with, and that contract says no OSS.
Depending on the wording of that contract, a new licence can solve a lot of headaches.
Re:Charge a monster price (Score:4, Insightful)
Thank them for their support (Score:1, Insightful)
... and dual-license your software as a closed-source license. Charge them a license ($10,000), or possibly a royalty ($1 per copy) for usage of your code. Use this money to continue to develop and improve your code. Dollar figures are for example only, you'll have to negotiate that with them.
This is a great way to get paid for developing your Open Source project!
Re:Dual-license (Score:4, Insightful)
The only problem that MySQL is having with its licensing model is that Monty is a fucking idiot who wants to have his cake and eat it too. I'm sorry, you sold it. It's not yours any more. What you want no longer matters. Now shut up and go away.
Why complain? (Score:4, Insightful)
Re:Charge a monster price (Score:2, Insightful)
I don't get it. You seem to be mixing up tons of unrelated stuff. 1) The poster was talking about BSD license, not freeware, so that is irrelevant. 2) the poster is talking about a license change, not a maintenance contract which is what you are talking about, so non-sequitor again. 3) You cannot be sued for using BSD license in closed source. The only way it could happen is if the author did not really own the code, and just copied it from somewhere else. But licensing stolen code does not make you immune from lawsuits. It just makes you look that much more stupid. So, not sure what you are really talking about, but sounds about right from a government point of view.
To sum up (Score:4, Insightful)
dont give in (Score:2, Insightful)
they see what has been freely given (open source) as valuable to their business, yet they dont want to give something back - so, dont give in - this is exactly the sort of thing open source was invented to prevent - if they're so greedy that they think they dont have to give anything back - well then - they can just live without those freely-given benefits. they're inflexible- why should open licensors have to bend for the sake of their greed??
2cents
jp
Re:What? (Score:2, Insightful)
No license can (and the GPL does not attempt to) force anyone to "open source" their code.
From the GPL 3.0 license [gnu.org]:
A "covered work" means either the unmodified Program or a work based on the Program.
[...]
When you convey a covered work, you waive any legal power to forbid circumvention of technological measures to the extent such circumvention is effected by exercising rights under this License with respect to the covered work, and you disclaim any intention to limit operation or modification of the work as a means of enforcing, against the work's users, your or third parties' legal rights to forbid circumvention of technological measures.
It forces people who wish to "convey" (for example, sell) work which uses the licensed code to license their code under the GPL 3.0 license. Force here is the lawsuits that result, if the original license holder discovers use of their code in your code.
Re:BSD (Score:4, Insightful)
OP said in essence: We have a business requirement of no open software licenses.
What a proprietary (The BSD 3 clause reworded as mentioned above works fine.) developer license lets them do that a plain vanilla open source license does not allow them to do is WIN THE BUSINESS given the constraints of the situation.
Perhaps you are inexperienced in the relationship that a smaller vendor holds to a larger customer who has other options. The general rule is keep the customer satisfied. Ideally without corrupting your soul. ;) Is the customer (here at least) an idiot? Why, yes, they are.... In fact, they are the idiot who is paying us so we are able to feed our babies and buy mommy the new minivan. Does it cost anything to do this special license? Would it cost us the business to not do it?
In the real world you work on moral goals by successive approximation. Sometimes you have to sugar coat the medicine, even if it doesn't taste bad. Failure to understand and honor these realities while flaying someone for a position that appears morally inferior to yours is itself a form of FUD.
You just defined WGA there. (Score:4, Insightful)
You just defined WGA there. But Microsoft isn't going to jail for it, are they? Your analogy breaks down because, whether it should or not, the sort of fucking about that is illegal in cars is absolutely fine under law with digital products.
Re:The ball on their roof (Score:1, Insightful)
Just make sure it's a non-exclusive license, or non-exclusive transfer of copyright. What the submitter needs to be careful of is that the closed source license does not prevent him from continuing to develop and release his open source version.
Re:Word Games? (Score:4, Insightful)
Alternative licenses instead of BSD would be LGPL or Apache Public License.
But you are right - beware of closed licenses unless you have a perfectly clear specification that you aren't at risk of getting sued for any error in the code. I think that you should check with a Lawyer about your legal responsibilities and options to really avoid trouble. A commercial license usually also means commercial responsibility for the package.
And if you have created a package good enough to attract the interest of the commercial world it's probably better than any decently priced commercially available package anyway. What the commercial company probably fears is the risk of having to open up their own code to the world since their license is "contaminated" by BSD or whatever.
More permissive? Depends on perspective... (Score:4, Insightful)
> The BSD license is already more permissive than any other license, and allows code to be used in proprietary products.
Not quite. More permissive to the direct user, potentially a lot less permissive for anyone after that.
BSD wants to give all freedoms and thus gives up a certain portion willfully.
GPL is not quite as permissive, but keeps that level for everyone down the stream.
Re:Insurance (was Re:Word Games?) (Score:3, Insightful)
In any case, if you supply a closed source license, you're going to need to take out professional indemnity insurance for a very large amount
I don't see why that should be the case. Look at any Microsoft product - it explicitly says in the licence that there is no warranty and no guarantee of fitness for purpose. There's nothing to stop any closed-source licence saying "You cannot have the source code. You have no guarantee that this will work. If it breaks, you own both pieces."
Re:You just defined WGA there. (Score:1, Insightful)
"You agreed to WGA though."
Agreed to WGA? Not so much. If I remember correctly, WGA was snuck in as a "critical" update, which Windows Update said was supposed to "improve the Windows experience" in some manner. Anyone who had set Windows Updates to automatic would never have even been prompted.
"Sneaking a backdoor into a product is different."
Lots of malware claims that you clicked through an EULA, too. Hiding a term deep inside an EULA didn't qualify as permission then; it should count even less for Windows.
Re:"Forgidding Open Source"? (Score:1, Insightful)
Why talk them out of paying you money. If they want you to change the licence, get them to pay, if they won't pay, don't do their legal work for them.
Re:How much are they offering to pay? (Score:3, Insightful)
Bingo.
For years Microsoft used BSD licensed code in Windows' networking. It never caused a problem for their customers. I wouldn't be surprised if removing it were a political decision.
For practical purposes "no open source software" means they customer wants a 100% Microsoft development and deployment stack. It means no Apache, no perl, php, and for practical purposes no Java either. The only entity in the world who has a rational reason to avoid BSD licensed software is Microsoft, and purely for the purpose of preventing its customers from buying competitor's software. There's no rational reason to avoid BSD licensed software as a customer, because it's just a minimal subset of what's in just about every proprietary license that isn't written by an idiot.