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The Covenant - a New Open Source Strategy
Bruce Perens writes "Lexis Nexis has Open Sourced HPCC, the parallel software that they use for handling extremely large data. Databases that, for example, hold records for every consumer in the U.S. can be processed with this software and its task-specific language. As Strategic Consultant for the company while they decided to participate in Open Source, Open Source co-founder Bruce Perens designed a new Covenant between Lexis Nexis and the Open Source community that makes dual-licensing more fair to the Open Source developer."
Same stuff, 'nother day.
I'm online, if you'd like to discuss this story with the source.
It might seem ironic that the GPL, a license designed to give everyone the freedom to use, modify, and redistribute software without charge, becomes an effective capitalist tool when used in the context of dual licensing. Companies will pay to avoid granting the GPL's freedoms. (from Perens's HPCC "white paper")
So this is fuel on the old discussion between "Open Source" (Bruce Perens et al) and Free Software (RMS et al)? This is about choosing sides, and Perens has sided with the devil (Lexis Nexis). No thanks.
The goals of this plan are to capitalize on the innovation and new ideas that come with an Open Source community [...] and collect direct revenue from the product – not just revenue from ancillary products like support and training.
sysadmins and parents of newborns get the same amount of sleep.
Bah - I have Open Sourced HPCC in my pants!
the product is to be dual-licensed under the Affero GPL 3.06 and a commercial license. In exchange for each copyright assignment from an Open Source developer, the company will covenant to continue to support and maintain the Open Source version of their product for a period of three years – they won't take it private during that time. The three-year clock will start anew every time there's another copyright contribution. If the company cannot continue to support and maintain the product as Open Source, HPCC systems promises either to contribute the product to a non-profit under permissive licensing like BSD, or to remove the developer's contribution, and all others for which the three-year clock is still running, from the product.
Unnecessarily complicated. If it's already under Affero GPL then people can already build on it-"contributing the product to a non-profit" doesn't add anything to that and there's no reason to assume that people who choose to contribute to a GPL project want to have their code licensed under BSD anyway (and vice versa) - some will be happy with this but others won't. On balance, what's the point?
I worked on LX's HPCC project. Good luck to them!
If I were contributor to a dual licensed project, I wouldn't mind having a promise that the product is kept alive and open sourced for 3 years after my latest contribution. I don't know if it's enough to justify copyright assignment, but at least it's an acknowledgement and not a bad one...
Call John 117!
You got the touch!
The three-year clock will start anew every time there's another copyright contribution.
Per product, or per version? How about forks?
What happens to the covenant in a bankruptcy hearing? Bankruptcy judges have relatively free reign... Could it be bad?
If starting anew, isn't it simpler / cleaner to have a non-profit that owns the open source code, and a private for-profit that applies the code? If not starting anew then you've got some pretty confusing balance sheet issues with transferring ownership, in which case the covenant makes sense.
Thus, the Open Source developer is assured that the work won't be taken private for a significant amount of time
Should I care? If version 7.4 is GPL, and they close 7.5 and above, can't I just fork off 7.4 and run it myself aside from any trademark problems?
If a company is planning on taking ye olde version 1.3 and going private with it in just 6 more months, perhaps because they're insane, regardless, wouldn't that encourage them to not accept security patches from the community? Not saying this "enforcement aspect" is good or bad, just saying it "is".
and the continued participation of Open Source developers provides a strong incentive for the company to never take the product private.
What if the management team intends to burn it to the ground to extract maximal profit for one quarter at the cost of permanent long term damage, in other words traditional American management style? Your design assumptions are both sides are perfectly informed, rational, and free actors, but they are not, which likely impacts the outcome.
Through the covenant, their use of dual-licensing, and their innovative software, HPCC Systems will gain broad acceptance of their product and will profit from its software and services.
Agreed, that is the most likely outcome. My criticisms are about using the new covenant in other "unlikely" situations. If everything's balloons and unicorns you don't need to worry about the downside, but if you're going to bother with the paperwork, you should be focusing intensely on the downside because that's when you most need the paperwork... Best case scenario you have a PR win. Worst case scenario is ... better but not entirely perfect either.
"Science flies us to the moon. Religion flies us into buildings." - Victor Stenger
It's written in C++.
"Bruce Perens writes . . . Open Source co-founder Bruce Perens designed a new Covenant between Lexis Nexis and the Open Source community"
(a) why are you referring to yourself in the third person; and (b) you are not the co-founder of open source, and no, we don't care that your little group "coined the phrase" in 1999, that was decades after open source was invented.
... they immediately declare a moratorium on external contributions to source, but otherwise continue business as usual, selling licenses and support contracts for the product. What was gained by Mr. Perens' covenant?
are 7000 users ReciprOcating Guests. Some pEople parts of you are
What about a "contributor license agreement" that lets the main company release your stuff under a commercial license?
In exchange for each copyright assignment from an Open Source developer, the company will covenant to continue to support and maintain the Open Source version of their product for a period of three years – they won't take it private during that time. The three-year clock will start anew every time there's another copyright contribution.
Now, consider that LN will maintain your modification for you with paid employees, if they accept it. Yes, there is value in that.
Indeed there is, for both parties. But there is a legal asymmetry, since one party actually owns the code, and it's not the coder.
One consequence is how bankruptcy affects ownership, control, and related duties. Exactly how that covenant could be gutted during bankruptcy proceedings is likely to be of considerable interest to any coder who submits to this license. At present, the covenant is silent on the issue of bankruptcy, but includes the text:
"You assign to HPCC Systems all copyright rights, title, and interest to the Source Code."
Unless the contract were to explicitly state that the company entering bankruptcy would immediately cause all rights to revert to the coder, we can expect that the code and copyright will be treated like just another asset. Contract terms limiting disposal of assets can be arbitrarily modified or thrown out by a bankruptcy court and the code rendered immediately closed source by court fiat. Since the copyright has been assigned, the AFPL could be canceled to further boost the disposal value of the asset.
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
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She got the moon in her eye
Well, I'll discuss with their attorney whether there is a need for a change in terms specific to bankruptcy. But if the company goes bankrupt, they didn't benefit from the Open Source cooperation sufficiently anyway. So, I'm not sure how much we need to flog that horse. It seems unlikely that Oracle is going to pick up such a product in an asset sale and suddenly make a smash hit out of it.
Bruce Perens.
Ubsenet 1s roughly
Because it's Lexis Nexis, and they're grade-A, anti-human assholes.
Let's not introduce religious baggage into our communities, OK?
Lobbies are plenty of money to force their interests. Normal people has no power.
I wish I had mod points.
Well... I hope Master Chief John 117 will take care of it.
I agree. I fail to understand the need to assign copyright. Surely the developer can just give HPCC a license to the code which includes the right to relicense the code under any commercial license they wish so long as they continue to support and release an open source version. Call this the HPCC Turkish Delight license and then just say that you are releasing your code under this license instead of GPL/.... By assigning copyright HPCC could use the code in a different, closed source product without compensating the developer in anyway.
I think you can see why these conditions are necessary. As a potential contributor I would be totally demotivated if I had to hire a lawyer to analyze a covenant before I could sign it -- and even then I would worry about being steamrolled by BigCorp's legal team.
Making a covenant public and stable gives the Open Source community a chance to scrutinize it and declare it fair. This would greatly lessen my distrust of the covenant and increase the chance that I would sign.
Affero GPL does not meet the conditions of the FSF's Free Software definition. In particular, it fails on Freedom 0. A few years ago, they never would have approved this, but they took an uncharacteristically pragmatic turn and decided to ignore their ethics in favor of achieving a result they desired that could not be achieved with Free Software licenses alone.
The basis of the FSF's definitions are their view that it is unethical for one to have a program but not have the ability to use it, study it, and modify it. When the program is on someone else's server, you don't have it, so the ethical issues do not arise. As Stallman once explained:
He's talking about proprietary programs there, but that doesn't make a difference. His point applies to any software running on someone else's server.
Orthogonal on whether this "covenant" is fair or not, will work or not let's consider NexisLexis, a subsidiary of Reed Elsevier. NexisLexis provides a case law database citing adjudicated US court decisions and other legal materials. Think about this for a moment: A US court (taxpayer funded) decides a case, then hands over the results to a private company to sell). What's wrong with this picture? ... Bueller? ... Bueller? ... Anybody? ... These materials should be in the public domain. We, the US taxpayer have already paid for their production. We should NOT have to pay to look at them.
Now, consider Reed Elsevier. Big science publisher. Much of what is published is ... you gussed it: US Taxpayer funded. Have you seen the price of refereed research publications? We have to pay for it again.
In my opinion, NexisLexis and Reed Elsevier are running a scam, nothing more, nothing less. They are selling something they have no rights to in the first place. Their officers and directors should be prosecuted to the fullest extent of the law and the company liquidated. All their assets should be handed over to a public interest outfit for custodial care and free access. ... Just my opinion. Yours may vary.
If you were the original author, there is some chance that a court would find that any second coding you do would be covered by the original copyright. You certainly wouldn't be able to claim "clean room" non-exposure to the original. And, whether the court would find that or not, that could still be an expensive proposition, if you coded something valuable enough for a post-bankruptcy assignee to decide that your second coding of it was interfering with their profits.
Small chance, you say? You're absolutely right. But OTOH, any company that wouldn't mind you using something that you yourself created the second time shouldn't really mind you using something you created the first time either.
No, I have to agree with the assessment of others that copyright assignment is a non-starter. There is a continuum of potential contributions, but at one end you have small bugfixes that are useless for any other piece of software, so nobody should care who owns the copyright. At the other end, you have major pieces of work that might contain large libraries of independently-useful functions. If you want to attract developers to create and contribute those then you shouldn't limit their ability to reuse their own creations.
Furthermore, if it's merely a license grant rather than a copyright assignment, then the damage that a wayward bankruptcy judge can do (think what happened to Novell's revenue stream in SCO) becomes quite limited.
(1) The 3-year clock doesn't reset if HPCC Systems decides not to accept any more contributions under the "Covenant". The Covenant must be signed by both parties to be valid. Once HPCC Systems chooses not to sign any more of them, after 3 years' time, HPCC Systems owns the copyright free-and-clear to every contribution ever made and accepted.
(2) If HPCC Systems decides to take the code private before 3 years elapse, the contributor must actively request their code be removed, and it will only be removed from subsequent versions.
[By the way, the letter seems so carefully written and documented, up until it mentions a 3-year time period before providing an explanation for what it's about. This makes me even more suspicious.]
This is unintelligible.
none
You know very well that any version control system can do that. Heck, a wiki can do that. It's not that hard with derivative works (which is what edits are to existing lines) to track who checked in what. And for all-new code, you just have to look at who did the original check-in. If everyone who checks in code has already signed off on an agreement that any check-in they do is covered by them granting a specific license, what is the problem? Oh, right - this looks like it isn't about tracking code changes and copyright ownership - its about code capture via copyright assignment by throwing up artificial roadblocks to any other sort of arrangement. You're swimming with sharks. BIG sharks, as in $9 Billion sharks.
Please do your research on Reed-Elsevier (the parent company). They track copyright ownership and do rights management for so many of their print and paywall properties that they cannot claim that they don't understand the concept. It's their core business. They understand it well enough to know that they should always try to grab as many rights as they can.
If LexisNexis was giving you a contrary impression, they've yanked your chain good and hard. Here, start on the HPCC TOS page
Who is Reed-Elsevier? Reed-Elsevier is worth over 9 billion.
Their profile
They know how to track this sort of stuff. Really, they have people whose only job is to live and breathe
Yes, but no business person would ever want to torture himself and destroy his business that way. If you don't understand that, I just can't help.
I am signing off of this conversation, further attempts from you will be ignored.
Bruce Perens.
Guess who can't stand the heat and wants to leave the kitchen?
It doesn't work that way, Bruce. You're telling one story here, and I just checked on lwn.com, and you're saying something completely different there there.
http://lwn.net/Articles/458515/
More specifically
And your reply:
Here, you've been arguing that they will only accept contributions if the copyright is assigned to them. On LWN, you gloss over the implications of that, expressed by the poster on LWN, by saying that the developer is free to grant their own work to others. They cannot if they have assigned the copyright to someone else, and you d*** well know that.
This is pretty disgusting behavior on your part.
Since you've bailed on answering the hard questions here let's see how you're misleading people on LWN.
A poster asked you about the implications of assigning copyrights for their code.
More specifically
And your reply:
Of course the covenant doesn't "make you promise not to" - because it doesn't need to. Copyright law "makes you promise not to do so" because doing so would be against the law once you've assigned copyright to someone else (doh!).
Remember, here you've been arguing that they will only accept contributions if the copyright is assigned to them. And worse, you've admitted that you forgot to ask about the author getting a grant-back for other uses. You negotiated with their lawyer, and their lawyer got the better of you. Not much of a surprise there, I guess, after seeing the rest of your responses here and at LWN.
And you're surprised that you're getting raked over the coals for it on both sites? Really? So much so that you have to run away?
Sloppy, half-baked, uninspiring. You come up with all sorts of "excuses" for why LexisNexis and their owner, Reed-Elsevier, the paywall people (you know, the poor poor $9 billion market cap business needs your code to list as a business asset or they'll have big problems!!!OMG!!!), should be trusted, and *need* copyright assignment, such as "they want to be able to list the copyrights as assets" .... gee, maybe we should be as generous to Rupert Murdoch, ya think?
That sounds like a license-back to me. I'll get that clarified.
Bruce Perens.
Read the license, as Perens pointed out in his own posting:
When last I checked, Perens was a licensing professional - and the person who had designed the rules for Open Source licensing.
And your credentials are?
In the case of HPCC's needs, this allows them to continue to own their entire product, and to list their entire product as an asset.
If it is very important that they completely own their product then I think that Open Source is the wrong strategy for them. I very much appreciate what you are trying to do but Open Source is a community effort and the community needs to be the one which owns the project (at least the open source verison of it). I simply would not trust a commercial company with my code. Sorry - HPCC may be very trustworthy but as your original article mentions many others are not (or get taken over, get a new CEO etc.) and giving away copyright is too high a price just because they would like to have some feeling of ownership.
Bruce claims that MySQL never too outside contributions and this was discussed in the EU.
This was not true.
There was some claims to the EU that MySQL AB did not take outside contributions but this was dismissed by me and others.
MySQL Ab did during it's whole lifetime taken outside contributions; There is a lot of bug fixes, ports, security enhancements and features developed by people outside of MySQL Ab. Most of the infrastructure (like connectors) where developed by outside contributors. It's true that when we did get more money, we did hire the best contributors, but that was not a strategy but something that is likely to happen with any successful project that gets money to hire developers.
During 2001 - 2006 we did not take as many contributions as we could have done because MySQL Ab did not have a community department or anyone responsible for handling patches (this was a management decision to save money, not something that was based on any legal advice).
A database is a complex project and it's true that we did not get as many contributions for the server as some other projects. This did however having nothing to do with any 'legal advice' or policy.
Apart from that I think Bruce's suggestion about a new policy is interesting and have some interesting benefits for developers.
One flaw with it is however that there is still a lot of possibility for misuse when used for a project that is just starting.
One should remember that for any big project it takes usually 5-10 years for the project to be a commercial success. If the company now only have to wait 3 more years to be able to close up the product and make it 'theirs', companies will be inclined to do that sooner or later if there is a lot of money to win.
A way to fix this would be to say that after 3 years all current code in the project will revert to BSD. This would ensure that the company can never close up the project from the developers (if they would try, they developers can just wait for the code to be BSD to continue as before). This clause should be required for any project that uses the AGPL license, as project using this license can't be freely used by the original contributors to the project.