Can I sell mobile application that uses Kiva?

[Misha Peric]

Hi everyone,

I have one dilemma. Kiva API looks very interesting and I'm thinking
about creating mobile app for microloans. But I'm concerned about
this:

4. Do not use the API for commercial use
Kiva is a 501(c)(3) non-profit and, by law, we cannot allow our
resources to be used for commercial purposes. Commercial entities
can
use the API to charitable ends in line with Kiva's mission, but if
you
have any doubts that what you are doing is within our terms of
service, please contact us.

If I sell the application that uses your API as part of its
functionality, is that commercial use? If I put ads on application
that uses your API is that commercial use?

To be honest, if there is no legal way for me to create at least some
money with my app I dont have much incentive in creating it in the
first place.

[Ed Zwart]

What about solving world poverty as a motivation?  ;)

[Misha Peric]

First need to solve my poverty ;-)

[Simon Phipps]

This is a very important question. If this restriction is for real, it
means that applications using the Kiva API can't be released under a
open source license.

S.

[john martin]

i think that depends on the open source license you're using.  i'd guess that the BSD license (and probably the GPL and LGPL) wouldn't work, since they allow for commercial re-use.  but isn't there a non-commercial creative commons license?  or something close enough that you could adapt it?  worst comes to worst, you could write your own license, though you'd probably want a lawyer to help with that.

(take that all with a grain of salt, IANAL, just a bit of an intellectual property nerd)

[sky...@kiva.org]

Misha,

Thanks for the question. It's not an easy one to answer and we are
still digging into non-profit tax law on this to make sure we have the
correct answer and explanations for you. Until that point, I can give
you some guidelines.

One thing that is clear that if you were selling a product which was
designed to be used with Kiva in any sense (the API, the site, the
culture, etc.) and you wanted to benefit personally from that product,
you could not use any of Kiva's intellectually property as a part of
the distributed product (logos, photos, trademarks, etc.). Even for
non-commercial uses of the API it is good to abide by this rule as
mentioned under "Be your own brand" in the Developer Code of Conduct.
So, as a hypothetical example, you could create a special leather-
bound paper journal designed specifically to sell (for-profit) to an
investor to help him manage his microloans, but you couldn't put the
Kiva logo on it or pre-populate it with data from Kiva as a
reference. Well, at least you couldn't do this without licensing
these assets from Kiva and paying Kiva for the assets (with cash or
some other agreed upon terms). Because Kiva is a 501(c)(3) all of our
assets exist to benefit the public good, so in a sense, you must
compensate the public trust for assets you used to benefit
personally. If this sounds complicated, it is because it is!

Secondly, you should consider the marketability of a paid application
to your target audience, Kiva Lenders. Generally, the Kiva community
is accustomed to tools being made available for free to users for the
sake of participating in the alleviation of poverty. Also, Kiva
Lenders themselves do not benefit financially from the loans they
make. In fact, many of them donate money to help Kiva accomplish its
goals. So, you should consider how many people would be attracted to a
paid app designed to work with Kiva. It's possible that an application
could be made so compelling that Kiva "power users" would want to
purchase it to help manage or accelerate their charitable efforts, but
I could see philosophical objections impeding sales as well.

That said, the best advice I have is to not pursue a paid-app model
until we have a definite answer for you. It's likely that the mobile
store through which you are selling might also block such an app in
fear of violation of a Terms of Service or copyright (particularly if
you used Kiva assets to build or market your application). We realize
that the incentives for developing on the Kiva API, a non-for-profit-
run software interface, can be very different for those of commercial
APIs and we're certainly open to more ideas of how we can facilitate
the right motivations that result in the right products for the Kiva
community.

skylar


PS, I'll pass on the open-source licensing question until we get the
first question answered, but my sense is that though an open source
license may grant you certain rights (eg, the ability to use code for
commercial use) it doesn't mean that you are able to do so due to
other restrictions based on your use of that code (ie, the Kiva API
Terms of Service). So it may be possible that releasing code that
accesses the Kiva API under a general license that explicitly *allows*
commercial use (but does not necessarily guarantee it in all or any
particular situations) would not be a violation of the Kiva API TOS -
at the least, this has been our intention so far.

On Feb 21, 2:18 am, john martin <john.mar...@gmail.com> wrote:
> i think that depends on the open source license you're using.  i'd guess
> that the BSD license (and probably the GPL and LGPL) wouldn't work, since
> they allow for commercial re-use.  but isn't there a non-commercial creative
> commons license?  or something close enough that you could adapt it?  worst
> comes to worst, you could write your own license, though you'd probably want
> a lawyer to help with that.
>
> (take that all with a grain of salt, IANAL, just a bit of an intellectual
> property nerd)
>

[Justin]

Just to add a question to the pile - how far does this go: If someone makes a small amount of money to cover costs (i.e. to not lose money) but is not an overt commercial entity, does that fall under the same "don't use it for commercial purposes"? Or is it just a larger part of the complication pie on the table?

I can understand not making profit completely, but I'd imagine not being able to cover costs would be a big problem for many would-be developers.

Justin

[Misha Peric]

Thank you Skylar for thoughtful response.

Initially I thought that Kiva as an organization was doing charitable
work, I didnt realize that lenders dont benefit financially also. In
that case, you are right, it would certainly be unethical to charge
for application that uses Kiva API.

[Simon Phipps]

Why, exactly? Imagine a very useful, swiss-penknife-of-information
application on an iPhone that displays all sorts of data it gathers
for you across the web. The app costs $4.99. Why would it be wrong for
the author of that app to add the gathering of Kiva data? Surely that
would help Kiva and its entrepreneurs?

S.

[Misha Peric]

Actually iPhone mobile application is exactly what I imagined when I
asked the question :-))) We already have some iPhone apps,
http://www.byteout.com/iphone ... and I was really ready to make
something around Kiva API when I examined it, at least until I read
the license :-)

Well I guess if loan lenders are not making any money, charging for
application that uses Kiva data, is like taking charity money from the
people its meant for. As I understand Kiva is created to help those
people in need of those loans, not iPhone developers. But you have a
point, what if that app helps spread the word about Kiva and assists
the process of giving loans? In that respect that would benefit the
Kivas global goal. I'm guessing they are not getting everything for
free because they are charitable organization. I guess you need to
follow the steps of scientology and become a "religion" for that
one :-))

And dilemmas like this are exactly why I asked Kiva guys directly, its
their mission and their data so whatever they decide is a proper use
of their data is final for me.

[Srinivas V]

Skylar,

You wrote " Well, at least you couldn't do this without licensing

these assets from Kiva and paying Kiva for the assets (with cash or
some other agreed upon terms). Because Kiva is a 501(c)(3) all of our
assets exist to benefit the public good, so in a sense, you must
compensate the public trust for assets you used to benefit
personally."

Our startup is interested in developing a paid iPhone application
which will bring a newer segment of lenders under Kiva's fold. Users
will initially pay to download the application. At some points of the
application flow, we want our users to see images from Kiva. Then they
get a choice of going to Kiva's website to lend $25, or ask us to lend
$25 to Kiva. Thus after the images are used, any payments that the
users will make will ultimately end up in Kiva.

Since our startup will be lending on Kiva as well, will that suffice
as a contribution to Kiva - especially, since we plan to continue re-
lending that money and never take it out? Alternatively, can we give
all our lending money to a charitable trust which will invest that
money for lending in Kiva ?

If neither of the above are allowed per your Terms of Service, how do
we license these assets from Kiva? We had emailed cont...@kiva.org,
and we were told to post our question in this forum.

Thanks,
Srini

[Skylar Woodward]

Just a quick correction, all inquiries as to commercial use of the API
can be sent to cont...@kiva.org and we will follow up with you.

(If you want to post here, that's fine too, but we'll likely follow up
with you personally unless the question is pertinent to many
developers.)

skylar

[sky...@kiva.org]

Thanks for your patience. We have an update on this topic for you that
should help.

For sake of simplicity, let's think of three buckets of applications:

1. Free applications that unquestionably abide by the TOS and Code of
Conduct. (ie, most of the apps available now)
2. Paid or Ad-supported applications that are offered with a value
basis independent of Kiva, but include Kiva-related features or
content.
3. Paid applications that where the value is dependent on Kiva
functionality or content. These apps may or may not donate to Kiva.
4. Everything else

We are comfortable now with sanctioning apps under the TOS in both
buckets 1 and 2. Anyone considering #3 (regardless of the potential
value back to Kiva) should check in with us first via
cont...@kiva.org. While category #3 (and potentially other
categories, represented by #4) could be really awesome, we don't have
capability to monitor legal compliance on these in a scalable way.
But, you can contact us, and we'll see if we can accommodate the model
and validate the use of Kiva resources under the TOS and the law.
(Sorry, no promises.) The idea is to make the API and app development
as self-service as possible, which is why we're working to define
clear models that don't depend on case-by-case agreements or approval.

Let's talk more about bucket #2 because there are certainly areas of
gray between each boundary.

An application in bucket #2 might be an app or service that makes
money by collecting fees or showing ads. An example (App A) would be a
paid iPhone application that helped you manage investments. Let's say
the application has been selling for a year now, has a healthy number
of purchases behind it, thus reinforcing a healthy business for the
developer. One day, the developer decides to add a "Kiva" button that
let's you link to Kiva and pull down your Kiva loan information. The
application price stays the same and the application is still sold on
the basis of the existing features. In this case, the Kiva integration
is a good will attempt to help lenders connect with their loans. The
developer receives no clear benefit from adding Kiva integration, or
at least it is easily offset by the value of connecting people better
with Kiva. This application requires no special approval and falls
under the TOS.

You could imagine a similar application (App B) offering similar
functionality, but from day 1 provides Kiva integration. The
application is marketed specifically as helping you track your Kiva
loans, and doesn't offer features to help you integrate w/ any other
service. The application is sold for the same price as App A but
offers fewer features. Even though it's called "Loan Tracker" (not
Kiva Tracker, etc.) it's more difficult to argue here that the
application is not leveraging Kiva resources and Kiva lenders to
profit. App B isn't necessarily in violation of the TOS, but it might
be. It's a question of perception, intent, and whether or not we could
prove in court that the app doesn't benefit financially from Kiva in a
way disproportionate to the value to Kiva. To do this, we'd probably
need to know how much money the app made, how much lending the app
facilitated, and guess at how much of sales were driven by non-Kiva
features. Since app has few non-Kiva features and no previous
demonstrated value apart from Kiva, it's probably best to assume
bucket #3 (or change the model to focus on Kiva-independent value).

One final example - imagine a website (App C) that shows you cool
videos. Before every video, the application shows an ad. All the
videos on the site are copyrighted or public domain. The website has a
model where it pays copyright owners money relative to ads shown in
conjunction with the rights-owners videos. One day, the site decides
to show Kiva videos about borrowers. On each video page, they make a
link to donate to Kiva or visit the borrower profile. For Kiva
videos, no ads are shown. This app fits in bucket #2 even though it
makes money on non-Kiva video content through ads.

As a contrast, imagine that App C decided to show ads before every
Kiva video out of a desire to donate the profit to Kiva in the same
way it compensated copyright holders. This quickly becomes a bucket
#3 app. It's probably one we could approve, but we'd need to work out
an agreement with the app developer to handle compensation for Kiva
content on which revenue was generated.

Hopefully this helps green light some of your app ideas. But, the
takeaway here is, if you're not sure if your app falls under the TOS,
just ask.

Cheers,
skylar

PS, using an app_id in requests for any app (1,2, or 3) helps us
quantify value in all these cases. :)

On Apr 22, 10:24 pm, Skylar Woodward <sky...@kiva.org> wrote:
> Just a quick correction, all inquiries as to commercial use of the API  

> can be sent to contac...@kiva.org and we will follow up with you.

>
> (If you want to post here, that's fine too, but we'll likely follow up  
> with you personally unless the question is pertinent to many  
> developers.)
>
> skylar
>
> On Apr 22, 2009, at 10:10 PM, Srinivas V wrote:
>
>
>
> > Skylar,
>
> > You wrote " Well, at least you couldn't do this without licensing
> > these assets from Kiva and paying Kiva for the assets (with cash or
> > some other agreed upon terms).  Because Kiva is a 501(c)(3) all of our
> > assets exist to benefit the public good, so in a sense, you must
> > compensate the public trust for assets you used to benefit
> > personally."
>
> > Our startup is interested in developing a paid iPhone application
> > which will bring a newer segment of lenders under Kiva's fold. Users
> > will initially pay to download the application. At some points of the
> > application flow, we want our users to see images from Kiva. Then they
> > get a choice of going to Kiva's website to lend $25, or ask us to lend
> > $25 to Kiva. Thus after the images are used, any payments that the
> > users will make will ultimately end up in Kiva.
>
> > Since our startup will be lending on Kiva as well, will that suffice
> > as a contribution to Kiva - especially, since we plan to continue re-

> > lending thatmoneyand never take it out? Alternatively, can we give
> > all our lendingmoneyto a charitable trust which will invest that
> >moneyfor lending in Kiva ?

>
> > If neither of the above are allowed per your Terms of Service, how do

> > we license these assets from Kiva? We had emailed contac...@kiva.org,

> >> make. In fact, many of them donatemoneyto help Kiva accomplish its

> >>>>>moneywith my app I dont have much incentive in creating it in the
> >>>>> first place.