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.)"
Re:Word Games? (Score:4, Interesting)
Re:Word Games? (Score:3, Interesting)
The only reason I see it being an issue for a company is if it's GPL code and they don't want to deal with the GPL, but if they're too lazy to read the BSD license (or already know what it is for goodness sakes) then I guess shame on them.
Obviously if you wrote the code you can provide a "closed source" or closed license version of it if you want to. Of course, if anyone else has contributed to it, then that changes things a little bit.
just "copyrignt (c) 2010 me, all rights reserved" (Score:1, Interesting)
All I think you need is to make a copy with a statement along the lines of "copyright (c) yyyy me, all rights reserved" as the copyright statement, and a license that reads something like "company X is given a non-exclusive [and transferrable - if you want it transferrable] license to my program zzzz and may use it as it likes". This accomplishes a dual license, and by saying it is non exclusive it means the rest of the world may still have the right to use other copies of the program according to your other license. Companies that have this kind of rectal - cranial inversion problem tend to want transferrable licenses so they can sell their restricted license somewhere if they like, or so if they get bought, the buyer gets the license also. You may want to replace "company x" with "company x or any successors in interest".
This is all approximate wording but would express your intent clearly enough.
The ball on their roof (Score:3, Interesting)
Provided you are the only copyright holder of the software, just ask them for a big money chunk, half in advance, and tell they'll even be able to write the license themselves, so there's no doubt that's what they want. Get the license to a lawyer (you already have part of the money) to review there's nothing you dislike and then sign it up.
Easy.
Re:Charge a monster price (Score:4, Interesting)
You phrased it as a joke, but that is exactly what the poster should do.
Take the BSD 3-clause license and change the name to something like " developer license", then agree to license your code under said license for $x, where x is a reasonable amount. Basically they are paying for your written acknowledgement that the code is yours to give away and that if there are any copyright problems they know who to blame.
Re:It's Open Source no matter how else you license (Score:2, Interesting)
It depends on what the concern is; if the attachment of an open source license is the concern, a different license can take care of that (assuming that there is an entity that maintains copyright over the entire work). If the public availability of the code is a concern, then no.
Comment removed (Score:3, Interesting)
Re:It depends (of course) (Score:4, Interesting)
Explain how the BSD license works in three sentences or less....I thought the BSD was three sentences.
How much are they offering to pay? (Score:4, Interesting)
If it seems sufficient, tell them to send you a proposed license. If they won't pay tell them they've already got the only license they are going to get.
BTW it is a virtual certainty that they are already using BSD-licensed software.
Re:BSD (Score:1, Interesting)
Technically the Internet Systems Consortium (ISC) license [wikipedia.org] that's preferred by OpenBSD is "more permissive than any other license" that I know of, but the most libertarian arrangement of all is public domain.
What benefit does BSD give you over PD, really? That silly warranty clause would be completely unnecessary then. The Internet with its thousands of spider-bots is one giant timestamp mechanism - you could always prove that you wrote something first if you really wanted to...
Either way, big kudos to goruka for not locking away his code behind a restrictive anti-free-market license like (L)GPL!
Re:Let them write the license (Score:4, Interesting)
> They want it, let them write it and specify the terms. You just need to read
> it to make sure that it doesn't limit your ability to continue giving the
> code away.
Just above your signature write "Only non-exclusive rights are granted." Make them initial that.
seems clear enough to me (Score:3, Interesting)
I think they've answered the question for you. If their contract says they can't use open source software, then they are already forbidden from using any already-open code in the project, even if they get a special alternate form of license from you.
Also, if you've ever taken patches from other developers, and didn't have them sign a statement that giving you copyright over the patch, you're probably not legally allowed to relicense their work anyway.
Finally, while I can't speak to your motivations, if I released software under an open source license and someone came along and said, "hey, we need a different license for this, can you help us out?" My response would be, "how much are you paying me for it?"
Warranty? Protection? What planet are you on? (Score:5, Interesting)
Some of your arguments against freeware are dubious...
"There's two reasons for being against 'freeware' - many are distributed as closed-source economically unauditable binaries. This leads to difficulties in gaining code security - the government can go after microsoft if they deliberately put a back door in their software, but some dude who published some freeware MP3 player?"
"Auditable binaries"? When was the last time you audited one? Ever read a Microsoft EULA? Neither the government nor anyone else will be going after Microsoft for anything, even if they provided a back door. I seriously doubt anyone can extract ANY remedy beyond possibly a refund of purchase price. Again, read the EULA. Feel the "protection".
"The second is maintenance - they don't want to become dependent upon unmaintainable software. It happens anyways, but if you're paying some company money, generally you get a warranty."
You mean like having the vendor go out of business and you can't get the source code? In 1990's, I managed a large data center. All of our hardware (and most of the software) came from the #2 player in the industry -- Digital Equipment Corporation. DEC was considered "too big to fail" back in those days. We had about $5 million in software licensing alone. Over the course of five years, the vendor that was "too big to fail" proved otherwise. It was a very expensive learning experience. At the time, our thought process was pretty much the same as yours -- and look how well THAT turned out. Those who ignore history will surely repeat it.
As for warranties, back to the EULA once again. Find me a software license that grants any warranty or accepts any liability beyond possibly refunding the purchase price. Just one. Got links to share?
As for copyright, are there any cases where parties who inadvertently possess infringing code have been held liable INSTEAD of the original source of the infringement? Where ARE these cases? Got links?
There have been several cases where large software companies were found guilty of patent or copyright infringement. Have ANY of their customers ever been charged with infringement for merely possessing the infringing software? Again, where are the cases and let's have some links.
You might be tempted to mention SCO vs. Autozone, but that case was about terms of a license. Autozone wound up in court primarily because they bought software from SCO, probably thinking they had the protections that you mention. As far as I know, companies that used Linux exclusively (and never SCO products) have never been sued by SCO. Makes you wonder how valuable this "protection" is.
Re:Word Games? (Score:3, Interesting)
multi-theft auto.. (Score:3, Interesting)
wanted to use a gpl embedded c/c++ web server I wrote. One of the developers sent me an email asking if they could use it. I sent them an email to the extent of "I hereby grant you a license to use EHS (the library) in any way in multi-theft auto."
Either that was good enough for them or they didn't decide to use it afterall.
Re:What? (Score:5, Interesting)
It's actually not uncommon. My current employer has a "no open source allowed without explicit approval by the legal dept, which takes an eternity and is a royal pain, so don't do it unless there's absolutely no alternative" policy. I am not kidding.
One of my previous employers had the same policy. This is not at all uncommon.
A few years ago a company found some of my code on the web. The code was released under an apache-like license. They contacted me because they wanted to buy it, but with a couple of minor modifications and under a different license. Essentially very similar scenario as the situation the OP found himself in. I agreed, made the modifications, and sold the original product plus the mods to them under a different license. I think it was cheaper for them to get the modifications they wanted, and the license they liked than develop the same code themselves.
As for me, I felt that nobody besides that company would have probably wanted those modifications anyway. That's probably not entirely true, but I convinced myself of that so that way I did not feel like I was totally selling out :) The Open Source community probably did not miss much by me not releasing those mods. I treated the modifications as "work for hire", and since I never released them, I avoided most of the possible legal difficulties. The original product stayed under the same license, of course. That company is now one of the 5 largest software companies, so I presume the practice is not unusual.
SQLite is licensed with option for paid license (Score:4, Interesting)
http://www.hwaci.com/cgi-bin/license-step1 [hwaci.com]
Re:Dual-license (Score:3, Interesting)
Well... if you change that to a car analogy - if you put a device in your car that turns off the engine and locks the steering once the car reaches 40mph if theft is detected then anyone foolish enough to steal it gets what they deserve. A nice idea in theory but you'd be going to jail if it happened, or worse if it resulted in an accident that melted down a bus load of nuns.
Back to the original case, I thought it was BSD licensed so they wouldn't be stealing it anyway. They just wanted a license that better suited their needs.
Re:What? (Score:5, Interesting)
"Force here is the lawsuits that result, if the original license holder discovers use of their code in your code."
You are illustrating that a lot of people are so used to licenses raping their ass that they can't imagine a license that ALLOWS you additional things that you normally can't do (like distributing a derivative product)
What happens if someone uses GPL code in their product but does not adhere to the terms of the GPL? They are then not allowed to distribute the resulting product. If they do, they did infringe on the copyright of the authors. The GPL doesn't matter at that point. The only thing that can happen is that the original authors sue for damages. Mostly they will be satisfied if the sourcecode is released, but that is NOT a requirement. (Although most companies will do that as it's cheaper than to pay damages for all their already sold products containing the GPL code and removing the GPL code from their product which would be the way as with any other copyright infringement)
Summary: You are a fear-mongering moron.
You're probably dealing with idiots (Score:4, Interesting)
If the client wants to redistribute, charge as many fees as you possibly can. Base license fee, sold site fee, per host sold fee, per user sold fee, think of anything else fee... Some organizations actually like that. If you have an ethical problem with that, see it as a price they pay for purification of their sorry souls.
Is your client by any chance an MS business partner?
Insurance (was Re:Word Games?) (Score:5, Interesting)
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, and maintain that insurance for many years. So you need to cost the premiums, the likely rise in premiums over the years, and the hassle of organising it into your fee.
When someone uses your open source software there is in law no implied contract between you and them, because they haven't supplied you with anything of value in return for your software. So if they sued you, they would (in sane jurisdictions) lose (provided you could afford to defend yourself, and people like FSF and EFF would probably help). However as soon as you accept anything of value in return for your software, you have a contract and so you're potentially liable if failures in the software cause damage to the user. You might or might not win in court if sued, but no-one would help you so you're likely to be bankrupted if you lose. So you need insurance. So you need to cost for it - and that means the cost of your licensed software is going to be quite high.
Disclaimer: I am not a lawyer, particularly not in whatever jurisdiction you are in. But I have been in exactly the position you describe, and those are my conclusions. In practice you're probably going to be put to quite a bit of work and inconvenience working out exactly what is would cost you to provide a closed source license, and when you do your potential customer will back away rapidly.
Re:Word Games? (Score:3, Interesting)
Wonder if the company in question would have the same worries if the code was released under creative commons... There's nothing in CC that prevents it from being used for something like computer code, and the cc-by license (http://creativecommons.org/licenses/by/3.0/) gives pretty much the same rights that the BSD license does.