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Not a lawyer so confused about how requiring a fee to get the binary is in practice compatible with open source licenses, which grant the right to redistribute

Not a lawyer so confused about how requiring a fee to get the binary is in practice compatible with open source licenses, which grant the right to redistribute said binary. I.e. even if the project itself does not want to give me a copy of the binary, anyone who has obtained that binary can lawfully gice it to me. Basically, my understanding is that as long as the software is released under an open source license it is not possible to require a payment for its use or to limit distribution. If you wish to do that you need to relicence.

Spivak 1y ago
You can sell open source software and you can charge for binaries and add additional terms on the binaries that restrict distribution. This is how RHEL works. But what you can't do is prevent someone who acquired the source from distributing the source and their own binaries. Which is how Rocky Linux works.
- mytailorisrich 1y ago
  Thanks, I think this is my answer re. binaries. I suppose it also depends on the original license (I think something like the 3-clause BSD license does not allow restricting binaries, for instance).
woodruffw 1y ago
I think the distinction being made here is between the source code (which is remaining open source) and the binary (which is effectively becoming proprietary). Users would no longer have a right to redistribute the binary, since it would no longer be open source. (To my understanding, this is similar to Microsoft’s “trick” for discouraging VS Code forks: VS Code and many of its core extensions are open source, but their builds are not.)
Cheer2171 1y ago
> license it is not possible to require a payment for its use or to limit distribution Those two are not the same, see https://www.gnu.org/philosophy/selling.html https://www.gnu.org/philosophy/selling.html You can also try to charge $10000 for a gold plated CD copy of the Linux kernel without having committed a line yourself.
- mytailorisrich 1y ago
  Of course you can sell copies. My point is exactly this part of the article you've linked: "With free software, users don't have to pay the distribution fee in order to use the software. They can copy the program from a friend who has a copy, or with the help of a friend who has network access".
- dec0dedab0de 1y ago
  You can charge for the source code too, just not separately. But you can definitely have an opensource project that is not available free of charge from any official source. Your clients can redistribute for free or not, but you are not required to just let the whole world have your code directly from you.
deleted 1y ago
[deleted]
coldpie 1y ago
You're correct, but I guess they're banking on their users preferring to get the binaries straight from the source instead of through an unaffiliated third party. There are also other benefits to paying, such as being able to file issues against the official repository. Seems like a pretty reasonable compromise to me, to be honest. The license even says you may redistribute the binary you acquire from them: > User may redistribute the Binary Release received under this Agreement, provided such redistribution complies with the OSI License (e.g., including copyright and permission notices). https://github.com/wixtoolset/wix/blob/main/OSMFEULA.txt https://github.com/wixtoolset/wix/blob/main/OSMFEULA.txt
- robmensching 1y ago
  > I guess they're banking on their users preferring to get the binaries straight from the source instead of through an unaffiliated third party. Yep. It turns out a lot of companies are willing to pay for maintenance but they aren't willing to pay for charity. The EULA is what activates the internal corporate mechanisms to make that happen.
dec0dedab0de 1y ago
If it is actually under an open source license then you are correct. They can charge for the right to download it from their servers but they cant stop someone from then redistributing it. Anybody redistributing could also charge if they wanted to.
victorbjorklund 1y ago
There are many different open source licenses, and what counts as "open source" can depend on your definition. In theory, you could write a license that makes the source code freely available but restricts binary distribution, or excludes certain groups or use cases from using the software (like not allowing AWS to resell it as a service). Some would argue that's no longer truly open source, but legally, you can add almost any condition to your license. In this case, it sounds like they're charging a fee for their pre-compiled binaries and possibly using an end user agreement to restrict redistribution. But since the source is available, anyone could compile it themselves and share the binary, unless the license specifically forbids that. Realistically, though, many people who want the software will just pay for the convenience of the official binary rather than go through the hassle of compiling it or finding someone else who did. So, while the situation is a bit unusual, it doesn't seem like a major issue in practice.
natemcintosh 1y ago
I watched the video on the open source maintenance fee page (https://opensourcemaintenancefee.org/ https://opensourcemaintenancefee.org/) and it explains that the fee is for 1) people/orgs who make revenue from the open source code AND 2) want to interact with the GitHub project (e.g. open issues). You can however 1) make revenue from the open source code, but not interact with the GitHub project without paying the fee. For instance, if I'm an organization that wants to use this open source project for free, I can download and build the code, but not download a GitHub generated release binary.
pbhjpbhj 1y ago
Probably dependent on jurisdiction - whilst practically, having the binary means you can share it, that's not legal without license to do that (in UK) as even though it's open source the copyright still exists on the binary (and because sharing is copying). You might be free to compile your own from shared source code, however. Depends also on the license used ofc.
qwery 1y ago
For one thing, I don't think they think they have a silver bullet here. I think they want some financial support and if some users of the project pay the fee that will be some success. To the specifics, it's not a software license fee -- they aren't selling access to the software. It's a "maintenance fee", to fund the project. So the license of the code isn't a problem, you can (still) choose to license that under whatever terms are available. From their FAQ[0]: > Q: What if I don’t want to pay the Maintenance Fee? > That’s fine. You can download the project’s source code and follow the Open Source license for the software. > Do not download releases. Do not reference packages via a package manager. Do not use anything other than the source code released under the Open Source license. > Also, if you choose to not pay the Maintenance Fee, but find yourself returning to check on the status of issues or review answers to questions others ask, you are still using the project and should pay the Maintenance Fee. [0] https://opensourcemaintenancefee.org/consumers/faq/ https://opensourcemaintenancefee.org/consumers/faq/
- svieira 1y ago
  > > Also, if you choose to not pay the Maintenance Fee, but find yourself returning to check on the status of issues or review answers to questions others ask, you are still using the project and should pay the Maintenance Fee. I think this is going to hard against the "economy of gift" and isn't going to play well in the end. If they were hosting their own forum / mailing list, charging to access the community would make sense. But the forum is hosted by a company that gives it away for free. The people posting are posting freely (and may not be associated with the project). Some of the people posting answers are members of the project, but some are not. If the maintainers get an answer from someone else are they obligated to pay the answerer a maintenance fee? I would limit this to "if you find yourself asking about an issue or posting an issue", since those are points where you are looking for help not just from the community at large, but from the maintainers in particular.
  - robmensching 1y ago
    I would encourage you to read through the first couple pages of the Open Source Maintenance Fee website. I think you'll see there are a lot costs you're not taking into account.

Spivak 1y ago

You can sell open source software and you can charge for binaries and add additional terms on the binaries that restrict distribution. This is how RHEL works. But what you can't do is prevent someone who acquired the source from distributing the source and their own binaries. Which is how Rocky Linux works.

mytailorisrich 1y ago
Thanks, I think this is my answer re. binaries. I suppose it also depends on the original license (I think something like the 3-clause BSD license does not allow restricting binaries, for instance).

woodruffw 1y ago

I think the distinction being made here is between the source code (which is remaining open source) and the binary (which is effectively becoming proprietary). Users would no longer have a right to redistribute the binary, since it would no longer be open source. (To my understanding, this is similar to Microsoft’s “trick” for discouraging VS Code forks: VS Code and many of its core extensions are open source, but their builds are not.)

Cheer2171 1y ago

> license it is not possible to require a payment for its use or to limit distribution Those two are not the same, see https://www.gnu.org/philosophy/selling.html https://www.gnu.org/philosophy/selling.html You can also try to charge $10000 for a gold plated CD copy of the Linux kernel without having committed a line yourself.

mytailorisrich 1y ago
Of course you can sell copies. My point is exactly this part of the article you've linked: "With free software, users don't have to pay the distribution fee in order to use the software. They can copy the program from a friend who has a copy, or with the help of a friend who has network access".
dec0dedab0de 1y ago
You can charge for the source code too, just not separately. But you can definitely have an opensource project that is not available free of charge from any official source. Your clients can redistribute for free or not, but you are not required to just let the whole world have your code directly from you.

deleted 1y ago

[deleted]

coldpie 1y ago

You're correct, but I guess they're banking on their users preferring to get the binaries straight from the source instead of through an unaffiliated third party. There are also other benefits to paying, such as being able to file issues against the official repository. Seems like a pretty reasonable compromise to me, to be honest. The license even says you may redistribute the binary you acquire from them: > User may redistribute the Binary Release received under this Agreement, provided such redistribution complies with the OSI License (e.g., including copyright and permission notices). https://github.com/wixtoolset/wix/blob/main/OSMFEULA.txt https://github.com/wixtoolset/wix/blob/main/OSMFEULA.txt

robmensching 1y ago
> I guess they're banking on their users preferring to get the binaries straight from the source instead of through an unaffiliated third party. Yep. It turns out a lot of companies are willing to pay for maintenance but they aren't willing to pay for charity. The EULA is what activates the internal corporate mechanisms to make that happen.

dec0dedab0de 1y ago

If it is actually under an open source license then you are correct. They can charge for the right to download it from their servers but they cant stop someone from then redistributing it. Anybody redistributing could also charge if they wanted to.

victorbjorklund 1y ago

There are many different open source licenses, and what counts as "open source" can depend on your definition. In theory, you could write a license that makes the source code freely available but restricts binary distribution, or excludes certain groups or use cases from using the software (like not allowing AWS to resell it as a service). Some would argue that's no longer truly open source, but legally, you can add almost any condition to your license. In this case, it sounds like they're charging a fee for their pre-compiled binaries and possibly using an end user agreement to restrict redistribution. But since the source is available, anyone could compile it themselves and share the binary, unless the license specifically forbids that. Realistically, though, many people who want the software will just pay for the convenience of the official binary rather than go through the hassle of compiling it or finding someone else who did. So, while the situation is a bit unusual, it doesn't seem like a major issue in practice.

natemcintosh 1y ago

I watched the video on the open source maintenance fee page (https://opensourcemaintenancefee.org/ https://opensourcemaintenancefee.org/) and it explains that the fee is for 1) people/orgs who make revenue from the open source code AND 2) want to interact with the GitHub project (e.g. open issues). You can however 1) make revenue from the open source code, but not interact with the GitHub project without paying the fee. For instance, if I'm an organization that wants to use this open source project for free, I can download and build the code, but not download a GitHub generated release binary.

pbhjpbhj 1y ago

Probably dependent on jurisdiction - whilst practically, having the binary means you can share it, that's not legal without license to do that (in UK) as even though it's open source the copyright still exists on the binary (and because sharing is copying). You might be free to compile your own from shared source code, however. Depends also on the license used ofc.

qwery 1y ago

For one thing, I don't think they think they have a silver bullet here. I think they want some financial support and if some users of the project pay the fee that will be some success. To the specifics, it's not a software license fee -- they aren't selling access to the software. It's a "maintenance fee", to fund the project. So the license of the code isn't a problem, you can (still) choose to license that under whatever terms are available. From their FAQ[0]: > Q: What if I don’t want to pay the Maintenance Fee? > That’s fine. You can download the project’s source code and follow the Open Source license for the software. > Do not download releases. Do not reference packages via a package manager. Do not use anything other than the source code released under the Open Source license. > Also, if you choose to not pay the Maintenance Fee, but find yourself returning to check on the status of issues or review answers to questions others ask, you are still using the project and should pay the Maintenance Fee. [0] https://opensourcemaintenancefee.org/consumers/faq/ https://opensourcemaintenancefee.org/consumers/faq/

svieira 1y ago
> > Also, if you choose to not pay the Maintenance Fee, but find yourself returning to check on the status of issues or review answers to questions others ask, you are still using the project and should pay the Maintenance Fee. I think this is going to hard against the "economy of gift" and isn't going to play well in the end. If they were hosting their own forum / mailing list, charging to access the community would make sense. But the forum is hosted by a company that gives it away for free. The people posting are posting freely (and may not be associated with the project). Some of the people posting answers are members of the project, but some are not. If the maintainers get an answer from someone else are they obligated to pay the answerer a maintenance fee? I would limit this to "if you find yourself asking about an issue or posting an issue", since those are points where you are looking for help not just from the community at large, but from the maintainers in particular.
- robmensching 1y ago
  I would encourage you to read through the first couple pages of the Open Source Maintenance Fee website. I think you'll see there are a lot costs you're not taking into account.