Commons Clause in open source licences: business necessity or betrayal of software freedom?

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From IPKat:

Accommodation of new business models and technological advances has fundamentally disrupted the open source industry. Unlike on-prem solutions, which are installed in a user environment, cloud-based software remains hosted on the vendor’s servers and is accessed by users through a web browser. Because cloud-based offerings do not involve software distribution, the copyleft  effect of open source licences is not triggered.

Large cloud providers use their market power and infrastructure to generate significant revenues by offering proprietary services around successful open source projects, thus depriving such projects of an opportunity to commercialise similar services.

This has led to various licensing “experiments”, one of which is  imposing additional restrictions  on  the use  of open source software. Licence modifications effectively mean new licences being added to the open source ecosystem, a phenomenon known as licence proliferation.

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Cockroach Labs chose MariaDB’s Business Source License for its CockroachDB and included a restriction to “offer a commercial version of CockroachDB as a service without buying a license” but by also adding the following limitation:

In order to continue building a strong open source core, this restriction has a rolling time limit: three years after each release, the license converts to the standard Apache 2.0 license. Our goal in relicensing with a time restriction is two-pronged: to simultaneously create a competitive database as a service (DBaaS) while also providing a guarantee that the core product will become pure open source.

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Against this backdrop,  this post turns to  the Commons Clause, a licence condition that may be added to an existing open source licence allowing all original permissions contained in such licence, except selling the software. It also prohibits hosting or offering consulting or support services as “a product or service whose value derives, entirely or substantially, from the functionality of the software” (emphasis added). Technically speaking, the resulting licence as a whole is not an open source, but rather a source-available licence.

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As the FAQ document explains, the rationale of the Commons Clause is to incentivise investment in open source projects by preserving the rights of developers to benefit from commercial use of their work and, as well, to protect open source community from “those who take predatory commercial advantage of open source development”, but do not contribute anything back. The Commons Clause allegedly does not restrict code sharing or development. It is less permissive than non-copyleft open source licences, such as Apache, BSD, and MIT, and allows greater commercial freedom than reciprocal licences, such as AGPL or GPL.

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Indeed, Commons Clause is drafted in the spirit of a copyleft licence, thereby aiming to protect source code availability. Prima facie, therefore, it seems a better alternative to proprietary licensing and closed source, but is it really?

There are a few inherent problems in the Commons Clause. First, a concept of a “substantial derivative” is vital in determining the scope of the license, but it is not defined. The FAQ suggests that  it should be interpreted as restricting one from  “[s]elling  a product which adds only an insubstantial value to the software — such as changing the product name, changing some API or function names”. This may be helpful in a handful of use cases, but overall it seems open ended, vague and uncertain.

Another difficulty stems from the licence construct itself. Combining a known and trusted open source license with a proprietary (i.e., non-open source) rider  with unknown implications is set to cause user confusion as to licence compliance obligations as well as conforming with internal third party software usage policies.

The third argument against Commons Clause is eloquently made by the open source community. Commons Clause attached to the open source projects is likely to discourage the community from contributing to such projects because the new products made [Commons Clause is not retroactive] can only be monetised by the licensing entity.

Link to the rest at IPKat

This is of potential issue for authors because they may be using open source software for their work.

As one example, PG has used an open-source email program called Thunderbird for at least a thousand years. Both the Google Chrome and Firefox browsers are open-source.

The gravamen of the OP is that those who manage/control some open-source projects are attempting to restrict the commercial use of their projects while still representing them as open source.

One potential consequence of such an action is that a program utilizing open-source code being used by an author may suddenly be in violation of the claimed limits to the open-source license the program depends upon.

1 thought on “Commons Clause in open source licences: business necessity or betrayal of software freedom?”

  1. I wouldn’t worry that Thunderbird is going to start claiming (part-) ownership of your emails. These clauses are meant to deter big companies from profiting from the work of volunteers or small companies and giving nothing back.

    One type of clause prohibits the user from using the software to offer a product or service that competes with the vendor.

    Another type of clause is meant to stop users from circumventing requirements to provide source code of the software to their users. The GNU GPL, one of the most common “provide the source code” licenses, says that you’re free to modify the source in any way, but if you distribute the modified program, you must also make your modifications to the source available to your users, and must make your modifications available under the GNU GPL. There’s a loophole, which is that if you run the modified program solely on your own computers, and your users access it over a network, you’re not distributing it, and so the requirement to provide source doesn’t apply. With the spread of cheap broadband and the growth of cloud computing, accessing software over a network is becoming more and more common, so without a “commons clause” in the license, it would be easy to comply with the letter of the license, while violating the spirit of it.

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