In the past few years, many companies have come to me asking for help drafting a “new open source license.” As a rule, drafting a new open source software license is not a good idea, so I always hear this request with skepticism. But lately, what is behind these requests is something new — frustration with, or perhaps misunderstanding of, existing open source business models. Inevitably, what these companies really want is some kind of proprietary license that makes source code available. Not open source, but open in a different, and more limited, sense.
For a few years now, companies have tried alternative approaches that make source code available, but with license scope limitations that will prevent massive free riding on their development work. For example, a few years ago, I helped with a model called theFair Source License. That was one approach to limited, source-available licensing that allowed free use below a certain threshold. But this trend is far from done, as companies continue to struggle with how to balance collaborative development and sharing of source code with making money for their own efforts, or their investors.
To understand why companies have come to this difficult choice, it’s necessary to understand the business models that companies use to make money with open source software. Without making money, they can’t survive. But making money with open source is not intuitive, and not easy.
What is an Open Source Business Model?
Open source business models are almost always either service models or “razor blades” models — the later coming from the (possibly apocryphal) pronouncement of King Gillette,Give ’em the razor; sell ’em the blades. The razor blades model works — just not for software companies selling only software. Companies can sell hardware or other complementary products and give away open source software, and still fill the revenue coffers. In fact, arguably, that’s what has made Linux such a darling of the entire industry. The companies contributing to Linux are, almost to a one, not selling Linux. They are all selling something else: computers, other devices, or services. But the open source software they make does not give them a competitive edge.
A variation on this theme is that some companies have made money offering professional services, like development, system management, or maintenance services, for open source software. But as everyone in the Valley knows, professional service models do not scale. Overhead allocation aside, the first hour of professional services costs a business just as much as the 10,000th hour. With that model, you don’t get the multiples that investors expect and you are basically selling your personal time. All you can do in that model is work harder or work smarter, but there is a limit to how much you can do and how much you can know. (As any lawyer can tell you.)
Some companies have done quite well selling other kinds of services — such as e-commerce or other web based services — that make heavy use of open source software. But of course they are not selling software either; they are, like the razor blades companies, investing in their own infrastructure but selling something else.
Over time, companies who wanted to make a business selling open source software — the razors rather than the blades — have had to be more creative. In the 2000s, a business model emerged that is usually called “dual licensing.” It was pioneered by MySQL AB, later acquired by Oracle. Dual licensing works like this: the company releases software under a copyleft license like GPL. However, anyone integrating that software in a proprietary product would have to violate GPL to distribute its product. Therefore, the company offers alternative, proprietary licenses, for those wishing to distribute the software as part of a proprietary product.
This model works because GPL does not allow distribution of GPL code within a proprietary product, and because vendors of proprietary products were not willing to lay open their proprietary code under a compatible license. Therefore, the vendor of a dual licensed product places its developer community between a rock and hard place, with an option to buy their way out.
Many people find dual licensing models confusing, and they often ask, how can anyone license GPL code under a proprietary license? The answer is that not just anyone can do that, only the author of the software (or a subsequent copyright owner via assignment). The author of software, as owner of the copyright, has the right to choose multiple outbound licenses. In other words, the software is not GPL unless and until the author says so. Only the author can make that unfettered choice — everyone downstream must make the dual licensing choice.
But that model only works, in an economic sense, for cases like MySQL where two conditions are met: the software is not an entire program, and the software is mainly used in distributed products. If the software is an entire program, then anyone can use and distribute the software under GPL. The pain point comes when the GPL code must be integrated with proprietary code to make it work. In this sense, dual licensing is like an intentional “license bug” that has to be solved with a proprietary license.
And there are complications. Dual licensed products are rarely truly community projects, because, to make the model work, contributors have to grant the vendor broad enough rights to allow the vendor to use contributions under either GPL or proprietary terms — in other words to use a contribution license agreement or CLA. Contributors tend to balk at this requirement, resulting in demands for license in = license out.
Historically, dual licensing models were almost always implemented with GPL2 as the open source choice; most other licenses lack the conditions to drive private businesses to the proprietary licensing choice. Once GPL3 and AGPL3 were released, those licenses took their place as part of the dual licensing model, because they imposed more conditions on the exercise of the license than GPL2.
But that is not the only limitation of the dual licensing model. If the software is intended for uses (such as supporting SaaS, monitoring or development tools, or software intended for end use) that would not normally require distribution, then GPL would not drive anyone to take a proprietary license. So, the dual licensing model waned in popularity over time. AGPL was potentially more effective in such cases, but again, only for pieces of programs, not whole ones. Today, pure dual licensing models are not so common, and have given ground to the “upsell” model described below.
In one variation on the dual licensing model, which is sometimes referred to as an upsell model, the company releases a basic “community” version of its software, saving the “enterprise” features for proprietary licensing. This approach makes more sense in some cases than others. Enterprise editions can include features that are legitimately unique to commercial enterprise deployment — such as the ability to spin up and coordinate many simultaneous instances, servers or users. But often they simply include attractive features that the developer wants to sell rather than give away. Even worse, some dual licensing models do not make clear the distinction between their community and enterprise editions, leaving customers unclear on which they need.
Dual licensing and the free software movement have always been uneasy bedfellows. Dual licensors have been instrumental in establishing the enforceability of licenses like GPL; after all, they have the incentive and money to bring enforcement claims. But free software advocates have often denigrated the pure dual licensing model or called the upsell model by pejorative terms like “crippleware.”
Infrastructure and Free Goods
The moral rightness — or for that matter the commercial effectiveness — of dual licensing models is in the eye of the beholder. But there is a subtler reason for this diversity of views that has nothing to do with philosophy. It is because the free software model is primarily focused on infrastructure, and the proprietary model primarily on higher level applications.
Free software for infrastructure is like banning toll roads. If we have free roads, we can all share them, and get from place to place. It makes sense for infrastructure to be a public good. There are lots of economic participants willing to contribute to infrastructure and the cost can be spread across many parties. Collecting tolls is time consuming and expensive, and thwarts commerce. So we expect the government to build roads, fund the building collectively through taxes, and defray the expense through the increased commerce the roads create.
But collaborative economics don’t work so well for bicycles. For bicycles to be useful, you definitely need roads. But you don’t need the government to build bicycles. Private companies will build those, and in fact, will offer a dizzying array of models, prices, quality, and specialization. The price for bicycles will be borne by those riding them, and the transactions costs are more efficient — it’s easier to charge once for a bicycle than every day for a road.
Similarly, free software is a great model for infrastructure, but much more difficult for applications. While many companies will collaborate to build operating systems and web servers, they will not be so keen to collaborate to build applications. This is not a new idea — it was behind Linus Torvalds’ position that user space programs could run on the Linux operating system, regardless of their licensing.
New Licenses, New Models, Old Models
All this is preface to explain that today, more and more companies have decided that even dual licensing does not work as a business model for applications. Dual licensing is about as far as an open source licensing model could be pushed without foregoing licensing revenue entirely. So now, software developers have begun to insist: I need my software to be free only for non-commercial purposes. Or, I need my software to be free only for small users, or for some kinds of uses. And most common: I don’t want anyone to use my software to provide paid services without paying me. That is the genesis of the “new open source license” people ask me to write. What they are saying, by implication, is that open source licensing does not work for them as a business model.
Wanting to prevent free-riding is understandable, but it is not open source. In fact, any license restriction is not open source. For example, the Open Source Definition (planks 5, 6, 8 and 10) prohibit limitations on fields of endeavor, types of users, or types of products. In fact, open source licensing, by definition does not limit the scope of a license — it only applies conditions to exercising the license. This distinction is subtle but important. In open source licensing, no one can stop you from doing whatever you want with the software — whether that use is commercial or non-commercial, or famously, good or evil. Limited, or proprietary, licensing does not let you do everything you want, but only what the licensor allows. Perhaps you can use but not distribute. Perhaps you can distribute but not modify. Perhaps you can distribute only in free products. The variations are infinite.
Proprietary licensing has been around for a long time, of course, and it is not going away any time soon. It was invented to allow software developers to make money. So it is not surprising that some developers, despite that they love the collaborative aspects of open source, want to move to proprietary models. The question is not whether they will do that — they will. The only question is how much of the open source model they can preserve in a proprietary paradigm.
One of the things people love about open source licensing is that it is (mostly) standardized. Although there are over 100 OSI-approved open source licenses, people only use a handful of them with any frequency: BSD, MIT, Apache 2, MPL, EPL, LGPL, GPL, AGPL. One of the boons of open source licensing is that a few letters can identify a licensing model, and those tasked with license compliance don’t have to read hundreds of licenses to know how to do their job.
But proprietary licensing is, at this point, mostly still the wild west. If you count Creative Commons licenses — which are not really software licenses — there is a small amount of standardization. But for the most part, the end user license for one proprietary product bears little resemblance to that for another product, other than overarching substantive terms. Lawyers who practice in this area all have their own favorite forms, and many of them are similar in substance, but you still need to read the fine print every time.
What the technology business is seeming to cry out for is standardized and easy to understand proprietary licenses. They don’t want to pay lawyers thousands of dollars to write non-standardized licenses that licensees find hard to understand. What they want is something more like a “smart contract” — a set of terms with minimal variations that can be quickly and easily understood but have a reasonable force of law.
Technology transactions lawyers need to understand that non-standardized and elaborate software licenses are going to become a thing of the past. For proprietary licensing, we are at the point of “evolve or die.” But there is nothing preventing us from evolving; all we need is a pen.
For open source advocates, the choice is now. Copyright holders have the right to set their terms, and open source terms don’t always work for businesses with commitments to the bottom line. Too much criticism of alternative models will probably result in vendors backing into proprietary licensing models that don’t preserve any of the benefits of open source. In other words, halfway is better than none.