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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."
Hi AC,
Since I did advise Lexis Nexis to use the Affero GPL 3.0, a license of the Free Software Foundation, and they have done so, I think this should not be considered as "dissing free software" :-)
And yes, it really is ironic that GPL can be used to drive commercial development and that people will pay you for the right to not be under the GPL terms. But this is not dissing free software, it's commenting on the economic paths that it creates.
Bruce Perens.
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...
Consider why people want to have their work accepted by the project, rather than just maintain their modification independently. Consider the hoops that companies jump through just to get Linus to accept their patches. Now, consider that LN will maintain your modification for you with paid employees, if they accept it. Yes, there is value in that.
Bruce Perens.
People can already "build on it", yes -- but they would have to fork it to do so, and there's a LOT of reasons why you may want to contribute upstream and not fork your own.
For one thing, if you care about whatever your project is that is using the software, you want to stay as close to the main line of development is as possible -- since its being actively developed and maintained by a paid group of people, in addition to whatever the community contributes.
For another, if you /don't/ get your change to the upstream, then that is a burden on you forever -- you will have to maintain that change as the main line evolves. Your patches won't apply cleanly forever. Now, you may just dump out a patch and move on and never upgrade, and if that's what you wanna do.. okay, fine.
There's lots and lots more. If you can't see why wanting to get your changes integrated instead of just forking your own isn't desirable, well... okay whatever :)
The "covenant" here means that the company is promising something to you in exchange for requiring you assign copyright. Its up to you to decide if the value proposition there is worth it to you -- most other contributor agreements I've seen in the past I thought were kinda greedy (unless it was to a neutral/Open-Source organization such as Python or Apache which I could rely on to not go private), since it was always one-way. This is at least something, and I'm not sure what want more of if I were negotiating -- they couldn't realistically promise my lines be open forever, as code evolves a lot more organically then that.
A promise to either release it all permissively, so /anyone/ who contributed -- be they commercial interests (remember, some of these "contributors" aren't Open Source people per se, who care about GPL or BSD or whatever, but are companies who may use that software and are contributing to the platform) or open source users can use it how they like.... or to support and maintain it for three years after their last accepted contribution (during which you're free to fork), seems a pretty decent compromise to me.
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
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
In general, companies want to be able to enforce the copyright of the entire product. It is possible that a company could be convinced to join the scheme as you propose it, but the risk and legal load for the company are appreciably higher than what I have proposed, so the company would have to be expecting to get a lot from the community in order to justify that. I'm not sure the balance would work for the company.
Bruce Perens.
In general, companies want to be able to enforce the copyright of the entire product. It is possible that a company could be convinced to join the scheme as you propose it, but the risk and legal load for the company are appreciably higher than what I have proposed, so the company would have to be expecting to get a lot from the community in order to justify that. I'm not sure the balance would work for the company.
I agree - having multiple dual licensing agreements to maintain and ensure you don't violate any terms would be a nightmare. Since Lexus - Nexus would not own all of the software it would make a sale of the company or rights to the product very complicated.
That said, would it be unreasonable for Lexus - Nexus to grant the developer an unlimited, non-exclusive license to use and resell his or her code? That way, L-N would retain ownership but the original author could still benefit from their contribution. While most code would probably be too specific to really be valuable on it's own, it would avoid the situation where someone creates something that has application elsewhere but now no longer owns it and thus can't use it. While they could use it in another OSS project under terms of the GPL, if they ever decided to commercialize their code in a proprietary manner they conceivably could not due to copyright law.
I'm a consultant - I convert gibberish into cash-flow.
That's VERY suspicious, because the vast majority of commercial products out there do NOT have control of all the copyrights used in their products.
The whole "oh we need copyright assignment because otherwise we can't create a viable commercial product" argument is baloney.
Maybe, in their particular case, they can't, because of the aforementioned inability to capture the code so that only they can exploit it commercially (they want a "monopoly" on dual-use licensing). Or maybe they're just over-reaching, just like all the others who demand copyright assignment when the author granting permission to use the code commercially is more than sufficient.
Look around outside the open-source world. Most software that you buy is written by businesses that don't own all the rights to the code - they license various code libraries, data, etc.
People distribute commercial Java products - they certainly don't own all the copyrights to Java. People distribute commercial programs that run under Windows - they certainly don't own all the copyrights to the redistributables that came with their compiler, or the class libraries they licensed from 3rd parties.
Here's a thought - try switching your argument around - "would it be unreasonable for Lexus-Nexus to get a grant from the developer for an unlimited, non-exclusive license to use and resell his or her code?"
Really, what is so "wrong" or "complicated" about that? What's sauce for the goose is sauce for the gander. Why, in the Open Source world, do people suggest we just bend over when someone asks for a copyright assignment? Are we *that* needy of validation that we'll just give it up for the asking?
Someone else explained that. But I'll give it a try as well. There are no doubt a number of strategies that would be even better for the Open Source developer. The problem with those strategies is: what motivates a company to participate in those strategies? Especially a company that has invested a significant fraction of a Billion on the product, and we have so far invested nothing?
Bruce Perens.