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Providing a Closed Source License Upon Request?
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.)"
As long as the software/library is written completely by yourself, you're free to pick any license -- or dual-license it.
You can have your program both licensed under BSD, and also offer the same code/library as closed-source for $xx at the same time, with different conditions and fewer restrictions.
An example of other software that uses the dual-licensing approach is MySQL: for more information see http://www.mysql.com/news-and-events/newsletter/2003-11/a0000000220.html
For some BSD licenses probably not. But by getting a license directly from the creator they guarantee there is 0% chance of being sued by someone with a bug up their ass. It's happened before where someone creates a piece of software only to have a third party sue on their behalf without ever even asking them. So this is just a way for company using the code to have another layer of legal protection. Is it needed? Not in a sane world, but when you find one let the rest of us know.
The Goal: A long simple life filled with many complex toys.
If the terms of the BSD license is not good enough, I'd tell them to piss off.
My karma is not a Chameleon.
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.
That's what I was thinking. 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.
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.
- It's not the Macs I hate. It's Digg users. -
"...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?
... that BSD is a closed source license.
Seriously, I suggest you have nothing to do with such idiots on the off chance that it is contagious.
We don't see the world as it is, we see it as we are.
-- Anais Nin
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.
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.
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.
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.
If I'm not back again this time tomorrow...
Yale makes this available. Edit to suit your needs.
http://www.library.yale.edu/~llicense/standlicagree.html
Ryan Singer
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.
Nerd rage is the funniest rage.
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.
I'd let them pick the dollar amount for the licensing fee, too. Tell them to make a proposal, on both fee and terms, and you'll decide if it's acceptable. Odds are they'll offer you terms and money in roughly the same ballpark as what commercial software of the same type would cost.
Be certain that you own 100% of the code though. You don't want to get yourself in trouble for selling someone else's property.
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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.
Warning: this article may contain humor, sarcasm, parody, and perhaps even irony. Read at your own risk.
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.
This software company for whatever reason does not feel comfortable using the software under the existing licence. It doesn't matter if they are afraid to get sued later or whatnot. Contacting the author of the code and requesting to license it for a commercial endeavor is the right thing to do. They should be commended for their effort, but for some reason most of the comments are chastising them for it. I say good on them.
Are they stupid? As Apple can clearly demonstrate, the BSD license is non-toxic. You should tell them to tell their legal staff to do their homework (and justify their paycheck) to learn the differences between one open source license and another. Simply banning all open source licenses is as stupid as declaring all muslims as terrorists.
If there had been copyrights and patents at the dawn of man, the first and last tool invented would have been the stick; lawyers, lawsuits, and the judges of Eastern Texas would have prevented all derivative works.
Orwell: "In a Time of Universal Deceit, telling the Truth is a Revolutionary Act"
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?"
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.
Really? Every proprietary piece of software I've worked on, had that in its Eula. Who knows what the purchasing companies losses might be if you left a dangling pointer? You never know how someone is going to use a piece of software.
Well.. maybe. Or Maybe not. But Definitely not sort of.
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.
It can be used as one wants but they also offer a license for the occasions like you've specified. Check out:
http://www.hwaci.com/cgi-bin/license-step1
- Tjp
I am in wallow with my inner money grubbing capitalistic pig. ... Oink!
Either your client wants to redistribute your code without restrictions, they don't understand licensing or they are persuaded by certain business partners that open source should be avoided.
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?
I hadn't the slightest objection to his spending his time planning massacres for the bourgeoisie... (P.G. Wodehouse)
Some companies will register the software purchased as an asset, and that is the procedure they must follow. They need a contract that specifies the license terms. There also has to be someone they can complain to, or contact to make improvements, or at least explain some code so they can make improvements (if you allow that). This is their procedure for operating business responsibly and that's fine.
Also as someone else mentioned, they might have to have their legal department, or paid external lawyers, analyze carefully an open source contract for viral bits. If they can write the contract for you it is easiest but make sure it contains what is shown below. Or you could use a template on the web.
People here telling you to tell them to buzz off if they won't accept BSD, etc. are not in business, and that's what is scary. Open source programmers need to be able to make a living in order to support doing their open source work, so a company asking you for a commercial liscense for that exact work you have already done is fabulous! Unless you have a job where you are paid to write open source software, this is ideal I should think. More like that and you wouldn't need to do other commercial work, right?
A commercial liscense costs money; no real company buys software for $1. The code may be exactly the same as the free version, it is okay to charge money for it.
All you need to do is make it easy for your client to purchase the a non-exclusive liscense to your product. This is actually an opportunity for you. You can make some money now, have a possibility for a support contract or more commercial work in the future, and you can say the code is used in a commercial product, which speaks of its quality.
Things you should specify (off the top of my head - maybe you can find some more information elsewhere):
Your (or your company's) name and address, and theirs. At the bottom, your name and the person on their side, with signatures.
Disclaimer of your liability: That the software is provided on an as-is basis and you the vendor have absolutely no liability for any defect in it, nor for any losses that may ensue through its use, or its legality in some jurisdiction, nor it is intended for illegal uses, or use in mission critical applications, etc. There is plenty of boilerplate around you can find that says this. (Assuming they are just buying something of yours and they aren't hiring you to create something for them. If they were, you'd have to guarantee against fatal-level defects, and that it meets a carefully agreed-on specification. Things like behavior in a cluster, usability on a certain architecture, 64-bit, Y2K or security related vulnerabilities would then require you to maintain it. You should add in it that any work to make improvements or repair bugs will be charged separately.)
The price. Charge them a reasonable price for it, this is a commercial license and you can include some support with it. If you include 10 hours support for free then maybe $1000 is okay, or more it depends on what the amount of code is of course. Charge for additional work you do at a certain hourly rate too if you want. Maybe you could discuss that here. You could sound them off about the price verbally. Priced beyond a certain threshold will make the decision get booted up higher.
The deliverables. Usually they need something physical. Make a CD with a nice label, write a short instruction manual, and print it out on paper (also included as a PDF or text file inside the CD). The CD and manual are physical assets that they can put in the vault and have available for software audits.
Your responsiblity to support them. You may be tempted to say support is free forever, but don't do that, it costs you your time and they want value. Say limited support for a short amount of time and if they want it you can make some separate consulting or support contract with them.
If they are paying you then you can afford to provide them with support to get up and running, or to discuss wit
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.
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.
I'm old enough to remember when discussions on Slashdot were well informed.
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.
If builders built buildings the way programmers wrote programs, then the first woodpecker would destroy civilization.
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.
> 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.
That's not so clear-cut. You obviously define "chicken-egg" as "egg from which a chicken grows" but "an egg laid by a chicken" is an equally valid definition. Indeed, one could even argue that it is a better definition, because for example from those chicken eggs you get in a supermarket in general there couldn't grow a chicken. Now applying that definition, the egg that your almost-chicken laid was clearly not a chicken egg, because it wasn't laid by a chicken. From this almost-chicken egg then grew a chicken, which subsequently laid chicken eggs. Therefore the chicken was first.
Of course all that ignores that there's no clear-cut line between chickens and non-chickens anyway.
The Tao of math: The numbers you can count are not the real numbers.