7 ms·

PolyForm Noncompete Licenses

29 points by joeyespo 6y ago

mcint 6y ago
s/complete/compete/ I appreciate attempts to standardize the law, and make it more accessible and cost-effective to rely on. Hmmm, guess there are issues though
- verdverm 6y ago
  The OSS license body is rejecting these non-compete licenses as open source.
  - ghaff 6y ago
    To be somewhat pedantic, the Open Source Initiative maintains the open source definition and has a license review process which can lead to a license becoming an OSI-approved license. There are a variety of reasons licenses don't get approved but one of them is that it doesn't meet the open source definition. I'm not sure any of these "non-compete" licenses have been rejected by the OSI. I'm pretty sure at least some of them haven't been submitted because they almost certainly would fail to be approved. But to be clear, anyone can claim their license is an "open source license" just not that it's an OSI-approved license if it's not.
    - verdverm 6y ago
      I suppose what I am getting at is that, like with many things, humams tend to gravitate towards adopting definitions around the governing body (experts) certification. We can get into problems, like certified organic, when there are too many bodies creating standards. There was actually an analogous conversation in Cuelang about this, w.r.t. user registered builtins, Cue code which can no longer be used with cue, and the worry of fracturing the ecosystem.
    - verdverm 6y ago
      https://opensource.stackexchange.com/questions/8367/is-the-term-open-source-a-trademark https://opensource.stackexchange.com/questions/8367/is-the-t... This is one of the top results when searching
- kemitchell 6y ago
  Thanks for the typo fix, which someone also e-mailed to me, as well. The virus has me working from the couch, and despite jacking my font sizes up and wearing my driving glasses, I am making far more typos than usual. Publication of standardized legal building blocks is a big passion of mine. I think it's essential, both for the good of law clients and for the mental health of their lawyers, that we do a lot more of it. Besides PolyForm, see also: https://waypointnda.com https://waypointnda.com https://blueoakcouncil.org https://blueoakcouncil.org http://www.commondraft.org/ http://www.commondraft.org/ https://commonform.org https://commonform.org
verdverm 6y ago
The real problem with the licenses is that they are not open source, but many users of them still seem to think they are doing open source. The funny thing is that they are trying to protect themselves from Amazon and other competition before it usually exists, and that in reality, they are doing themselves more harm because the big co lawyers are starting to reject these unusual, project specific license. "If it takes more than a few minutes to understand, then I tell the devs No" To all those would be users of the Faux Pas OSS licenses, why did you make it open source in the first place? If you want to protect your code, why no make it private? Why use one of these licenses?
- ghaff 6y ago
  I had a conversation with a company a few weeks ago about this. What they told me aligned with other things I've heard. Basically they're seeing customers giving preference to open source software and they believe (rightly or wrongly) that using one of these non-compete licenses will give them the marketing advantages of open source without the potential business model downsides. Of course, they also likely don't get the development model advantages of open source but anecdotally these companies don't much care about that. (And TBH a lot of single-company products/projects don't get a lot of outside contribution anyway.)
  - verdverm 6y ago
    It's like having your cake, and eating it too!
  - Wowfunhappy 6y ago
    Could the company use something like AGPL in these instances? (The developing company ofc wouldn't follow the AGPL, but in this case the code is officially open source.)
    - ghaff 6y ago
      It's possible. Although a cloud provider could still potentially run a competing service so long as they made any modifications available to the public. (A cloud provider still might choose not to do so because of uncertainly about how the code interacts with other services in their infrastructure.) But, yes, "Why doesn't the AGPL solve your perceived problem?" is a reasonable question to ask in the context of these non-compete licenses.
fenwick67 6y ago
Let's say I work at Giphy and we publish a library with the Defensive license. Then the library is used by the folks at Twitter. Okay, Twitter isn't competing with us and they send lots of traffic our way, our team is cool with that. Then Giphy is acquired by Facebook. Is Twitter in trouble?
- scj 6y ago
  Alternative, but similar scenario: Let's say a database gets licensed under the defensive license by $CORPORATION_0. And let's say that $CORPORATION_1 makes many contributions to that database under the same defensive license (where they retain copyright). A little weird, but presumably both companies are comfortable with the situation. Let's then say that $MEGA_EVIL_DB_CORP buys out the contributor $CORPORATION_1, and now $MEGA_EVIL_DB_CORP owns the copyright and has competing databases. I'd assume both companies can no longer use the defensive licensed DB. Meaning all Oracle has to do to destroy the competition is buy whichever company is cheaper. That seems like a bad attack vector.
  - wmf 6y ago
    IANAL but it seems like a non-compete license would need copyright assignment so it's clear who you can't compete with. The dual-licensing bait-and-switch business model also requires copyright assignment so it's not that different.
- kemitchell 6y ago
  This is specific enough that I don't think I can say "not legal advice", address as posed, and truly expect that nobody will jump to some conclusion without consulting a lawyer. You'd really want to have a legal conversation about this kind of scenario, with full freedom to talk confidential details, in order to reach the right practical conclusion. What I can say is that the Defensive license comes from folks who deal with M&A, noncompetes, and resulting complexities all the time. 1.0.0 has a number of provisions addressed to potential operational and structural changes that could affect scope: https://polyformproject.org/licenses/defensive-licenses/1.0.0/#new-productcs https://polyformproject.org/licenses/defensive-licenses/1.0.... https://polyformproject.org/licenses/defensive-licenses/1.0.0/#discontinued-products https://polyformproject.org/licenses/defensive-licenses/1.0.... https://polyformproject.org/licenses/defensive-licenses/1.0.0/#sales-of-business https://polyformproject.org/licenses/defensive-licenses/1.0.... My own personal view is that the 1.0.0 terms will be perfectly well recommendable for a great many companies and use cases starting today. But also, emphatically, that any set of terms can be improved, especially in how they interact with external sources of complexity, like the corporate laws. I hope we'll see 1.0.1s and 1.3.0s and 2.0.0s and beyond for all the PolyForm licenses. If anyone is or has the gas to contribute to those conversations, please reach out: https://polyformproject.org/contribute/ https://polyformproject.org/contribute/
verdverm 6y ago
Joseph Jacks has some interesting ideas for Commercial Open Source Software (COSS) https://coss.media https://coss.media Though he recently told me that he thinks all OSS should bootstrap and never take investment, which doesn't exactly align with top COSS co spreadsheet he also maintains.
- josephjacks 6y ago
  Hey, Tony. :) I believe that COSS companies are extremely successful when they are able to build large and successful positive-sum and inclusive ecosystems around their FOSS core (specifically, that core being FOSS licensed, not source-available license'd). My partner Heather Meeker has written most of these non-compete licenses. They are useful at the crust around the core, not in the core, IMHO.. if they are applied to the core, there is very little distinguishing it from freemium/proprietary which != FOSS. Also, many of the most successful COSS companies never raised a cent of VC to get to scale: Jetbrains, Liferay, Odoo, etc. and the ones that did raise a similar amount of money to get to scale did not really need it, they just accepted it along to way maybe to speed growth a bit, but their commercialization strategies were often working quite well and their customer acquisition costs highly efficient.
  - verdverm 6y ago
    Hi JJ. Steph and I have been breaking things down from our chat, and basically came to the same conclusion, though often favoring closed source where one might GPL/NonC license that crust around the core. Also that outside investment is to add fuel to an existing fire, COSS or fully private makes less difference than showing you've built something people want. Do you have any new videos or podcasts? Always love to hear your thoughts, you put things very succinctly!
vharuck 6y ago
Let's say a repo on GutHub has the Perimeter license, and I clone it to a public repo. Would I be unable to include any personal changes on the clone I have? Because it'd be a substitute product that's distributed via GitHub?
cycloptic 6y ago
As an open source developer, I wouldn't contribute to any project that uses these licenses or trust any company that's using them. They're not classified as free software or open source for a reason: it's crucial to be able to fork in the event that the company decides to become hostile. The ability for the other contributors to do this is what keeps them honest. With these licenses, that whole trust aspect gets thrown out.
Communitivity 6y ago
I am not a lawyer, and none of this is legal advice, but these licenses seem SAF (Sketchy As...). More precisely, using software written with these licenses would be something I would never do, either in an Open Source project or a commercial project. Consider for example the 'Patent Defense' section of the Polyform Defensive license. If I am reading this right then if you have a patent and use Polyform Defensive licensed software from Example,inc. to the point that stopping using the software is a major hardship, then Example, inc. can infringe on your patent and be safe because you won't risk losing the right to use their software. Or the 'Sales of Business' section. Let's say Example,inc. is building a blog hosting platform and Open Sources a library for an image carousel under Polyform Defensive. Exemple SA start using it for their Computer Based Training site. Later Example,inc. enters the CBT market. If I am reading this right then Exemple SA now has to either stop using the software, or leave the CBT market - and might not even have a choice about leaving the CBT market. A lot of work has gone into making useful and effective Open Source licenses that benefit both sides when a company open sources their software (software user and the company making the software). A company has a range of protectiveness they can choose: Affero GPL, GPL v3, BSD, MIT, Apache, EPL are some well known ones [1]. Why do we need the PolyForm licenses, especially when they seem to me to be several steps back toward the dark ages of commercial licenses, and being so ambiguous you need a lawyer to evaluate it every case. You also have the question of legality in every region. Aren't noncompetes heavily restricted in California. I also am of the mind that 98% of noncompetes and NDAs are hubris and unnecessary, other than to use as a collar to retain employees. Better to retain through incentivizing than threatening. And also, ideas are a dime a dozen..most people are not going to steal your idea as it's the execution and the funding backing it that will make the difference. Lastly, a key thing to not is that the Polyform Project itself says these are not Open Source licenses[2]: PolyForm is not… Open source or free software. There are plenty of existing open source licenses. PolyForm is not a substitute for them, but an alternative for those who want to license source code under limited rights. There are Open Source licenses out there that legal experts state will protect you, whatever your range of needs if you are willing to abide by the Open Source ideals[3]. Why not embrace the Open Source movement, instead of saying mired in the past? [1] https://en.wikipedia.org/wiki/Comparison_of_free_and_open-source_software_licenses https://en.wikipedia.org/wiki/Comparison_of_free_and_open-so... [2] https://polyformproject.org/what-is-polyform/ https://polyformproject.org/what-is-polyform/ [3] https://opensource.org/licenses/category https://opensource.org/licenses/category
henryfjordan 6y ago
Are these enforceable in California? California does not like non-compete clauses. See cal civ code section 16600: "... every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void"
- bradrydzewski 6y ago
  I believe copyright law in the U.S. is governed by federal statute and copyright infringement matters would be handled by a federal court.
  - henryfjordan 6y ago
    You might be right about that, but federal courts can consider state laws. I'm not sure how that would play out. I also found an unpublished opinion from SCO Group, Inc. v. Novell, Inc., that deals with a similar issue that also makes me think that this software license could work: > The license in the APA and the TLA does not preclude Novell from pursing its business. Rather, the license merely restricts Novell's ability to use SCO's property and is part of an ongoing relationship between the parties. Therefore, the court finds that there is no restraint on trade and the restrictions are not void under Section 16600.

29 points by joeyespo 6y ago

s/complete/compete/ I appreciate attempts to standardize the law, and make it more accessible and cost-effective to rely on. Hmmm, guess there are issues though

verdverm 6y ago
The OSS license body is rejecting these non-compete licenses as open source.
- ghaff 6y ago
  To be somewhat pedantic, the Open Source Initiative maintains the open source definition and has a license review process which can lead to a license becoming an OSI-approved license. There are a variety of reasons licenses don't get approved but one of them is that it doesn't meet the open source definition. I'm not sure any of these "non-compete" licenses have been rejected by the OSI. I'm pretty sure at least some of them haven't been submitted because they almost certainly would fail to be approved. But to be clear, anyone can claim their license is an "open source license" just not that it's an OSI-approved license if it's not.
  - verdverm 6y ago
    I suppose what I am getting at is that, like with many things, humams tend to gravitate towards adopting definitions around the governing body (experts) certification. We can get into problems, like certified organic, when there are too many bodies creating standards. There was actually an analogous conversation in Cuelang about this, w.r.t. user registered builtins, Cue code which can no longer be used with cue, and the worry of fracturing the ecosystem.
  - verdverm 6y ago
    https://opensource.stackexchange.com/questions/8367/is-the-term-open-source-a-trademark https://opensource.stackexchange.com/questions/8367/is-the-t... This is one of the top results when searching
kemitchell 6y ago
Thanks for the typo fix, which someone also e-mailed to me, as well. The virus has me working from the couch, and despite jacking my font sizes up and wearing my driving glasses, I am making far more typos than usual. Publication of standardized legal building blocks is a big passion of mine. I think it's essential, both for the good of law clients and for the mental health of their lawyers, that we do a lot more of it. Besides PolyForm, see also: https://waypointnda.com https://waypointnda.com https://blueoakcouncil.org https://blueoakcouncil.org http://www.commondraft.org/ http://www.commondraft.org/ https://commonform.org https://commonform.org

verdverm 6y ago

The real problem with the licenses is that they are not open source, but many users of them still seem to think they are doing open source. The funny thing is that they are trying to protect themselves from Amazon and other competition before it usually exists, and that in reality, they are doing themselves more harm because the big co lawyers are starting to reject these unusual, project specific license. "If it takes more than a few minutes to understand, then I tell the devs No" To all those would be users of the Faux Pas OSS licenses, why did you make it open source in the first place? If you want to protect your code, why no make it private? Why use one of these licenses?

ghaff 6y ago
I had a conversation with a company a few weeks ago about this. What they told me aligned with other things I've heard. Basically they're seeing customers giving preference to open source software and they believe (rightly or wrongly) that using one of these non-compete licenses will give them the marketing advantages of open source without the potential business model downsides. Of course, they also likely don't get the development model advantages of open source but anecdotally these companies don't much care about that. (And TBH a lot of single-company products/projects don't get a lot of outside contribution anyway.)
- verdverm 6y ago
  It's like having your cake, and eating it too!
- Wowfunhappy 6y ago
  Could the company use something like AGPL in these instances? (The developing company ofc wouldn't follow the AGPL, but in this case the code is officially open source.)
  - ghaff 6y ago
    It's possible. Although a cloud provider could still potentially run a competing service so long as they made any modifications available to the public. (A cloud provider still might choose not to do so because of uncertainly about how the code interacts with other services in their infrastructure.) But, yes, "Why doesn't the AGPL solve your perceived problem?" is a reasonable question to ask in the context of these non-compete licenses.

fenwick67 6y ago

Let's say I work at Giphy and we publish a library with the Defensive license. Then the library is used by the folks at Twitter. Okay, Twitter isn't competing with us and they send lots of traffic our way, our team is cool with that. Then Giphy is acquired by Facebook. Is Twitter in trouble?

scj 6y ago
Alternative, but similar scenario: Let's say a database gets licensed under the defensive license by $CORPORATION_0. And let's say that $CORPORATION_1 makes many contributions to that database under the same defensive license (where they retain copyright). A little weird, but presumably both companies are comfortable with the situation. Let's then say that $MEGA_EVIL_DB_CORP buys out the contributor $CORPORATION_1, and now $MEGA_EVIL_DB_CORP owns the copyright and has competing databases. I'd assume both companies can no longer use the defensive licensed DB. Meaning all Oracle has to do to destroy the competition is buy whichever company is cheaper. That seems like a bad attack vector.
- wmf 6y ago
  IANAL but it seems like a non-compete license would need copyright assignment so it's clear who you can't compete with. The dual-licensing bait-and-switch business model also requires copyright assignment so it's not that different.
kemitchell 6y ago
This is specific enough that I don't think I can say "not legal advice", address as posed, and truly expect that nobody will jump to some conclusion without consulting a lawyer. You'd really want to have a legal conversation about this kind of scenario, with full freedom to talk confidential details, in order to reach the right practical conclusion. What I can say is that the Defensive license comes from folks who deal with M&A, noncompetes, and resulting complexities all the time. 1.0.0 has a number of provisions addressed to potential operational and structural changes that could affect scope: https://polyformproject.org/licenses/defensive-licenses/1.0.0/#new-productcs https://polyformproject.org/licenses/defensive-licenses/1.0.... https://polyformproject.org/licenses/defensive-licenses/1.0.0/#discontinued-products https://polyformproject.org/licenses/defensive-licenses/1.0.... https://polyformproject.org/licenses/defensive-licenses/1.0.0/#sales-of-business https://polyformproject.org/licenses/defensive-licenses/1.0.... My own personal view is that the 1.0.0 terms will be perfectly well recommendable for a great many companies and use cases starting today. But also, emphatically, that any set of terms can be improved, especially in how they interact with external sources of complexity, like the corporate laws. I hope we'll see 1.0.1s and 1.3.0s and 2.0.0s and beyond for all the PolyForm licenses. If anyone is or has the gas to contribute to those conversations, please reach out: https://polyformproject.org/contribute/ https://polyformproject.org/contribute/

verdverm 6y ago

Joseph Jacks has some interesting ideas for Commercial Open Source Software (COSS) https://coss.media https://coss.media Though he recently told me that he thinks all OSS should bootstrap and never take investment, which doesn't exactly align with top COSS co spreadsheet he also maintains.

josephjacks 6y ago
Hey, Tony. :) I believe that COSS companies are extremely successful when they are able to build large and successful positive-sum and inclusive ecosystems around their FOSS core (specifically, that core being FOSS licensed, not source-available license'd). My partner Heather Meeker has written most of these non-compete licenses. They are useful at the crust around the core, not in the core, IMHO.. if they are applied to the core, there is very little distinguishing it from freemium/proprietary which != FOSS. Also, many of the most successful COSS companies never raised a cent of VC to get to scale: Jetbrains, Liferay, Odoo, etc. and the ones that did raise a similar amount of money to get to scale did not really need it, they just accepted it along to way maybe to speed growth a bit, but their commercialization strategies were often working quite well and their customer acquisition costs highly efficient.
- verdverm 6y ago
  Hi JJ. Steph and I have been breaking things down from our chat, and basically came to the same conclusion, though often favoring closed source where one might GPL/NonC license that crust around the core. Also that outside investment is to add fuel to an existing fire, COSS or fully private makes less difference than showing you've built something people want. Do you have any new videos or podcasts? Always love to hear your thoughts, you put things very succinctly!

vharuck 6y ago

Let's say a repo on GutHub has the Perimeter license, and I clone it to a public repo. Would I be unable to include any personal changes on the clone I have? Because it'd be a substitute product that's distributed via GitHub?

cycloptic 6y ago

As an open source developer, I wouldn't contribute to any project that uses these licenses or trust any company that's using them. They're not classified as free software or open source for a reason: it's crucial to be able to fork in the event that the company decides to become hostile. The ability for the other contributors to do this is what keeps them honest. With these licenses, that whole trust aspect gets thrown out.

Communitivity 6y ago

I am not a lawyer, and none of this is legal advice, but these licenses seem SAF (Sketchy As...). More precisely, using software written with these licenses would be something I would never do, either in an Open Source project or a commercial project. Consider for example the 'Patent Defense' section of the Polyform Defensive license. If I am reading this right then if you have a patent and use Polyform Defensive licensed software from Example,inc. to the point that stopping using the software is a major hardship, then Example, inc. can infringe on your patent and be safe because you won't risk losing the right to use their software. Or the 'Sales of Business' section. Let's say Example,inc. is building a blog hosting platform and Open Sources a library for an image carousel under Polyform Defensive. Exemple SA start using it for their Computer Based Training site. Later Example,inc. enters the CBT market. If I am reading this right then Exemple SA now has to either stop using the software, or leave the CBT market - and might not even have a choice about leaving the CBT market. A lot of work has gone into making useful and effective Open Source licenses that benefit both sides when a company open sources their software (software user and the company making the software). A company has a range of protectiveness they can choose: Affero GPL, GPL v3, BSD, MIT, Apache, EPL are some well known ones [1]. Why do we need the PolyForm licenses, especially when they seem to me to be several steps back toward the dark ages of commercial licenses, and being so ambiguous you need a lawyer to evaluate it every case. You also have the question of legality in every region. Aren't noncompetes heavily restricted in California. I also am of the mind that 98% of noncompetes and NDAs are hubris and unnecessary, other than to use as a collar to retain employees. Better to retain through incentivizing than threatening. And also, ideas are a dime a dozen..most people are not going to steal your idea as it's the execution and the funding backing it that will make the difference. Lastly, a key thing to not is that the Polyform Project itself says these are not Open Source licenses[2]: PolyForm is not… Open source or free software. There are plenty of existing open source licenses. PolyForm is not a substitute for them, but an alternative for those who want to license source code under limited rights. There are Open Source licenses out there that legal experts state will protect you, whatever your range of needs if you are willing to abide by the Open Source ideals[3]. Why not embrace the Open Source movement, instead of saying mired in the past? [1] https://en.wikipedia.org/wiki/Comparison_of_free_and_open-source_software_licenses https://en.wikipedia.org/wiki/Comparison_of_free_and_open-so... [2] https://polyformproject.org/what-is-polyform/ https://polyformproject.org/what-is-polyform/ [3] https://opensource.org/licenses/category https://opensource.org/licenses/category

henryfjordan 6y ago

Are these enforceable in California? California does not like non-compete clauses. See cal civ code section 16600: "... every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void"

bradrydzewski 6y ago
I believe copyright law in the U.S. is governed by federal statute and copyright infringement matters would be handled by a federal court.
- henryfjordan 6y ago
  You might be right about that, but federal courts can consider state laws. I'm not sure how that would play out. I also found an unpublished opinion from SCO Group, Inc. v. Novell, Inc., that deals with a similar issue that also makes me think that this software license could work: > The license in the APA and the TLA does not preclude Novell from pursing its business. Rather, the license merely restricts Novell's ability to use SCO's property and is part of an ongoing relationship between the parties. Therefore, the court finds that there is no restraint on trade and the restrictions are not void under Section 16600.