This one is something that were brought up a lot by developers including me who are very weary about corporations profiting off of our work for free and this basically put us off from contributing to open source in general.
We get a bunch of dialogues about this such as:
Developers like me: “Many of us who create are concerned about our work being exploited. The possibility of corporations profiting from our open-source contributions without giving back to the community disincentivizes us from participating in such endeavors.”
Open-Source Advocates: “The AGPL exists to mitigate such concerns. It requires derivative works to also be open-source.”
Developers like me: “While I appreciate the intention behind AGPL, there is a loophole - a ‘condom code’ if you will. Even though Linux Kernel prevents such strategies by refusing to merge these changes and that it’s difficult for a singular corporation to force an adoption of a forked version of Linux Kernel, a corporation can fork our much smaller project however and introduce such legal bypass to the copyleft restrictions. This bypass can be justified by them under the guise of extending the software’s capabilities with a plugin interface or an interprocess communication protocol layer, similar to how PostgreSQL allows User Defined Functions. However, I must caution that I’m not well-versed in the legal intricacies.”
When bringing up on non-commercial clause for licensing
Open-Source Advocates: “Disallowing commercial use of your project contradicts the principles of open-source.”
Developers like me: “Well, then perhaps we need a new term, something like ‘Open Code Project’. We can create projects that encourage collaboration and openness while also restricting commercial exploitation.”
So I created this post, because we do need to discuss on a path forward for Open Source in general knowing that corporation can shirk around this restriction and discourage developers like me from participating in open source or open code projects.
Contributing to open source projects is pretty much just altruism.
If we’re talking about protection of people integrating open source code in their proprietary code we’ll always have issues. It doesn’t matter if we declare our projects under GPL, AGPL, LGPL, CC or whatever, unless they do shoddy work, we won’t be able to know what code snippets, libraries or frameworks they’re using when source code isn’t disclosed.
People that want to be assholes will always be assholes. If you feel like giving back, contribute to an open source project. If you don’t, don’t. But making it about evil corporations is a bit meh. Even a company like Amazon is actively contributing to improving Java, offering the Amazon Corretto JDK for free. So the path forward may just be trying to be the change yourself, and making sure the company you’re working for is also giving back somehow.
I think the biggest con with this kind of license is that it also means neither you nor the collaborators can try to make a living out of it. Such a type of license forces entirely hobby work.
The cost of maintainership of the project and the fact that it may exclude people that don’t have the privilege of being able to contribute in their free time are both things that concern me quite a bit when you remove all commercial usage.
From what I understood about the copyright law is that you could create a separate license apart from non-commercial license and you could still sell a commercial license (if all contributors agreed to it, CAA/CLA agreements been signed, or some other agreements in place.) A project can have multiple licenses. Please correct me if I’m wrong however.
Yeah, that’d be the only way to do this but it also means the project can change the license at any time. As an outside developer, I would probably not want to rely on a project where it can go fully closed source potentially at any time.
It’s also worth noting but if you have a non-commercial license, you will also be incompatible with any GPL license.
You raise a good point on that consideration.
Isn’t the ultimate issue enforceability? For a dev to be awarded some of the profit made off an open source project:
- A whistleblower would have to discover, gather, and publish evidence that the software was being used to generate profit
- The dev would have to win a court case against the company
It would be fuckin rad if that happened and a dev got a huge payout and a legal precedent was set. But it’d be more rad if we didn’t live in a society where this was an issue in the first place :[
I’ve worked at more than one job where I was told it was OK to use MIT, or Apacje-2.0 licensed things, but to not touch any GPL or AGPL software.
So, even though there wasn’t any non-commercial clause in the license, it’s copyleft nature led to that effect at those businesses.
In general, I like the balance that the GPL & AGPL strike - commercial use is allowed, but the company has to give back. The “condom code” thing that you mentioned is certainly less than ideal. I would prefer that businesses open up their full codebase. But, I think the more likely scenario is that they just don’t use any open source at all (or they use it and violate the license!) I’d prefer condom code over either of those possibilities.
Software licenses cannot solve every problem and AGPL is still the best option.
There are many larger problems related to FOSS including freeloading, right of repair, surveillance, lock-in… and they require social solutions rather than new licenses.
You don’t need to read much history to find plenty of bad things done by non-commercial entities, e.g. governments. Or churches.
It’s not commerce that is the problem, it is oppression. Use of my code for oppressive purposes is the thing I want to avoid.
Simply put, for works you want to prevent from being commercialized by other companies. Don’t open-source it. Keep it closed source. If you feel like it, put an email address out there and say something like “if you want access to the source, let’s talk.” It requires you to vet everyone who has access but if you are wanting to be that guarded with your code then that’s what you need to do.
That said you could just BSD/MIT license your code. If your project is small it’s unlikely to even be noticed. In the end, any license you create that offers the source code without applications means it’s open for any corporation to just take. Regardless of the code license. The fact is that you are a small-time developer and don’t have the power of lawyers to counter them. So either open your code for everyone, vet each entity you open the code for, or don’t introduce the headache of dealing with any of this and keep it closed. Tell yourself you will open the source later on after you are done with it.
Realistically, these are your options. There are plenty of creative commons or such licenses that exist to exclude commercial works but again, lawyers cost money. If you aren’t willing to fight the battle you might as well CC0 the code because that’s essentially what it is.
You sum up what I thought about as well, yep. There are compromises to each license and obviously the loophole that is presented for each one. One of the idea I was exploring is licensing my GUI Toolkit (alternative to GTK and QT) something similar to Community License in Visual Studio (it allows commercial use for personal/small business and if organization is larger than that, then it would have to purchase a separate license.)
Check out Epic’s Unreal Engine License. Essentially after a certain amount of income they require revenue percentages from sales of the product. You could likely do something except as a flat fee rather than a percentage of sales. Again, though, enforcement takes money though. Is your GUI toolkit so revolutionary that people will even use it? It’s more likely to get more people using it if it’s open source but of course, it means you can’t really monetize it to commercial projects.
I don’t think it’s that revolutionary, but there are some things that doesn’t exist in current GUI Toolkit worlds.
The GUI Toolkit I wrote utilize few things:
- It runs on Vulkan and the pipeline use custom developed 2D rendering context, not 3D so there is a significant boost in performance and reduction in computation requirements on both GPU and CPU. Vulkan allows GUI to work on just about any devices made in the last decade and can fallback on CPU using Swiftshader.
- I established FFI-JSON to simplify binding for any programming languages to bind to my GUI Toolkit as well as extending the GUI Toolkit itself.
- Designed for Buffer-based controls - If you want to load up a 2GB text file into a textbox, it offers a way that it would work without freezing up the program.
- Accessibility protocol in IPC - Similar to DBus, but documentations are provided to simplify the process of utilizing such protocol and it’s focusing on cross-platform conventions where Dbus might not be available.
- Library itself is Cross-platform and written in C Language, enabling the larger cross-section of compatibility
- The project is built for IR linkage purposes hence why the code should be open source, because the code is already open by IR anyway. By offering IR linkage by default rather than Object files or dynamically linked library, IR allows everyone to gain immense performance boost through compiler’s features of auto-vectorization, dynamic dispatch converting to static dispatch when possible, internalization pass and more aggressive dead code eliminations. It’s not unusual to see a 80% reduction in code size through this process and see as much as 10x performance improvement compared to dynamically linked libraries.
- Conventions for stylizing/theming the GUI through CSS (the goal is to offer a permanent theming capability in GUI even though it can be a challenge to maintain.)
That on top of my head, I wanted to have a GUI that focuses on making it easier to extend while keeping it conventional for those familiar with Windows Forms on Microsoft Windows and eventually WPF if time allows.
That the gist of why I wrote my GUI Toolkit and I have spend 4 years working on it, it’s reaching the point that it could be ready for prime time basically.
The licenses you brought up is interesting and it could work too.
Okay, now I am interested in learning more about this GUI toolkit even though I am a game developer, not an app developer. Got a website or such?
Currently early atm, but generally, I got the backend code sorted out where we have cross-platform windowing context, vulkan code, accessibility protocol, and so forth. The challenges are the front end GUI, making it looks pretty, it’s still have a way to go.
And of course the documentation which is still WIP. I wrote other docs sometime like this for C language development community which I have put off for a while since I worked on few projects:
- Finish making deliverable for AI Framework to replace Pytorch/Tensorflow that uses IREE Compiler for my client. (IREE Compiler basically takes in your MLIR code and compile that to either SPIR-V shader code, CUDA code, ROCm, or anything else really rather than just mainly CUDA on Pytorch/Tensorflow.) I should have this done by tomorrow, it just making a web for my client that is 90% done and I just have to plug my AI into it.
- Work on Melosynthos which is basically a Compiler Generator, it’s about 60% done and can help a lot on building unit tests for GUI Toolkit.
- Finish up GUI Toolkit and try to make GUI that takes some inspirations from this
- Finish up documentations for that GUI Toolkit
- Build a web to demonstrates GUI Toolkit and let people go nut with it.
The best part is… I solo-develop all of it… facedesk
I kind of want GPL, but with one extra clause that says that violating the terms of the GPL permanently and irrevocably terminates all right to touch anything else under the same license, including your own code.
Fat chance. We can’t get the existing terms of GPL to be enforced
Re: red hat restricting redistribution of GPLv3’d code
To ensure software freedom you must first destroy capitalism
There are already licenses like this. Namely the sspl and the bsl. Id argue they drive away more contribution than they protect devs. Especially sspl because it’s not clear if I have to open my entire automation repo if I give a 3rd part contractor access to a web app. Also they are not open source since they restrict who can use it
There are a number of licenses that do this. And yes, many of them are not OSI approved and people will say mean things about not using the word open source. Which you should ignore and instead perhaps say fair source instead if you care.
A couple to look at:
a public LICENSE that makes software free for noncommercial and small-business use, with a guarantee that fair, reasonable, and nondiscriminatory paid-license terms will be available for everyone else
Prosperity is a public LICENSE for software that makes work free for noncommercial use, with a built-in free trial for commercial users.
I also recommend going through the back log of posts by Kyle Mitchell, an engineer - lawyer who has authored a number of great software licenses, including the two I listed.
@TheTrueLinuxDev - If your goal is indeed non-commercial usage, then what you need is a clear new license with a clear new name: “Non-Commercial Source License” (NCSL), or possibly “Public Domain Source License” (PDSL).
You want an option analogous to
NCin Creative Commons:Only noncommercial uses of the work are permitted
I basically take the position “you need a different, non-confusing term”. Open Code is not such a term.
My view is shaped from the cultural realm more so than the software side, but I think the concern at the centre of it is transferable: it becomes extremely messy to capture the desired acceptable uses in the legal wording of an enforceable license. The outcome is that every use will have to be individually authorised.
I was helping run and occasionally held the editor role of a leftist magazine which we decided to make Free Culture under CC-BY-SA. Content using the Non Commercial clause gave us such headache, while even though we did not charge for the magazine nor we ran adverts, we accepted and strongly encouraged donations from our readers. That money went to pay off the printing costs (the NC clause already has a problem with that, but we assumed that would still be defensible), but the rest was also invested in other endeavours like public events, or eventually helping fund a community centre.
At that point, it didn’t matter if creators with NC works released them under a supposedly free license. Our -in our opinion- non-for-profit use was still so tainted with money changing hands, that we still needed to seek their consent and get a written permission on top of the original license. At the end of the day, it was the same as working with All Rights Reserved works, where we get a special license from a sympathetic creator. The NC clause solved nothing for us.
That part is, I believe, the same with software licenses. We will end up having to get 1:1 license agreements for so many things because the new anti-commercial licenses will not be able to predict all the scenarios which are “false positives” for the anti-capitalist software developer (as in, some desirable re-uses will be blocked by the license, and individual licensing agreements will be needed often).
My focus would be to fix the loopholes that go counter to the copyleft spirit in AGPL, if such loopholes are identified, and perhaps get a more reliable organisation handle the AGPL definition in the future.
Just to add to the topic, the ‘condom code’ point you bring up is actually well-established in the business - the so-called ‘Embrace, Extend, Extinguish’ technique.
And it sucks that it such a massive discouragement from a lot of developers who shared similar concerns as I have about this.