[ANN] Time-Bombed Open License - thoughts?

[Fergal Byrne]

An old-school C++ dev and I have started an initiative to combine the best of Open Source with a limited commercial license. It's not a new idea - MySQL creator Monty Widenius thought of something less viral in 2013 [1]. 

The Time-Bombed Open License [2] is the commercial side of a dual-licensed project, best paired with something strongly viral like GPL. Essentially, the project owner has 2 (up to 4) years to commercialise their product and then must go fully Open Source. The license is viral, so any commercial licensees must also use the TBOL and eventually open up their derived products.

One major idea is to foster a culture of disruption of exploitative industries. If you can develop software to disrupt in your local market, your innovation can be used similarly by others elsewhere, and each new startup can improve on your work while earning their keep. Eventually, all derived products become Open Source and are free to all.

We'd appreciate any comments, feedback and assistance from the wonderful Clojure community - we're up on twitter at @OccupyStartups.

Regards,

Fergal Byrne

p.s. I wonder if this might be a solution to the clamour for Datomic to be Open Sourced (cough)? 

[1] http://monty-says.blogspot.ie/2013/06/business-source-software-license-with.html

[2] http://occupystartups.me

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[Colin Fleming]

I'm the author of Cursive, which I'm planning to sell and which will be (mostly) closed source. What I don't see here is what would be the advantage to me in using this license? I'm not releasing closed source because I'm evil, but because I want Cursive development to be sustainable so I can continue to develop it and my family can continue to eat and not live in cardboard boxes. Charging for closed source software is the only realistic model I can see that achieves this goal.

I suspect the Datomic team's reasoning is similar - their pricing is far from outrageous for the sort of product they're offering. What would be the advantage to them in doing this? They would simply lose the ability to charge in two years' time, and they would also lose the vast majority of their clients who also wouldn't want to be bound by these restrictions. Nobody wins, as far as I can see.

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[Fergal Byrne]

Hi Colin,

I'm a huge fan of Cursive, and have heard you discuss the challenge of earning back your investment, so I'm completely on your side on that. This idea is for people who wish to dual-license their tech, but can't see a simple way to have both a GPL-based community and a revenue stream. It's certainly not for everyone, but it is another option for some.

We've already received feedback about the two years, so it'll likely be owner-selectable between 2 and 4 years. The license is transitive, so you'd actually have up to 4 (or 8) years of licensing income to plan for. The limit is to encourage projects to move on to the next major version or new projects, leaving the open source side to continue development.

The "evil" reference certainly wasn't aimed at you (or Cognitect)! That idea is about encouraging small businesses to disrupt exploitative big businesses, and to spread their technology to others around the world. An example would be developing software to run a local Credit Union, helping them to combat the marketing and lobbying might of the big banks. 

Cheers,

Fergal

[Magnus Therning]

On 5 June 2015 at 13:16, Colin Fleming <colin.ma...@gmail.com> wrote:
> I'm the author of Cursive, which I'm planning to sell and which will be
> (mostly) closed source. What I don't see here is what would be the advantage
> to me in using this license? I'm not releasing closed source because I'm
> evil, but because I want Cursive development to be sustainable so I can
> continue to develop it and my family can continue to eat and not live in
> cardboard boxes. Charging for closed source software is the only realistic
> model I can see that achieves this goal.
>
> I suspect the Datomic team's reasoning is similar - their pricing is far
> from outrageous for the sort of product they're offering. What would be the
> advantage to them in doing this? They would simply lose the ability to
> charge in two years' time, and they would also lose the vast majority of
> their clients who also wouldn't want to be bound by these restrictions.
> Nobody wins, as far as I can see.

I gather the idea is to increase the chance of success. By promising
to release it as FLOSS in N years, unless there's a sustainable
business supporting it before then, customers might feel less hesitant
betting on the SW in question, which then increases the likelihood of
a sustainable business appearing.

Whether it'll actually work is something I'll leave for others to discuss.

/M

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[Luc Prefontaine]

I agree. I can't see how you can build a business model out of this.

We already lower the cost for our customers by using open source as much as possible.

Luc P.

Sent from my iPhone

[Franklin M. Siler]

On Jun 5, 2015, at 0517, Fergal Byrne <fergalby...@gmail.com> wrote:

> An old-school C++ dev and I have started an initiative to combine the best of Open Source with a limited commercial license. It's not a new idea - MySQL creator Monty Widenius thought of something less viral in 2013 [1].
>
> The Time-Bombed Open License [2] is the commercial side of a dual-licensed project, best paired with something strongly viral like GPL. Essentially, the project owner has 2 (up to 4) years to commercialise their product and then must go fully Open Source. The license is viral, so any commercial licensees must also use the TBOL and eventually open up their derived products.
>
> One major idea is to foster a culture of disruption of exploitative industries. If you can develop software to disrupt in your local market, your innovation can be used similarly by others elsewhere, and each new startup can improve on your work while earning their keep. Eventually, all derived products become Open Source and are free to all.
>
> We'd appreciate any comments, feedback and assistance from the wonderful Clojure community - we're up on twitter at @OccupyStartups.

I’ve written a lawyer friend who does more than I do with licensing; I teach in this area but don’t normally advise clients on it. I would be concerned that a court might not apply the license as intended, but then of course- you’d have to analyze whether these things ever wind up in front of a judge.

This timed scheme seems like an overcomplicated way of achieving the desired result. It would be simpler, and less restrictive on the dev, to simply escrow your source. If you should become unable to support the software, the escrow agent is directed to publicize the source.

I wrote a bit more about related issues for Mailpile: http://franksiler.com/on-choosing-open-licenses/

Frank



Franklin M. Siler
Counselor at Law ||| franksiler.com

[Fergal Byrne]

Hi Frank,

That's a great post (and the Mailpile post is also a great discussion of the topic), thanks for sharing. 

The GPL already has a clause which allows the owner (and downstream user) to defer, for 12 months, the full obligations of GPL - see this guy's take: https://github.com/zooko/tgppl/blob/master/COPYING.TGPPL-v2-draft.rst

Our idea is a bit more startup-friendly - on the commercial side of the dual license, everyone can keep their improvements/extensions closed for up to the full duration of the time-bomb, but they then have to give it all back.

As to enforceability, I'm guessing copying the language of GPL is hopefully sufficient. These things are rarely tested as far as I know, but I'm sure someone knows better than me.

Appreciate the feedback,

Fergal

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[Franklin M. Siler]

On Jun 5, 2015, at 0711, Fergal Byrne <fergalby...@gmail.com> wrote:

> The GPL already has a clause which allows the owner (and downstream user) to defer, for 12 months, the full obligations of GPL - see this guy's take: https://github.com/zooko/tgppl/blob/master/COPYING.TGPPL-v2-draft.rst
>
> Our idea is a bit more startup-friendly - on the commercial side of the dual license, everyone can keep their improvements/extensions closed for up to the full duration of the time-bomb, but they then have to give it all back.
>
> As to enforceability, I'm guessing copying the language of GPL is hopefully sufficient. These things are rarely tested as far as I know, but I'm sure someone knows better than me.
>

I think the GPL, MIT, Apache, etc. licenses are probably fine for real world use. Why? Because everyone uses them. They are industry norms.

The license you linked is a draft; however, mainline GPLv3 has some specific terms related to timing- see section 6(b).

The thing is that licenses are not “contracts” in the sense that a contract is offer + acceptance + consideration. A license is a promise not to sue, and there are a number of subtle but important things that may or may not work in that situation. For example, there is no blanket rule on the relationship between fair use and a license agreement. All of this is complicated in that purchased software may have a controlling contract on top of the licensing agreement, so the enforceability of the system as a whole can get quite messy.

All I’m saying here: I’m not sure that a court will buy that “if you do X before this date, I won’t sue you; but then if you do this after Y date, I will” is a valid license. It’s certainly not the norm.

[Daniel Kersten]

To chime in on "why would I do this":

Lots of companies already are successfully built on open source, so I don't buy the "but then I can't make money" argument - at least, not as a blanket statement . There are two models I've commonly seen used: The direct Red Hat model (open source software, commercial support) and the indirect Cognitect model (Datomic is closed source, but its built with and on a wealth of open source which Cognitect maintain). The Red Hat model could probably work for Datomic as its something where customers likely want commercial support for, but its unlikely to work for Cursive.

Basically, it can and does work for many people, but to directly address the question "why?" - I've been involved in startups for a few years and a very common question I was asked by potential customers is "but what if you go out of business? Will we still be able to use the service?"

What Fergal is proposing (or the escrow alternative that Franklin mentioned) aims to solve that and give these customers peace of mind.

This is likely only relevant to early stage startups, however. An established company like Cognitect likely doesn't have this issue and therefore has more flexibility in how they offer their products.

At the end of the day, its up to each individual to decide whats best for them, their software and their business, but having options available is a good thing, if this license can be made work.

[Fergal Byrne]

Great comments, Dan.

Cognitect has the advantage that they already own the Open Source tech used by Datomic, so they can "internally commercially license" that to themselves. You can't do this (sell commercial products) including GPL software you don't own to begin with. This idea is an attempt to solve that problem (as well as the going out of business problem you mention, and others).

The TBOL is indeed aimed at startups, or at small businesses thinking of open sourcing their software or technology. It might also be a way to sustainably build software for the not-for-profit sector.

[Magnus Therning]

On Fri, Jun 05, 2015 at 12:46:54PM +0000, Daniel Kersten wrote:
[..]

> This is likely only relevant to early stage startups, however. An
> established company like Cognitect likely doesn't have this issue and
> therefore has more flexibility in how they offer their products.

They can, however, be bought by Oracle ;)

/M

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[Fergal Byrne]

LOL. That would require they be sold to Oracle, Magnus. That. Seems. Unlikely.

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Fergal Byrne, Brenter IT @fergbyrne

http://inbits.com - Better Living through Thoughtful Technology

http://ie.linkedin.com/in/fergbyrne/ - https://github.com/fergalbyrne

Founder of Clortex: HTM in Clojure - https://github.com/nupic-community/clortex

Co-creator @OccupyStartups Time-Bombed Open License http://occupystartups.me

[Andy Fingerhut]

I don't have any comment on the license, except to say that the escrow approach suggested by Franklin Siler seems like it should address this concern, and I believe has been frequently used by large companies wanting a small don't-know-how-long-they'll-exist company to escrow their source code in case they go out of business.

My main comment is on this phrase: "but they then have to give it all back"

That phrase is commonly used, but wrong.  The code was never taken from anyone, and no one gave it to them in the first place.  They wrote it.  They can give it away, but they can't give it back to anyone.

Andy

[Phillip Lord]

Fergal Byrne <fergalby...@gmail.com> writes:
> That's a great post (and the Mailpile post is also a great discussion of
> the topic), thanks for sharing.
>
> The GPL already has a clause which allows the owner (and downstream user)
> to defer, for 12 months, the full obligations of GPL

It really doesn't.

> see this guy's take:
> https://github.com/zooko/tgppl/blob/master/COPYING.TGPPL-v2-draft.rst

This is GPL with an exemption to it, which is a different thing. This
would only give you the right to distribute code licenced under the
TGPPL. You could not combine this code with GPL code as far as I can
see, and release it under any conditions other than the GPL.

> Our idea is a bit more startup-friendly - on the commercial side of the
> dual license, everyone can keep their improvements/extensions closed for up
> to the full duration of the time-bomb, but they then have to give it all
> back.

I am confused what side of the fence the startup is here. Are they the
people producing the software (in which case, getting funding with only
2 years of enforceable IP seems problematic) or are they they people
extending it? That might work I guess, because they would be able to use
software restrictively for 2 years, that otherwise they could not use at
all.

> As to enforceability, I'm guessing copying the language of GPL is hopefully
> sufficient. These things are rarely tested as far as I know, but I'm sure
> someone knows better than me.

The devil is in the detail. The GPL has been tested on a pretty regular
basis. The interesting thing about this would be working out exactly
what distribution means -- rather critical since it starts the 2 year
clock running in this case.

Phil

[Fergal Byrne]

That phrase ("giving it back") refers to improvements to or extensions of the codebase made by commercial licensees. The GPL has a clause which allows "improvers' and "extenders" to delay reintroducing their extensions by up to 12 months for this very reason. Apart from having some more business-friendly aspects, our idea is every bit as forceful as GPL. In fact, someone familiar with the matter told me Stallman suggested these very ideas to Sun for Java in 2000.

Fergal Byrne, Brenter IT @fergbyrne

http://inbits.com - Better Living through Thoughtful Technology

http://ie.linkedin.com/in/fergbyrne/ - https://github.com/fergalbyrne

Founder of Clortex: HTM in Clojure - https://github.com/nupic-community/clortex

Co-creator @OccupyStartups Time-Bombed Open License http://occupystartups.me

[Colin Fleming]

Lots of companies already are successfully built on open source

I'm not sure there are so many, actually. Or at least, that there are very many models - it's almost exclusively the Red Hat model. SideKiq is another (open source feature limited free edition, closed source paid Enterprise edition) - JetBrains use this model for IntelliJ and PyCharm too. However in the JetBrains case they didn't make their money this way, it's more like the money they made from selling closed source software allows them the luxury of doing that to drive further adoption and increase mindshare. I wouldn't classify Cognitect's model as open source - they maintain open source that they use, sure, like many other companies, but their money comes from consultancy and closed source licences.

I agree that the sustainability of closed source software is an issue for potential users of that software, but Franklin's escrow system seems like a much more viable solution to that problem. And I think that convincing clients to use software that will oblige them to open their own source two years down the track is probably much more difficult that convincing them to use software from a company that might go out of business or be acquired.

I totally agree that it's up to everyone to make their own choices and I absolutely welcome more options and opinions - I'm not arguing that Fergal shouldn't go ahead with it and I hope my initial email didn't sound too critical - it was certainly not my intention. It's more like feedback from someone who's very interested and invested in the topic that the benefit of this proposal isn't immediately obvious.

[martin_clausen]

Just to be clear the GPL (version 2 and 3) does not contain the defer clause you mention.

The link you provide is to a draft additional permission which can be used to amend the GPL.

[Colin Fleming]

Thanks for the kind words Fergal, and as I said in my other mail, I'm very pleased to see more people thinking about this problem. It's a hard one, for sure - I'd love to be able to open source Cursive but I haven't seen any viable way to do so except by selling it to a company who can afford to pay me to work on it.

And I'm always a huge fan of disrupting exploitative industries - I wish you the best of luck with that. I'm dealing with a lot of banks and payment systems at the moment, and I'd dearly love a disruptor ray!

Cheers,

Colin

[Fluid Dynamics]

On Saturday, June 6, 2015 at 5:05:59 AM UTC-4, Colin Fleming wrote:

Thanks for the kind words Fergal, and as I said in my other mail, I'm very pleased to see more people thinking about this problem. It's a hard one, for sure - I'd love to be able to open source Cursive but I haven't seen any viable way to do so except by selling it to a company who can afford to pay me to work on it.

And I'm always a huge fan of disrupting exploitative industries - I wish you the best of luck with that. I'm dealing with a lot of banks and payment systems at the moment, and I'd dearly love a disruptor ray!

Bitcoin?

[Colin Fleming]

Bitcoin?

Unfortunately my local supermarket doesn't accept it yet.

--

[Alan Moore]

Fergal,

*Warning* - Wall of text ahead! If you think OSS works perfectly fine the way it is today feel free to press delete now...

I've been holding back commenting on this thread to see where it would go. It is nice to see everyone's take on the need for (or not) a solution to the lack of an OSS "business model." From what I can tell, there really isn't a business model in OSS at all. Almost by definition, the "market" for OSS is a failed market. What other industry/market exists where the price of goods is $0?

Freedom issues aside, when you give away the fruits of your hard labor you are doing just that, giving it away and that in no way constitutes a sale. The Free Rider problem is alive and well, that is just human nature. I would love to live in a world where this isn't true and I actively work towards a future when we can all just work on whatever scratches our itch, but so far we are not there yet.

Of course, ancillary to the lack of a price/valuation for the code itself, companies still make money by various other means given the environment created by the OSS they give away. I doubt that Clojure or any other OSS project has ever made any significant cash flow just giving away code. Conferences, books, consulting services, freemium, value added Closed Source/Dual License products and all the rest make up the difference (hopefully!) Sometimes just the marketing visibility generated by giving away code is enough to cover the costs of producing it. In that way, OSS can be accounted for as a marketing "give away" from which other revenue and "goodwill" will flow. This is obvious stuff we all know.

To be perfectly honest, I am not a fan of the GPL or any other viral license. I do not believe "code needs to be free". Code is code, an inanimate artifact of human labor. Everyone is free to give theirs away - I think this is admirable and altruistic behavior that we need more of. I'm very grateful that Rich and all the rest of the Clojure developers, contributors, library authors, etc. are giving their time, effort and focus to make this community what it is, awesome! A very big shout out to all of you.

Clearly there is a spectrum of software that runs the gamut from operating systems, languages, databases, tools and other "utility" code, up through more targeted platforms such as SAS, CRM, SalesForce type systems. Another example class of software might target an industry such as Construction Project Management systems or even custom software written in-house or by a consultancy for a specific customer (that could, in theory, be refactored and sold to another customer), software written for a specific piece of hardware (my day job) and finally software written by the NSA, which has no market value whatsoever. As the utility for a wider audience decreases so too does the potential market, which in turn affects how licensing terms are chosen for any given project.

Each of these classes of software seems to have different requirements for licensing terms. Typically, OSS projects tend to fall under the "utility" class and has the widest audience, almost by necessity/definition, and seems to do best with very lenient license terms. All of these classes of software overlap to some degree in their needs for things like developer mind share or the availability of engineers to work on a project, technology or code base.

Layered on top of the pragmatic concerns listed above are the larger moral (e.g. freedom) and societal (IP/patents, OccupyStartups?) factors that influence the choice of licensing terms for a code base. Clearly the GPL and other Open Source licenses are very opinionated in their terms.

In reviewing your license terms, I don't know what class of software your license is intended to target. Your approach may have a fatal flaw in that the time it takes to bootstrap is highly variable and having a fixed deadline might fit some projects/markets but not others.

In my thirty years of working in the Silicon Valley for many different startups we were almost always too early into the market. This left us running out of money and scrambling to find other sources of revenue (pivoting in modern parlance) and inevitably shuttering the business or being bought out for very small fractions of the potential value. We built a Tivo-like system before there was a Tivo, we did ads and coupons on gas pumps, ATMs and grocery checkout terminals long before there was Groupon, we built teleradiology systems before telemedicine became a thing, etc. etc. I once filed a trademark application that described/covered the features provided by GitHub, LinkedIn, Atlassian, Asana, Slack, AngelList and Kickstarter -- predating all of them by ten years or more. If only I had help getting going in those early days... sigh.

Another problem I see is this, why would I work hard to bootstrap a project, to prove it has economic viability only to have someone else come along, fork my code base and compete with me? It seems that the time-bomb terms will filter out certain classes of software from using the license.

At the risk of being redundant, I will once again mention the Co-op Source License. This license has been under development for a number of years now and attempts to solve the Free Rider problem in OSS. As with your license, the basic premise is to strike a balance between OSS licensing terms and traditional closed source licenses.

It does this by having the code owned by all the members of the cooperative (often an LLC for the purpose of fitting into existing legal frameworks.) Members of the cooperative share the code as well as the rights and responsibilities that come along with building a commercially viable project. Projects are organized in a democratic fashion w.r.t. general goals, direction, large decisions, etc. but are run day-to-day like many OSS projects are by a core group of maintainers with the "lead" role being rotated on a release by release basis.

Individual projects are expected to be "federated" into a larger whole (a not-for-profit corporation) so that the result looks a lot like the Valve corporation is organized - a very flat organization with lots of autonomy for individual projects and members with a common support structure that helps with common services for the members/projects. This organization would provide funding mechanisms (via membership fees, direct investment and/or crowdfunding) as well as legal, marketing, sales and other services for the member projects, either directly or contracted to outside firms.

By incorporating the seven cooperative principles into our software license and membership agreements, we enjoy the benefits of being a cooperative: cooperatives are one of the most stable forms of enterprise, often surviving two, four or even ten times longer a typical commercial enterprise.

It is interesting that someone brought up the subject of Credit Unions vs Big Banks. Guess what, Credit Unions are cooperatives! I see this approach providing an alternative to large tech companies like Oracle, Google, Facebook and or VC backed startups. Cooperatives distribute a majority of profits back to the members in accordance with their contributions. Utilizing direct democracy allows each member to have the same power over the direction of the project(s) and the community as a whole.

I suppose our visions are divergent in many respects but I do wholly support your goal of finding a viable commercial alternative to the typical OSS license. The Co-op Source License is not viral but it is inclusive, fair, transparent and pragmatic. And of course, source code is *always* included. :-)

I have been thinking and working on these topics for an embarrassingly long time. Most of that time has been waiting for the limitations of commercializing OSS to become apparent over the OSS hubris of the last decade or so. I think developers are finally realizing that using an alternative licensing scheme is both a valuable, sustainable and worthwhile endeavour.

Again, sorry for the wall of text... some things just take a bit of explaining.

Take care.

Alan

P.S. I too am an old-school C++ dev :-)

[Daniel Kersten]

One thing worth pointing out is that OSS needn't be free as in beer.

I've paid for OSS SaaS products because I don't want to host and admin them myself, for example.

If your service provides something above and beyond what the source provides (and the OSS freedom), then you *may* still have a business. Maybe.

--

[Alan Moore]

Agreed. Code is almost beside the point in my mind. I'm not so much promoting a license as promoting a way of doing business, an alternative to the VC funded startup or too short lived/pivoting businesses that leave customers in the lurch. Fairness, resiliency and other factors of a business are far more important than code. The license is just a way of maintaining agency in the work product, a means to an end, not the goal itself.

I didn't mention many aspects of the effort being undertaken - I cut out whole sections of my email as it was already too long. Yes, we intend to provide many valuable services and artifacts beyond just code. Extensive documentation, support, consulting services, third party integrations and many other things that make software worth buying.

We also intend to target non-utility, non-platform markets/domains where few OSS projects care to go. In this way we do not so much compete with OSS but compliment it instead. If we can organize ourselves to efficiently target many such markets then we stand a chance of being the only or most reliable competitor.

Also, there are advantages to being a cooperative that I won't go into but I will say that we will be re-thinking many basic assumptions in software engineering practices because we feel there are efficiencies to be gained that would otherwise be impossible in more traditional organizations or even with OSS.

Again, my apologies for the verbosity. I could literally write a book on this subject. I do not expect many on this list to like this approach, most of you are not our target developer audience but there may be one or two who see the value proposition and might be curious.

I suggest any further discussion related to my comments be taken off-list. This is after all the Clojure list :-)

See www.coopsource.com for contact details, including a link to our dedicated mailing list. Our Twitter handle is @coopsource.

Take care.

Alan
-- 
"Whatever you can do, or dream you can do, begin it. Boldness has genius, power, and magic in it. Begin it now." - Goethe

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[Tj Gabbour]

For those confused like I was, the correct link is https://coopsource.org

(FWIW, I found your entire "wall of text" very interesting, as it was sensible and contains points almost never mentioned. Could've read a longer version.)

[Alan Moore]

Oops. Autocomplete fail. Thanks for the correct correction.

I look forward to further discussions on the list, see you there.

Alan
-- 
"Whatever you can do, or dream you can do, begin it. Boldness has genius, power, and magic in it. Begin it now." - Goethe

[Warren]

If you are concerned about the free-rider problem, why not dual license under AGPL?

It's seems sufficiently "viral" that most commercial entities will elect to take a commercial license, but it allows the source to be leveraged by other open source projects. 

The only downside is that AGPL does not seem to promote a lot of contribution - but I gather that is not your main concern.

[Laurent PETIT]

Is this discussion still related to clojure in any way ? (If at all)

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Laurent Petit