16 ms·

Big Time Public License

143 points by HexDecOctBin 5y ago

themodelplumber 5y ago
That's a really cool idea in a lot of ways, thanks for sharing it. I do wonder if it could be parameterized for customization, kind of like CC-etc-etc licensing, but a bit more detailed. IOW, let's say you cross the barrier from small to big, could the resulting license effects be more gradual in that transitional zone? Just curious.
- kemitchell 5y ago
  Parameterization, modularization, and the like have big hacker appeal. As a coder, I feel that, too. But our lived experience applying them to license terms has been rough. The Fair Source License. Ongoing confusion about what "Creative Commons license" means, and the fact that there is more than one of them. The Cambrian explosion of small tweaks to MIT and BSD terms. In the end, for this license and others, I think the benefit in building recognition of and standardization on a fixed set of terms outweighs the cost of "one-size-fits-all" figures. The most important potential variable, what the paid license will cost if and when you need a paid license, isn't fixed in Big Time.
- HexDecOctBin 5y ago
  Kyle E. Mitchell (the author of this license) was also part of another team of lawyers who created the Polyform Licenses[1] which AFAIK is supposed to be the modular alternative[2]. [1] https://polyformproject.org/ https://polyformproject.org/ [2] https://commercial.polyformproject.org/ https://commercial.polyformproject.org/
  - themodelplumber 5y ago
    That's interesting to see, thanks for the links.
cogburnd02 5y ago
Oh Holy God, not another one! https://en.wikipedia.org/wiki/License_proliferation https://en.wikipedia.org/wiki/License_proliferation
- masukomi 5y ago
  to be clear, this isn't "yet another open source license" I'm pretty sure this doesn't qualify as an "open source" license. This is a commercial license that allows free usage for certain people / companies.
  - cogburnd02 5y ago
    Even more reason to not use it for anything.
  - cpach 5y ago
    Exactly. In the early aughts, Microsoft used to call this concept “shared source” – not open source. https://en.wikipedia.org/wiki/Shared_Source_Initiative https://en.wikipedia.org/wiki/Shared_Source_Initiative
- HexDecOctBin 5y ago
  I shared this one since it was actually drafted by a lawyer, and they explain the various parts of the license and the though-process behind it which I found interesting.
gspr 5y ago
Just another non-free crayon license.
kstrauser 5y ago
I always interpret new licenses through the lens of Debian's Free Software Guidelines.[0] I don't think this would be accepted as it limits usage. Besides that, the definition of a "small business" is terrible. A company is only eligible to use the software if they meet all of these conditions: - had fewer than 100 total individuals working as employees and independent contractors at all times during the last tax year - earned less than 1,000,000 USD (2019) total revenue in the last tax year - received less than 1,000,000 USD (2019) total debt, equity, and other investment in the last five tax years, counting investment in predecessor companies that reorganized into, merged with, or spun out your company 1M USD in revenue is shockingly easy to cross. It also means that businesses in high cost of living areas will be excluded before ones in cheaper areas, even if they're otherwise identical. It's an interesting idea, but I think it's a non-starter. [0] https://people.debian.org/~bap/dfsg-faq.html https://people.debian.org/~bap/dfsg-faq.html
- echelon 5y ago
  I really like this license, but this stuck out to me too. The thresholds are wide apart, and like you say, easy to cross when still "poor". 100 total individuals is huge (you have HR and lawyers), but you can do $1M revenue (imagine it sans profit!) with a team of one or two. This doesn't allow for YoY inflation. $1M today won't be the same tomorrow. The license should expect to issue new versions frequently to keep up with the economic landscape. It'd also be nice if authors could customize their thresholds, but I suppose that gets into the complexity of Creative Commons. (Remember that? Where the heck did that disappear to? - you never hear about it anymore.)
  - ForHackernews 5y ago
    > but you can do $1M revenue (imagine it sans profit!) Perhaps because you are paying for software that eats into your profit margins?
  - JeffRosenberg 5y ago
    > This doesn't allow for YoY inflation. $1M today won't be the same tomorrow. The license should expect to issue new versions frequently to keep up with the economic landscape. That's addressed at the bottom of the definition of a small business: > Adjust these dollar figures for inflation according to the United States Bureau of Labor Statistics’ consumer price index for all urban consumers, United States city average, for all items, not seasonally adjusted, with 1982–1984=100 reference base.
jalonso510 5y ago
seems like the springing requirement to negotiate a paid license after $1m in revenue is just destined to be forgotten. it will come up two rounds later in diligence and be a minor pain to deal with. I'd probably avoid using something licensed under this just to avoid the headache later. or would prefer to pay for a commercial license upfront even.
- kemitchell 5y ago
  Lead drafter of the license here. 510 represent. For what it's worth, I also advise startups. If you find a way to reliably force startup founders in high growth to stop, think, and remember a bunch of legal things they were supposed to do two rounds ago, please e-mail me immediately! The Big Time License certainly hasn't solved that one yet. But we did consider the problem. It's part of the motive behind the extra-long, 128-day grace period that only applies to companies that start small and grow big. That's point 1 in the "Big Business" section.
ralmidani 5y ago
I really like the concept behind this and the Polyform licenses, but wish there could be more modularization to allow, for example, permissiveness for small businesses but removing allowances for large “non-profit” orgs. Also, a company offering a source available license might, as it grows, want to raise the employee and revenue thresholds (when you’re making less than a million, a million-dollar company is more of a threat to your business’s survival than when you’re making 50 million). Edit: one more thing that would be really cool is allowing a “default alternative free software license in case this software is abandoned” clause.
dnissley 5y ago
I'm curious what projects this license would be useful for? It kind of seems like it's just a way to grind a particular political axe?
- tptacek 5y ago
  If "recouping revenue from companies that can easily afford commercial license" is a political axe, sure.
pessimizer 5y ago
I can't imagine that this would hold up in court. You might as well exclude blondes or people with a brother named "Mike." Just make it explicitly proprietary and give out free licenses to the people who meet your criteria. Or equivalently to this, include a promise in the licensing that you won't pursue license violations against people who meet X, Y, and Z criteria. This license isn't about restrictions on usage, it's about restrictions on identity. It's deeply weird. Even stranger, despite the insistence that "fair" is a meaningful term in this license, the definition "A fair price is a fair market price for a fair commercial license." tells on itself. The clarification that it means "more than one customer not affiliated with the licensor has paid that price in the past year" at first glance seems unsatisfiable (under the license), because somebody has to be the first to pay that price, and at that point it wouldn't be "fair." edit: In trying to ape FOSS licensing, it has confused itself. You don't have to ape FOSS.
- tyingq 5y ago
  The author is a lawyer, and appears to have experience in the space. https://work.kemitchell.com/ https://work.kemitchell.com/
  - nbadg 5y ago
    I'm a friend of the author, as well as friends with (former) employees at some of his clients. I can vouch not just that he's a lawyer, but also that he has experience in the space. _A lot_ of experience in the space.
- AlexCoventry 5y ago
  Why would it be legally invalid to exclude blondes or people with a brother named "Mike"? (Obviously it would be immoral and stupid, but that doesn't make such an exclusion legally unenforceable.)
  - Hjfrf 5y ago
    In the case of name/appearance, those things can be strongly correlated with protected categories like race and gender. E.g. Consider a similar legal exclusion to only people called Nguyen or Mohammed or Singh.
rolleiflex 5y ago
I like Mr Mitchell, and I am glad that he is attempting to do something that so many people shy away from for obvious reasons. As a developer of a fairly popular open-source tool (Aether), I have an interest in following the software licensing discussion in detail, though I am not a lawyer. My general impression is, if you excuse my flippance, this license has holes so big I could drive the fully unfurled James Webb telescope through it. I don't mean to be dismissive, so here's an example: > `... indefinitely, if the licensor or their legal successor does not offer a fair commercial license for the software within 32 days of written request' This is the escape hatch condition inserted for the safety of big companies that stop qualifying for the small-business section of the license. Except ... what is fair? More importantly, are you willing to spend six years in court arguing what 'fair' means? Because that is how you end up arguing what is fair in court for six years. To be fair (ha), the license tries to firm up the term somewhat by defining the term later on as: > A fair price is a fair market price for a fair commercial license. If the licensor advertises a price or price structure for generally available fair commercial licenses, and more than one customer not affiliated with the licensor has paid that price in the past year, that is fair. Great, but what happens if the software has not been purchased before? How is 'more than one customer not affiliated with the licensor' going to be resolved? What does 'affiliated' mean and how broad we are talking about here? Unknown, until there is a software product that uses this license, gets very popular, and then we get to see the answers in court, through the poor developer dragged through hell.
- deleted 5y ago
  [deleted]
- AlexCoventry 5y ago
  > what is fair? The article mentions FRAND. The wikipedia page on it[0] goes into more detail, and links to discussions of how to determine a fair price[1]. [0] https://en.wikipedia.org/wiki/Reasonable_and_non-discriminatory_licensing#Definitions https://en.wikipedia.org/wiki/Reasonable_and_non-discriminat... [1] "Formulas for fair, reasonable and non-discriminatory royalty determination" https://mpra.ub.uni-muenchen.de/8569/ https://mpra.ub.uni-muenchen.de/8569/
benatkin 5y ago
With these not-very-open-source licenses I'm glad when they give them names that are easy to filter out. "Shared" and "Business" are good terms to filter on, but it seems "Public License" is one as well. If it says "Public License" I know I'm not going to like it, whether it's an OSI-approved ones like the GPL, EPL, MPL, LGPL, AGPL, or this one which isn't OSI-approved and doesn't meet the OSD.
- josephcsible 5y ago
  Why don't you like the GPL?
- kemitchell 5y ago
  The phrase "public license" generally means that it's a license for everyone, all comers, as distinct from a private license for a specific customer or counterparty. I would describe all the licenses on Blue Oak's permissive license list (https://blueoakcouncil.org/list https://blueoakcouncil.org/list) as "public licenses". Except perhaps for some of the truly defective ones rated "lead'.
jefftk 5y ago
The pairing of 100 people and $1M revenue seems off by a factor of 10, unless the author intends that the latter limit will almost always be hit first? For example, in the US, a company with 100 people would be ~$2M in payroll+taxes alone if it paid federal minimum wage.
- kemitchell 5y ago
  You might find my reply to another comment interesting: https://news.ycombinator.com/item?id=29928153 https://news.ycombinator.com/item?id=29928153
- cestith 5y ago
  It doesn't say 100 full-time equivalent positions for the full year. It says any 100 individuals employed directly or as contractors at any point in the year. Pay someone on Fiverr or Craigslist $50 for a logo? That's a contractor. Have someone on commission-only outside sales for two weeks who didn't bring in any revenue? That's an employee or maybe a contractor.
lupire 5y ago
> I will probably never be happy with this paragraph [describing the purpose] for more than five minutes at a time. So why should anyone use it, if the author doesn't like it?
- andreareina 5y ago
  Because summaries are hard, and it's perfectly reasonable to be happy with the actual terms and still think that the statement of purpose could be better along any of a number of axes (clarity, concision, etc)
computronus 5y ago
One suggestion I have is to update the "How to Request" section, which lays out a procedure for asking for a commercial license. It'd be simpler if the license terms require the licensor to provide contact information for commercial licenses in a defined location. That would help "guarantee[] ... paid licenses for big business are available on fair terms"; there's some consideration in this license for the rights of the big business here. If the licensor can't be bothered to provide contact information, then they aren't upholding their side of the deal, considering the purpose of the license. The licensor could always use a different license, then. ETA: It also makes the process for getting the license cut and dry. It's easy to determine if enough work was done by the big business to contact the licensor: did they use the contact information required to be present or not?
- kemitchell 5y ago
  I appreciate this feedback. Maybe it won't surprise to read we definitely thought about this! Certainly for 2022, we could look around at how software gets made and distributed and try to spell out something more specific. In package metadata. In README. In a COMMERCIAL file. In the repo on lines with a magic string stated in the license. But for better and worse, we've learned to stay humble making assumptions about how those things will continue to happen in software development and distribution. Everything's subject to unexpected change. In the end, we had to be conservative with this, since "breakage" in the contact method could effectively make the software permissive. Once you put software out there with license terms attached, you can't go back five years later and hunt down all the copies people have made, on the Internet and privately.
dmitrygr 5y ago
"If you need a big-company license, reach out for a big-company license, and either don’t get a response, or get a clearly unfair, unreasonable, or discriminatory proposal, this is your fallback." So, what defines "unreasonable"? Maybe to Amazon, you wanting $1 is unreasonable
stickfigure 5y ago
This is an interesting concept, but I'm not sure I would use software like this in my small business unless the software owner made some sort of price commitment up front. Otherwise, several years down the road, I'm hit with the bill - and the owner could charge me anything they want. I'm already dependent on the software.
- kemitchell 5y ago
  Have a look at the "Big Business" section: > You may use the software for the benefit of your [big] company: > 1. for 128 days after your company stops qualifying under Small Business This functions as a grace period, both for realizing that you've grown out of the "Small Business" category and to reach out and do a deal. > 2. indefinitely, if the licensor or their legal successor does not offer a fair commercial license for the software within 32 days of written request The definitions of "fair commercial license" and "fair price" add accountability from there. In particular, "fair price" is defined so if the vendor advertises a rack rate, and customers have actually paid it in the past year, a "fair price" means rack rate. All of this is meant to allay the fear you mentioned: I'm small now, but if I get big, they'll gouge me. The license commits the vendor to deal fairly when that time comes.
  - onphonenow 5y ago
    We see this type of deal in real estate financing. These terms often drive the "rack rate" way up even if that is a net negative for licensor. They just need a few suckers to pay that rack rate, and that locks in something very high. Commonly the trick is to do something like $200/month per employee. For a small business they'll pay it, they have 2 employees who use the software a ton. For the 2,000 employee business that makes no sense, because only 5 folks use it, but licensing is based on total employees (all you can eat model). That turns it into a $40M licensing deal. Can't there just be an upper bound that any reasonable supporting software can't exceed? Ie, can never be licensed for more than $500K per year or whatever?
    - kemitchell 5y ago
jarrell_mark 5y ago
This license has things in common with the Unreal Engine license. It's a source available license that is free up until a certain revenue (or equity / headcount) amount
- kemitchell 5y ago
  We see a lot more licensing practices between the extremes of permissive-open and completely locked down in video games. There is a lot more professional cross-pollination there with music, film, TV, books, and other "copyright industries" with much longer histories.
onphonenow 5y ago
A suggestion for all these trap type licenses. The rule for all these things should instead be - the pricing terms MUST be disclosed UP FRONT and PUBLICALLY - then you can pay those if you exceed a threshold. If they are not available, you will NEVER have to pay as long as you started using software and they had hidden the pricing. That would solve 90% of these scam issues (no gotchas).
jonathankoren 5y ago
Everyone is jumping on the definition of a “small business”, but the thing that stood out to me was the clause “[license for commercial use is good] indefinitely, if the licensor or their legal successor does not offer a fair commercial license for the software within 32 days of written request” “Fair commercial license”? Well fair is in the eye of the beholder isn’t it? Seems like the author would need a lawyer filing a C&D 33 days after negotiations started, as the initial license cost is going to immediately be dismissed as “unfair” just as a negotiating tactic.
- kemitchell 5y ago
  The phrase "fair commercial license" is fleshed out more in a definition toward the end of the license text.
- user-the-name 5y ago
  No, fair is in the eye of the court that is resolving the case when there is a conflict. And these terms have meanings in a legal context.
  - kemitchell 5y ago
    I'm not aware that any of the words used in Big Time are legal terms of art with particularly specific, legal meanings. There is a developing body of case law around FRAND---fair, reasonable, and nondiscriminatory---which directly inspired Big Time. But it's not as though there is a separate dictionary of legal meanings for common words that courts use. Rather, they have rules for how to read to find the meaning two sides likely meant in context. Some of those rules involve looking at general dictionary definitions.
tzs 5y ago
Let's say there was a text editor available under this license, and I as an individual obtained a copy for my personal use on my hobby projects. That's free. I work from home, using my personal computer for work. (I do that because (1) I have a better computer than what my employer would issue, and (2) the best place to have a computer in my house doesn't really have room for another computer). If I would like to edit some work files, it appears I need to buy a commercial license. That seems kind of weird to me, because the license allows small businesses to use it commercially using the free license. I can't think of any good reason that it should be OK for a business making up to $1 million/year in revenue and having up to 99 employees to use it for free, but I (who is one person and makes way less than $1 million/year) need a commercial license to occasionally use the editor commercially. If a license is going to be free for small businesses but not free for large businesses, I'd make it so individuals can use it under the small business terms if they wish.
aspenmayer 5y ago
I wonder if worker-owned cooperatives would be compatible with this, as the charter could be written so as to define no one as a worker, but rather as sharing ownership and receiving shares, rather than monetary payment.
DethNinja 5y ago
Idea is good but it should be made customisable: Licensor should be able to list pricing for the large companies upfront. Fair pricing is a troublesome term. Licensor should be able to remove clause about government organization and classify them as big business as well. 32 days for compliance is troublesome. It would be better if this was converted to an arbitration clause that is favourable for licensor. Big companies will abuse that clause real easily. If you would like to add some customisation, please check this first: https://docontract.com/ https://docontract.com/
- cestith 5y ago
  Surely if you do advertise a price that goes to what the fair price is. If I advertise it's $5000 and decide I don't like your business so I'm going to charge you $50,000 that's not fair or nondiscriminatory.
deleted 5y ago
[deleted]
thayne 5y ago
So... it's a shareware license that doesn't require you to be a lawyer to understand. I see some people saying it's a source available license, but there isn't anything in the license that requires the source to be available. It also doesn't grant any permissions to modify or redistribute.
- kemitchell 5y ago
  I'm glad you found it understandable! That is a major goal. As for shareware, there are several use cases where the license makes usage free. Noncommerical use. Small business use. I think you'll be hard pressed to find any free or open license that provides any guarantee of source availability. It's just expected that the license will be applied to source code. We do see binary releases with MIT, BSD, or Apache slapped on them, here and there. As for modification and distribution, see the Copyright License section: > The licensor grants you a copyright license to do everything with the software that would otherwise infringe the licensor's copyright in it for any purpose allowed by these terms.
dhosek 5y ago
After decades of writing software, I've come to the conclusion there are pretty much only two useful licenses: 1. Do whatever you want with this code. It'd be nice to get credit but oh well. 2. I'm keeping this restricted. You pay $X for Y rights to use the software, I'll charge you more to look at the source code and limit your ability to do anything with it. Stuff like GPL isn't going to keep bad actors from abusing your software and it can only limit the willingness of others to use it if they actually care about the terms of the license.
- lmm 5y ago
  I've got a source code copy of Kusari that says the GPL does work. We live in a society, most people aren't bad actors to the extent that they'll outright break the law.
- junon 5y ago
  GPL has been enforced in court though. So I don't really agree. Licenses are legal contracts, and brach of contract should be taken to court. The problem is that... they aren't, really at all. That's the actual problem that needs fixing.
kazinator 5y ago
> Your thoughts welcome! BSD || MIT || FOAD
ece 5y ago
I'd like to see a AGPL+linking exception (LGPL) license personally. Though I think license proliferation is generally good and people are free to choose the license they want for their particular works.
- hgs3 5y ago
  I was looking for a license like this recently. The closet I found was the MPL, but it's a file-based license unfortunately.
  - ece 5y ago
    I've thought about just copy pasting the linking exception here and modifying the relevant bits to suit the AGPL project: https://en.wikipedia.org/wiki/GPL_linking_exception#The_Classpath_exception https://en.wikipedia.org/wiki/GPL_linking_exception#The_Clas... As the wiki says, the LGPL offers even more, but the linking exception alone might be enough for some/most projects. IANAL.
torstenvl 5y ago
The general consensus is that AS IS isn't enough to protect you against implied warranties, because - despite the language of the UCC - some courts are freaking idiots. https://casetext.com/case/gaylord-v-lawler-mobile-homes-inc https://casetext.com/case/gaylord-v-lawler-mobile-homes-inc Why did you choose not to disclaim the big four implied warranties that nearly all open source licenses disclaim? Even BSD (the worst drafted license ever) explicitly disclaims two of the four (MIT and some forms of ISC get all three that realistically would apply to non-tangible property, and Apache 2.0 disclaims all four just to be safe). So it's a bit of a head-scratcher why you'd draft a license that incurs that legal risk.
- kemitchell 5y ago
  I don't agree that view is conscious consensus. It's the track of the herd, perpetuated by copy-and-paste. Copy-paste disclaimers have grown, drip by drip, like monster stalagmites in a damp cave. Successive, nervous lawyers deposit ever more warranties by name, some more or less made up by creative opposing counsel. Having attempted to list all conceivable warranties specifically, the language opens itself up to holdings that the drafters omitted the particular warranty the judge really wants to enforce, writing off any remnant general language of disclaimer. Big Time (and Blue Oak, and the PolyForm licenses) don't stop with the magic words "AS IS". In full, conspicuous formatting omitted: > As far as the law allows, the software comes as is, without any warranty or condition, and the licensor will not be liable to you for any damages arising out of these terms or the use or nature of the software, under any kind of legal claim. We can't stop courts from rendering bad decisions when they really, really want a result. But reading through Gaylord, the case you cited---admittedly, for the first time---I don't think the conclusory statement that "as is" can't apply to new goods ends our UCC 2-316(3)(a) conversation. We also have "other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty". Can a court really hold that Big Time software comes "with warranty", and expect to survive appeal? There was also a tort claim in Gaylord, which did stay dead on summary judgment. I think the Big Time license gets there, too, without having to specifically mention "tort". Again, by sticking to good general language, and not undermining it with a potentially incomplete list of specifics: "any kind of legal claim". At a higher level, there's a similar approach at work in Big Time's copyright and patent grants. Why list out all the exclusive rights of rights holders? Why risk omitting one, or putting it slightly different than in the relevant statute?
ThenAsNow 5y ago
I'm struggling to understand the vitriol toward this. It is a thoughtfully-crafted license, eminently readable, written by a skilled legal practitioner in this domain. I have no affiliation with the author of the license, but do appreciate his writings and contributions to the community. Whether it's OpenSSL, the recent PLC4X story, or Filippo Valsorda's recent posting, we are constantly reminded of how unsustainable it can be for the majority of FOSS developers. It's clear that relying on purely voluntary contributions to these developers does not work. Some model needs to be found that makes compensating more developers compulsory if we want to enable them to write/maintain their code as anything other than a hobby. This needs to be through a legal mechanism rather than social/moral pressure, because businesses understand legal requirements and most fulfill their legal obligations. I understand the pushback against calling this a Free/Open Source license, but the author never categorizes it as such. There is a strong good-faith foundation in this license of keeping it zero cost for those least able to pay, or most deterred by cost. It preserves the benefits of everybody being able to see the code they're running, make their own fixes/changes, etc. I get drawing some line around core OS components, etc., as needing to be GPL/BSD/MIT, but what alternative models to this kind of license are people proposing to deal with the sustainability gap? Nothing forces you as an author to use this type of license, nor are you forced to use products based on this license. I don't see a widespread way to address the sustainability gap while also religiously expecting all this code to be "no economic strings attached". If we all agree not to call it FOSS, does that tamp down the loud objections?
- orangecat 5y ago
  I'm struggling to understand the vitriol toward this. It is a thoughtfully-crafted license, eminently readable, written by a skilled legal practitioner in this domain. That's all well and good. It's still a proprietary license that rejects the most basic principle of open source, which is the ability of anyone to use and modify the software. And there's nothing wrong with that, but it's silly to expect FOSS advocates to embrace it.
  - HexDecOctBin 5y ago
    But why the assumption that it is aimed at FOSS advocates? The license doesn't even mention source code, it has nothing to do with FOSS. Does FOSS has a monopoly on releasing software free of cost? Should no new interesting shareware-esque licenses be shared on a website dedicated to startups, lest the FOSS advocates be offended?

143 points by HexDecOctBin 5y ago

That's a really cool idea in a lot of ways, thanks for sharing it. I do wonder if it could be parameterized for customization, kind of like CC-etc-etc licensing, but a bit more detailed. IOW, let's say you cross the barrier from small to big, could the resulting license effects be more gradual in that transitional zone? Just curious.

kemitchell 5y ago
Parameterization, modularization, and the like have big hacker appeal. As a coder, I feel that, too. But our lived experience applying them to license terms has been rough. The Fair Source License. Ongoing confusion about what "Creative Commons license" means, and the fact that there is more than one of them. The Cambrian explosion of small tweaks to MIT and BSD terms. In the end, for this license and others, I think the benefit in building recognition of and standardization on a fixed set of terms outweighs the cost of "one-size-fits-all" figures. The most important potential variable, what the paid license will cost if and when you need a paid license, isn't fixed in Big Time.
HexDecOctBin 5y ago
Kyle E. Mitchell (the author of this license) was also part of another team of lawyers who created the Polyform Licenses[1] which AFAIK is supposed to be the modular alternative[2]. [1] https://polyformproject.org/ https://polyformproject.org/ [2] https://commercial.polyformproject.org/ https://commercial.polyformproject.org/
- themodelplumber 5y ago
  That's interesting to see, thanks for the links.

cogburnd02 5y ago

Oh Holy God, not another one! https://en.wikipedia.org/wiki/License_proliferation https://en.wikipedia.org/wiki/License_proliferation

masukomi 5y ago
to be clear, this isn't "yet another open source license" I'm pretty sure this doesn't qualify as an "open source" license. This is a commercial license that allows free usage for certain people / companies.
- cogburnd02 5y ago
  Even more reason to not use it for anything.
- cpach 5y ago
  Exactly. In the early aughts, Microsoft used to call this concept “shared source” – not open source. https://en.wikipedia.org/wiki/Shared_Source_Initiative https://en.wikipedia.org/wiki/Shared_Source_Initiative
HexDecOctBin 5y ago
I shared this one since it was actually drafted by a lawyer, and they explain the various parts of the license and the though-process behind it which I found interesting.

gspr 5y ago

Just another non-free crayon license.

kstrauser 5y ago

I always interpret new licenses through the lens of Debian's Free Software Guidelines.[0] I don't think this would be accepted as it limits usage. Besides that, the definition of a "small business" is terrible. A company is only eligible to use the software if they meet all of these conditions: - had fewer than 100 total individuals working as employees and independent contractors at all times during the last tax year - earned less than 1,000,000 USD (2019) total revenue in the last tax year - received less than 1,000,000 USD (2019) total debt, equity, and other investment in the last five tax years, counting investment in predecessor companies that reorganized into, merged with, or spun out your company 1M USD in revenue is shockingly easy to cross. It also means that businesses in high cost of living areas will be excluded before ones in cheaper areas, even if they're otherwise identical. It's an interesting idea, but I think it's a non-starter. [0] https://people.debian.org/~bap/dfsg-faq.html https://people.debian.org/~bap/dfsg-faq.html

echelon 5y ago
I really like this license, but this stuck out to me too. The thresholds are wide apart, and like you say, easy to cross when still "poor". 100 total individuals is huge (you have HR and lawyers), but you can do $1M revenue (imagine it sans profit!) with a team of one or two. This doesn't allow for YoY inflation. $1M today won't be the same tomorrow. The license should expect to issue new versions frequently to keep up with the economic landscape. It'd also be nice if authors could customize their thresholds, but I suppose that gets into the complexity of Creative Commons. (Remember that? Where the heck did that disappear to? - you never hear about it anymore.)
- ForHackernews 5y ago
  > but you can do $1M revenue (imagine it sans profit!) Perhaps because you are paying for software that eats into your profit margins?
- JeffRosenberg 5y ago
  > This doesn't allow for YoY inflation. $1M today won't be the same tomorrow. The license should expect to issue new versions frequently to keep up with the economic landscape. That's addressed at the bottom of the definition of a small business: > Adjust these dollar figures for inflation according to the United States Bureau of Labor Statistics’ consumer price index for all urban consumers, United States city average, for all items, not seasonally adjusted, with 1982–1984=100 reference base.

jalonso510 5y ago

seems like the springing requirement to negotiate a paid license after $1m in revenue is just destined to be forgotten. it will come up two rounds later in diligence and be a minor pain to deal with. I'd probably avoid using something licensed under this just to avoid the headache later. or would prefer to pay for a commercial license upfront even.

kemitchell 5y ago
Lead drafter of the license here. 510 represent. For what it's worth, I also advise startups. If you find a way to reliably force startup founders in high growth to stop, think, and remember a bunch of legal things they were supposed to do two rounds ago, please e-mail me immediately! The Big Time License certainly hasn't solved that one yet. But we did consider the problem. It's part of the motive behind the extra-long, 128-day grace period that only applies to companies that start small and grow big. That's point 1 in the "Big Business" section.

ralmidani 5y ago

I really like the concept behind this and the Polyform licenses, but wish there could be more modularization to allow, for example, permissiveness for small businesses but removing allowances for large “non-profit” orgs. Also, a company offering a source available license might, as it grows, want to raise the employee and revenue thresholds (when you’re making less than a million, a million-dollar company is more of a threat to your business’s survival than when you’re making 50 million). Edit: one more thing that would be really cool is allowing a “default alternative free software license in case this software is abandoned” clause.

dnissley 5y ago

I'm curious what projects this license would be useful for? It kind of seems like it's just a way to grind a particular political axe?

tptacek 5y ago
If "recouping revenue from companies that can easily afford commercial license" is a political axe, sure.

pessimizer 5y ago

I can't imagine that this would hold up in court. You might as well exclude blondes or people with a brother named "Mike." Just make it explicitly proprietary and give out free licenses to the people who meet your criteria. Or equivalently to this, include a promise in the licensing that you won't pursue license violations against people who meet X, Y, and Z criteria. This license isn't about restrictions on usage, it's about restrictions on identity. It's deeply weird. Even stranger, despite the insistence that "fair" is a meaningful term in this license, the definition "A fair price is a fair market price for a fair commercial license." tells on itself. The clarification that it means "more than one customer not affiliated with the licensor has paid that price in the past year" at first glance seems unsatisfiable (under the license), because somebody has to be the first to pay that price, and at that point it wouldn't be "fair." edit: In trying to ape FOSS licensing, it has confused itself. You don't have to ape FOSS.

tyingq 5y ago
The author is a lawyer, and appears to have experience in the space. https://work.kemitchell.com/ https://work.kemitchell.com/
- nbadg 5y ago
  I'm a friend of the author, as well as friends with (former) employees at some of his clients. I can vouch not just that he's a lawyer, but also that he has experience in the space. _A lot_ of experience in the space.
AlexCoventry 5y ago
Why would it be legally invalid to exclude blondes or people with a brother named "Mike"? (Obviously it would be immoral and stupid, but that doesn't make such an exclusion legally unenforceable.)
- Hjfrf 5y ago
  In the case of name/appearance, those things can be strongly correlated with protected categories like race and gender. E.g. Consider a similar legal exclusion to only people called Nguyen or Mohammed or Singh.

rolleiflex 5y ago

I like Mr Mitchell, and I am glad that he is attempting to do something that so many people shy away from for obvious reasons. As a developer of a fairly popular open-source tool (Aether), I have an interest in following the software licensing discussion in detail, though I am not a lawyer. My general impression is, if you excuse my flippance, this license has holes so big I could drive the fully unfurled James Webb telescope through it. I don't mean to be dismissive, so here's an example: > `... indefinitely, if the licensor or their legal successor does not offer a fair commercial license for the software within 32 days of written request' This is the escape hatch condition inserted for the safety of big companies that stop qualifying for the small-business section of the license. Except ... what is fair? More importantly, are you willing to spend six years in court arguing what 'fair' means? Because that is how you end up arguing what is fair in court for six years. To be fair (ha), the license tries to firm up the term somewhat by defining the term later on as: > A fair price is a fair market price for a fair commercial license. If the licensor advertises a price or price structure for generally available fair commercial licenses, and more than one customer not affiliated with the licensor has paid that price in the past year, that is fair. Great, but what happens if the software has not been purchased before? How is 'more than one customer not affiliated with the licensor' going to be resolved? What does 'affiliated' mean and how broad we are talking about here? Unknown, until there is a software product that uses this license, gets very popular, and then we get to see the answers in court, through the poor developer dragged through hell.

deleted 5y ago
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AlexCoventry 5y ago
> what is fair? The article mentions FRAND. The wikipedia page on it[0] goes into more detail, and links to discussions of how to determine a fair price[1]. [0] https://en.wikipedia.org/wiki/Reasonable_and_non-discriminatory_licensing#Definitions https://en.wikipedia.org/wiki/Reasonable_and_non-discriminat... [1] "Formulas for fair, reasonable and non-discriminatory royalty determination" https://mpra.ub.uni-muenchen.de/8569/ https://mpra.ub.uni-muenchen.de/8569/

benatkin 5y ago

With these not-very-open-source licenses I'm glad when they give them names that are easy to filter out. "Shared" and "Business" are good terms to filter on, but it seems "Public License" is one as well. If it says "Public License" I know I'm not going to like it, whether it's an OSI-approved ones like the GPL, EPL, MPL, LGPL, AGPL, or this one which isn't OSI-approved and doesn't meet the OSD.

josephcsible 5y ago
Why don't you like the GPL?
kemitchell 5y ago
The phrase "public license" generally means that it's a license for everyone, all comers, as distinct from a private license for a specific customer or counterparty. I would describe all the licenses on Blue Oak's permissive license list (https://blueoakcouncil.org/list https://blueoakcouncil.org/list) as "public licenses". Except perhaps for some of the truly defective ones rated "lead'.

jefftk 5y ago

The pairing of 100 people and $1M revenue seems off by a factor of 10, unless the author intends that the latter limit will almost always be hit first? For example, in the US, a company with 100 people would be ~$2M in payroll+taxes alone if it paid federal minimum wage.

kemitchell 5y ago
You might find my reply to another comment interesting: https://news.ycombinator.com/item?id=29928153 https://news.ycombinator.com/item?id=29928153
cestith 5y ago
It doesn't say 100 full-time equivalent positions for the full year. It says any 100 individuals employed directly or as contractors at any point in the year. Pay someone on Fiverr or Craigslist $50 for a logo? That's a contractor. Have someone on commission-only outside sales for two weeks who didn't bring in any revenue? That's an employee or maybe a contractor.

lupire 5y ago

> I will probably never be happy with this paragraph [describing the purpose] for more than five minutes at a time. So why should anyone use it, if the author doesn't like it?

andreareina 5y ago
Because summaries are hard, and it's perfectly reasonable to be happy with the actual terms and still think that the statement of purpose could be better along any of a number of axes (clarity, concision, etc)

computronus 5y ago

One suggestion I have is to update the "How to Request" section, which lays out a procedure for asking for a commercial license. It'd be simpler if the license terms require the licensor to provide contact information for commercial licenses in a defined location. That would help "guarantee[] ... paid licenses for big business are available on fair terms"; there's some consideration in this license for the rights of the big business here. If the licensor can't be bothered to provide contact information, then they aren't upholding their side of the deal, considering the purpose of the license. The licensor could always use a different license, then. ETA: It also makes the process for getting the license cut and dry. It's easy to determine if enough work was done by the big business to contact the licensor: did they use the contact information required to be present or not?

kemitchell 5y ago
I appreciate this feedback. Maybe it won't surprise to read we definitely thought about this! Certainly for 2022, we could look around at how software gets made and distributed and try to spell out something more specific. In package metadata. In README. In a COMMERCIAL file. In the repo on lines with a magic string stated in the license. But for better and worse, we've learned to stay humble making assumptions about how those things will continue to happen in software development and distribution. Everything's subject to unexpected change. In the end, we had to be conservative with this, since "breakage" in the contact method could effectively make the software permissive. Once you put software out there with license terms attached, you can't go back five years later and hunt down all the copies people have made, on the Internet and privately.

dmitrygr 5y ago

"If you need a big-company license, reach out for a big-company license, and either don’t get a response, or get a clearly unfair, unreasonable, or discriminatory proposal, this is your fallback." So, what defines "unreasonable"? Maybe to Amazon, you wanting $1 is unreasonable

stickfigure 5y ago

This is an interesting concept, but I'm not sure I would use software like this in my small business unless the software owner made some sort of price commitment up front. Otherwise, several years down the road, I'm hit with the bill - and the owner could charge me anything they want. I'm already dependent on the software.

kemitchell 5y ago
Have a look at the "Big Business" section: > You may use the software for the benefit of your [big] company: > 1. for 128 days after your company stops qualifying under Small Business This functions as a grace period, both for realizing that you've grown out of the "Small Business" category and to reach out and do a deal. > 2. indefinitely, if the licensor or their legal successor does not offer a fair commercial license for the software within 32 days of written request The definitions of "fair commercial license" and "fair price" add accountability from there. In particular, "fair price" is defined so if the vendor advertises a rack rate, and customers have actually paid it in the past year, a "fair price" means rack rate. All of this is meant to allay the fear you mentioned: I'm small now, but if I get big, they'll gouge me. The license commits the vendor to deal fairly when that time comes.
- onphonenow 5y ago
  We see this type of deal in real estate financing. These terms often drive the "rack rate" way up even if that is a net negative for licensor. They just need a few suckers to pay that rack rate, and that locks in something very high. Commonly the trick is to do something like $200/month per employee. For a small business they'll pay it, they have 2 employees who use the software a ton. For the 2,000 employee business that makes no sense, because only 5 folks use it, but licensing is based on total employees (all you can eat model). That turns it into a $40M licensing deal. Can't there just be an upper bound that any reasonable supporting software can't exceed? Ie, can never be licensed for more than $500K per year or whatever?
  - kemitchell 5y ago

jarrell_mark 5y ago

This license has things in common with the Unreal Engine license. It's a source available license that is free up until a certain revenue (or equity / headcount) amount

kemitchell 5y ago
We see a lot more licensing practices between the extremes of permissive-open and completely locked down in video games. There is a lot more professional cross-pollination there with music, film, TV, books, and other "copyright industries" with much longer histories.

onphonenow 5y ago

A suggestion for all these trap type licenses. The rule for all these things should instead be - the pricing terms MUST be disclosed UP FRONT and PUBLICALLY - then you can pay those if you exceed a threshold. If they are not available, you will NEVER have to pay as long as you started using software and they had hidden the pricing. That would solve 90% of these scam issues (no gotchas).

jonathankoren 5y ago

Everyone is jumping on the definition of a “small business”, but the thing that stood out to me was the clause “[license for commercial use is good] indefinitely, if the licensor or their legal successor does not offer a fair commercial license for the software within 32 days of written request” “Fair commercial license”? Well fair is in the eye of the beholder isn’t it? Seems like the author would need a lawyer filing a C&D 33 days after negotiations started, as the initial license cost is going to immediately be dismissed as “unfair” just as a negotiating tactic.

kemitchell 5y ago
The phrase "fair commercial license" is fleshed out more in a definition toward the end of the license text.
user-the-name 5y ago
No, fair is in the eye of the court that is resolving the case when there is a conflict. And these terms have meanings in a legal context.
- kemitchell 5y ago
  I'm not aware that any of the words used in Big Time are legal terms of art with particularly specific, legal meanings. There is a developing body of case law around FRAND---fair, reasonable, and nondiscriminatory---which directly inspired Big Time. But it's not as though there is a separate dictionary of legal meanings for common words that courts use. Rather, they have rules for how to read to find the meaning two sides likely meant in context. Some of those rules involve looking at general dictionary definitions.

tzs 5y ago

Let's say there was a text editor available under this license, and I as an individual obtained a copy for my personal use on my hobby projects. That's free. I work from home, using my personal computer for work. (I do that because (1) I have a better computer than what my employer would issue, and (2) the best place to have a computer in my house doesn't really have room for another computer). If I would like to edit some work files, it appears I need to buy a commercial license. That seems kind of weird to me, because the license allows small businesses to use it commercially using the free license. I can't think of any good reason that it should be OK for a business making up to $1 million/year in revenue and having up to 99 employees to use it for free, but I (who is one person and makes way less than $1 million/year) need a commercial license to occasionally use the editor commercially. If a license is going to be free for small businesses but not free for large businesses, I'd make it so individuals can use it under the small business terms if they wish.

aspenmayer 5y ago

I wonder if worker-owned cooperatives would be compatible with this, as the charter could be written so as to define no one as a worker, but rather as sharing ownership and receiving shares, rather than monetary payment.

DethNinja 5y ago

Idea is good but it should be made customisable: Licensor should be able to list pricing for the large companies upfront. Fair pricing is a troublesome term. Licensor should be able to remove clause about government organization and classify them as big business as well. 32 days for compliance is troublesome. It would be better if this was converted to an arbitration clause that is favourable for licensor. Big companies will abuse that clause real easily. If you would like to add some customisation, please check this first: https://docontract.com/ https://docontract.com/

cestith 5y ago
Surely if you do advertise a price that goes to what the fair price is. If I advertise it's $5000 and decide I don't like your business so I'm going to charge you $50,000 that's not fair or nondiscriminatory.

deleted 5y ago

[deleted]

thayne 5y ago

So... it's a shareware license that doesn't require you to be a lawyer to understand. I see some people saying it's a source available license, but there isn't anything in the license that requires the source to be available. It also doesn't grant any permissions to modify or redistribute.

kemitchell 5y ago
I'm glad you found it understandable! That is a major goal. As for shareware, there are several use cases where the license makes usage free. Noncommerical use. Small business use. I think you'll be hard pressed to find any free or open license that provides any guarantee of source availability. It's just expected that the license will be applied to source code. We do see binary releases with MIT, BSD, or Apache slapped on them, here and there. As for modification and distribution, see the Copyright License section: > The licensor grants you a copyright license to do everything with the software that would otherwise infringe the licensor's copyright in it for any purpose allowed by these terms.

dhosek 5y ago

After decades of writing software, I've come to the conclusion there are pretty much only two useful licenses: 1. Do whatever you want with this code. It'd be nice to get credit but oh well. 2. I'm keeping this restricted. You pay $X for Y rights to use the software, I'll charge you more to look at the source code and limit your ability to do anything with it. Stuff like GPL isn't going to keep bad actors from abusing your software and it can only limit the willingness of others to use it if they actually care about the terms of the license.

lmm 5y ago
I've got a source code copy of Kusari that says the GPL does work. We live in a society, most people aren't bad actors to the extent that they'll outright break the law.
junon 5y ago
GPL has been enforced in court though. So I don't really agree. Licenses are legal contracts, and brach of contract should be taken to court. The problem is that... they aren't, really at all. That's the actual problem that needs fixing.

kazinator 5y ago

> Your thoughts welcome! BSD || MIT || FOAD

ece 5y ago

I'd like to see a AGPL+linking exception (LGPL) license personally. Though I think license proliferation is generally good and people are free to choose the license they want for their particular works.

hgs3 5y ago
I was looking for a license like this recently. The closet I found was the MPL, but it's a file-based license unfortunately.
- ece 5y ago
  I've thought about just copy pasting the linking exception here and modifying the relevant bits to suit the AGPL project: https://en.wikipedia.org/wiki/GPL_linking_exception#The_Classpath_exception https://en.wikipedia.org/wiki/GPL_linking_exception#The_Clas... As the wiki says, the LGPL offers even more, but the linking exception alone might be enough for some/most projects. IANAL.

torstenvl 5y ago

The general consensus is that AS IS isn't enough to protect you against implied warranties, because - despite the language of the UCC - some courts are freaking idiots. https://casetext.com/case/gaylord-v-lawler-mobile-homes-inc https://casetext.com/case/gaylord-v-lawler-mobile-homes-inc Why did you choose not to disclaim the big four implied warranties that nearly all open source licenses disclaim? Even BSD (the worst drafted license ever) explicitly disclaims two of the four (MIT and some forms of ISC get all three that realistically would apply to non-tangible property, and Apache 2.0 disclaims all four just to be safe). So it's a bit of a head-scratcher why you'd draft a license that incurs that legal risk.

kemitchell 5y ago
I don't agree that view is conscious consensus. It's the track of the herd, perpetuated by copy-and-paste. Copy-paste disclaimers have grown, drip by drip, like monster stalagmites in a damp cave. Successive, nervous lawyers deposit ever more warranties by name, some more or less made up by creative opposing counsel. Having attempted to list all conceivable warranties specifically, the language opens itself up to holdings that the drafters omitted the particular warranty the judge really wants to enforce, writing off any remnant general language of disclaimer. Big Time (and Blue Oak, and the PolyForm licenses) don't stop with the magic words "AS IS". In full, conspicuous formatting omitted: > As far as the law allows, the software comes as is, without any warranty or condition, and the licensor will not be liable to you for any damages arising out of these terms or the use or nature of the software, under any kind of legal claim. We can't stop courts from rendering bad decisions when they really, really want a result. But reading through Gaylord, the case you cited---admittedly, for the first time---I don't think the conclusory statement that "as is" can't apply to new goods ends our UCC 2-316(3)(a) conversation. We also have "other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty". Can a court really hold that Big Time software comes "with warranty", and expect to survive appeal? There was also a tort claim in Gaylord, which did stay dead on summary judgment. I think the Big Time license gets there, too, without having to specifically mention "tort". Again, by sticking to good general language, and not undermining it with a potentially incomplete list of specifics: "any kind of legal claim". At a higher level, there's a similar approach at work in Big Time's copyright and patent grants. Why list out all the exclusive rights of rights holders? Why risk omitting one, or putting it slightly different than in the relevant statute?

ThenAsNow 5y ago

I'm struggling to understand the vitriol toward this. It is a thoughtfully-crafted license, eminently readable, written by a skilled legal practitioner in this domain. I have no affiliation with the author of the license, but do appreciate his writings and contributions to the community. Whether it's OpenSSL, the recent PLC4X story, or Filippo Valsorda's recent posting, we are constantly reminded of how unsustainable it can be for the majority of FOSS developers. It's clear that relying on purely voluntary contributions to these developers does not work. Some model needs to be found that makes compensating more developers compulsory if we want to enable them to write/maintain their code as anything other than a hobby. This needs to be through a legal mechanism rather than social/moral pressure, because businesses understand legal requirements and most fulfill their legal obligations. I understand the pushback against calling this a Free/Open Source license, but the author never categorizes it as such. There is a strong good-faith foundation in this license of keeping it zero cost for those least able to pay, or most deterred by cost. It preserves the benefits of everybody being able to see the code they're running, make their own fixes/changes, etc. I get drawing some line around core OS components, etc., as needing to be GPL/BSD/MIT, but what alternative models to this kind of license are people proposing to deal with the sustainability gap? Nothing forces you as an author to use this type of license, nor are you forced to use products based on this license. I don't see a widespread way to address the sustainability gap while also religiously expecting all this code to be "no economic strings attached". If we all agree not to call it FOSS, does that tamp down the loud objections?

orangecat 5y ago
I'm struggling to understand the vitriol toward this. It is a thoughtfully-crafted license, eminently readable, written by a skilled legal practitioner in this domain. That's all well and good. It's still a proprietary license that rejects the most basic principle of open source, which is the ability of anyone to use and modify the software. And there's nothing wrong with that, but it's silly to expect FOSS advocates to embrace it.
- HexDecOctBin 5y ago
  But why the assumption that it is aimed at FOSS advocates? The license doesn't even mention source code, it has nothing to do with FOSS. Does FOSS has a monopoly on releasing software free of cost? Should no new interesting shareware-esque licenses be shared on a website dedicated to startups, lest the FOSS advocates be offended?