How much do open source license terms matter?

How much do open source license terms matter?

Summary: In practice the relief available to an open source vendor is limited by the fact that the customer has the code. You're trusting them to treat you fairly, under the terms of the license, but the chances any dispute will wind up in court is small.

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Armin Shimerman as the Ferengi Quark in Star Trek: Deep Space NineA lot of time is spent here on the differences among open source licenses.

Where you stand on the open source incline, whether it's near the top with a Microsoft license, at the bottom with the GPL, or somewhere in the middle with a BSD license, is supposed to matter.

But, almost unspoken in Matt Asay's post today is a key point. These claims are, on the whole, untested. (Armin Shimerman, shown here as Quark, also appeared in 2005's "What the Bleep Do We Know?")

That's why wise heads in the blogosphere are spending time debating a case involving, literally, an Artistic License on model trains.

In this case it's the nature of the license, and its basic enforceability, which appears to be at issue. There is, as yet, very little case law on the mixing of licenses, or on different terms used in different open source licenses.

The reason is that all open source follows what Trekkies will recognize as the first Ferengi Law of Acquisition. "Once you have their money, never give it back." For money, read code.

Open source overturns the trust relationship which existed in software for a generation. The old rule was you took their money while giving people nothing and guaranteeing them nothing.

It's not a sale, it's a license, a permission to use the tool.

In open source, customers get the code, even before they give the writer a dime. They get the trust, not the vendor. Michael Tiemann of the OSI might call this "libertarianism in action."

In practice the relief available to an open source vendor is limited by the fact that the customer has the code. You're trusting them to treat you fairly, under the terms of the license, but the chances any dispute will wind up in court is small.

It's a tough business, basing your future on trust in your customer. Surprising how many people have the lobes for it.

Topics: Legal, Open Source, Software

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3 comments
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  • You didn't go far enough in the change...

    With legacy Microsoft-style EULA's, the people/organizations that are most likely to infringe the licenses are "End Users". This does not extend to FLOSS, where the people/organizations that are most likely to infringe the license are competing software vendors.

    This flips on its head the whole issue of copyright infringement and who software authors have to trust and who they might be forced to sue. It also changes the dynamic of how many people they have to worry about (FLOSS is a tiny number of competing projects/vendors, Microsoft is nearly everyone), and thus how expensive the monitoring and/or litigation will be.

    For the average "end user" of FLOSS software, all they care about is that they don't have to obtain additional permission or make additional licensing-related payments in order to use and/or share the software on as many computers as they wish. The licenses authorize what they want to do, and there is really no complexity for them to ever worry about, nor is it really possible for them to infringe the license. All the complex clauses of FLOSS licenses relate to activities that would be carried out by the few software vendors/authors who make and distribute modified versions.

    Compare this page http://gpl-violations.org/ to the excessive complexity (and downright invalid statistical methods) from the BSA and their regional spokes-groups.

    It also turns out that this turning on its head and simplifying the infringement question is the best solution to the infringement problem that BSA alleges to have.
    russellmcormond
    • Excellent points, Russell

      Thanks for bringing them to my attention, and the attention of other readers.

      It's blog comments like this which make the whole thing worthwhile...and no I'm not being flip there.
      DanaBlankenhorn
    • Right Arn! nt

      nt
      Ole Man