Subject: Re: Open Source Business Found Parasitic, and the ADCL
From: Chris F Clark <>
Date: Sat, 15 Mar 2003 12:44:54 -0500 (EST)

> Yes. I want to sell to commercial users and give away to others. That
> is  incompatible with clause 6 of the OSD.
Mark Murphy:
> For example, if what you are looking to release is a mature
> technology with an identifiable user base, you may be in fine shape
> with a not-quite-open-source license, if that user base will value
> your new licensing terms over what they have today.

Which is a wonderful idea.  However, to my knowledge no generally
accepted license exists for that today.  Especially, if one wants:
> the *exact* same code base to be commercially licensed and
> simultaneously available in source form for the public.

The closest approximation I'm aware of is "sell the present, free the
past".  It's not a bad model.  However, some of us would like to truly
give our current code away in a truly open source form and still sell
it.  I myself am dealing with exactly that conundrum.  

<section which is a side-detal that belongs here extracted to below>

Some of the options we have considered are giving away older versions
(the is a nice version of my software ca. 1996 that represents a nice
complete thought and which could be easily open sourced, except for
the fact that there are bugs in that version that are fixed in the
current version, and the bugs are mixed in with enhancements, and how
much effort do we want to go to for something we are giving away and
intend to make no profit on???) or giving away "stripped down
versions" (if we take the effort to port the current fixes to the 96
version but leave out the features, it is a version that is
essentially a stripped down copy of our current code).

Many companies do something similar to this by publishing gratis
versions for non-commercial use, but, then those versions aren't
really open source.  And one can't incorporate parts of those releases
in open source software.

None of these options are as satisfying as finding a way to give away
our current version and still retaining our rights.  It is probably
not possible.  However, from all the efforts of commercial/proprietary
software businesses to do so, you can see that it is an ideal to
strive for.

And despite the apprehensions of some members of this list, assuming
that the only reason to want to do so, is to hijack the open source
concept for commercial gain, there are propretary software vendors out
there who wish to make their software more open source, one small step
at a time, not for any self-serving reason, but simply because it has
the "right" feel.  However, some of us truly believe in "intellectual
property" (that software is the fruit of our own hard work) and that
our right to receive "just compensation" is another ideal which cannot
be sacrificed in the process.

<from above:>

In particular, I have clients to whom I have sold proprietary copies
to.  I would be perfectly happy if those clients could use that
software to create open source works that they distribute (with no
forther royalties--our current software requires no royalties for
distributing derived works).  However, I don't want some non-client
coming along and benefiting from the technology we have created and
creating a propietary work without compensating us--once we are
compensated we don't care.  It is just the point of creating the
derived work where we want and expect compensation.

And, to tie this to the previous thread, that is why I was interested
in the license that Abe Kornalis (I hope I spelled it correctly this
time, I delete past postings so I can't be certain).  Our mental model
of where software has value is at the ability to create dervied works.
Distribution does not interest us.  You want to make billions of
copies and give them to every person on the earth, go ahead.  However,
if they use our mental effort to save them mental effort, we would
like an appropriate fee.

Once we have been paid our fee, we don't care whether you as client
charge further downstream fees or not, nor whether you give away
source or not.  That's our point of view.  

However, in the real world our license doesn't work that way, and
unfortunately we haven't found a way to make it work the way we would
like.  Our default license does not allow our clients to distribute
our sources as the part of their application, because if we did then
we would loose our legal protection.  We have to make point-by-point
exceptions for the redistribution to keep things tidy legally.  That's
a real nuisance.

Better for us would be a license that was closer to open source (or
better yet truly open source) that recognized that derived works were
still a right that as the original copyright owners we retained.  Such
a license would allow us to allow our customers to bundle our sources
with their products and give them away, because they would not have
given away our rights in our sources.  The recipients of those copies
would then be free to use the software as they saw fit (except for
making new derived works using our parts, as that is still our right).

I think a license that would do that is possible.  Appearantly the QT
license keeps the integrity of the original work whole in
redistributions (i.e. modifications are made by patches and the whole
is kept exact in derived works), the MPL applies the license only on a
file-by-file basis, and the AFL allows the combining into a derived
work where the licesne of the part need not apply to the whole (but
hopefully remains on the relevant parts).  The must-publish or
must-supply clauses seems to describe acceptable conditions for
considering the result to be opn source and under which we would allow
our software to be used without further fee.  However, I am not a
lawyer and I'm not likely to hire a lawyer to write such a license
unless I have good reason to believe that such a license could and
would be OSI certified.  (The last time I hired a lawyer it cost us
$25k to get a simple lease resolved and the results were not entirely

Now, if you'll excuse me, I have programming to get back to (actually
today system administration and bookkeeping, joy of joys)....
-Chris Clark
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