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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
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 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
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.
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.
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.
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.
Jobs? Which jobs?
"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.
Move Sig. For great justice.
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.