Plugins licenses and Client Agreements

[Tim Case]

My client sent me this agreement drawn up from their lawyer that
included the following:

(c) the Contractor shall not bundle with or incorporate into any Work
Product any third-party products, ideas, processes, software, codes,
data, techniques, names, images, or other items or properties without
the express, written prior approval of the Company;

Now, I advised them from the get go that this doesn't make sense
because we are using Rails which has an MIT license and permits us to
use Rails for a commercial website, so a clause like this doesn't seem
to take into account that we are building a website and not packaged
software.

However, I don't know what to do about this as far as keeping the
lawyer appeased about the plugins I'm using. Some people license
their plugins with MIT some just don't include a license. For those
that don't include licenses do I have to contact them for license to
make this truly legally kosher?

What do you guys do about this?

[Paul]

If you've already discussed this with the client, isn't is as easy as
getting them to write a (short) approval that says basically 'Yes, you
can use Rails'?

I haven't seen this clause before, but I have seen other to the effect
that if third-party 'stuff' is to be used, that I'm responsible for
the associated licensing.

>From their perspective, I'd think they just don't want to get caught
after the fact in a situation they weren't aware of and have no
recourse.

[Jon Dahl]

Yeah, about 50% of our clients get touchy over that kind of thing. We usually compromise by saying that MIT- and BSD-licensed code is expressly permitted, and that we need to get prior approval for more restrictive licenses ( e.g. GPL and LGPL).

As for plugins without a license: I think that by default, if a license isn't included or clearly stated somewhere, the code is NOT free for you to use, and it is certainly not open source. A license grants permissions; it doesn't revoke them. We've had to email a few plugin authors asking them to put a license into their plugin or at least to let us know what the license is.

Jon

[snacktime]

Personally I would talk to the attorney myself and explain to them why
that clause is unworkable and how to fix it. The attorney is just
working with what they know, the problem is they don't know how
development in the open source world works and that most projects make
heavy use of libraries that are either copyleft or copyright by
someone else, even though using them in no way violates any
intellectual property rights. Once they understand this I'll bet they
can come up with a solution. Normally the attorney will work with
you. If for some reason the attorney or client won't let you help and
are unreasonable, then walk away.

For example, adding a clause to that paragraph which limited it to
only things that would violate the intellectual property rights of a
third party would probably solve this particular problem. Not sure
what exact wording you would need to put in their as I'm not an
attorney but you get the idea.

Chris

[Tim Case]

Hi Chris, thanks for the reply. Unfortunately, since I first posted
things haven't changed much. My client's lawyer took care of looking
at the licenses for Ruby and Rails and gave them the okay to my
client. For the plugins it's a different case, apparently the
conversation between my client and their lawyer went along the lines
of, "We need this in case someone wants to acquire you, if we are in
negotiations and have any potential license arguments it hurts our
side". So, not wanting to have to track down license holders I asked
if I could assume the responsibilities for the licenses.

No go.

Trying to explain to a lawyer how open source software works in a
legal fashion is beyond my skillset as a developer. I can debate why
Ruby being slow is a red herring in the Rails scaling debate, I can
pursuade why database contraints aren't needed if you aren't
integrating at the database and also why you shouldn't integrate at
the database (especially now), I could even argue that for failing
software projects 90% of them fail before the first line of code is
even written. But...

I can't argue with a lawyer about how open source licensing works
because I'm not a lawyer, and I'm not even sure I understand how it
all works.

Now at this point I would make a very long and impassioned argument
why the community should be taking care of this problem, and that
plugin authors should be cajoled and pleaded with to explicitly
include licenses with their plugins... But that wouldn't be very
Rails like would it?

Instead, DHH once again does it for me...

Giles Bowkett - Quotes and Notes from DHH's Railsconf 2007 Keynote
http://gilesbowkett.blogspot.com/2007/05/quotes-and-notes-from-dhhs-railsconf.html

""The MIT Assumption" - slide title. Here's something actually
interesting - DHH loves the MIT license. MIT license is autogenerated
by default if you build plugins or whatever. There's something funny
about that, but it's a very useful thing. DHH's business sense is a
huge part of what makes Rails great."

Problem solved in the future, but for now it looks like I have track
down the licenses or pull the plugins.

Tim