FOSSA, a new tool for managing open source compliance, has achieved a big business milestone — public beta release and a funding round. Congratulations, well deserved.
On February 14, 2017, MariaDB released an update to its Business Source License. The BSL is an alternative to free software licensing, intended to help developers reap the economic benefits of their work, while still making source code available to the community.
The BSL mades code available for a limited time on limited terms, but converts automatically to an open source license (the “Change License”) on a pre-determined date (the “Change Date”).
This new version of BSL was reviewed by open source pioneer Bruce Perens (and me), and so now BSL 1.1 has been adjusted for clarity, consistency with eventual open source release of the code, and potential use by other developers as a template license.
The changes included:
- Limits on the time elapsing before the Change Date, so the software will be converted to open source in a reasonable amount of time
- Requiring the Change License to be GPL compatible
MariaDB also used the announcement to adjust and clarify the licensing going forward for its MaxScale products.
The BSL represents one of a new crop of license models attempting to bridge the gap between open source licensing and proprietary licensing — seeking to create the community benefits of access to source code while preserving a viable economic model for the developer. The more common open source business models of customization or maintenance services, widget frosting, and dual licensing have lost some of their luster over the years, as businesses — particularly startups — have struggled to serve both the community and their own economic needs. Another approach in this new crop is the Fair Source License — which is a proprietary source-available license with modest limitations on royalty-free use.
As Kaj Arnö commented on his blog: “It’s authentic, it’s honest, it’s fair for your users, your customers, your developers and your shareholders alike. Go BSL!”
MariaDB is an increasingly popular open source database product started by the founders of MySQL. Many users have grown frustrated and dismayed with MySQL’s licensing policies and lack of community involvement after the acquisition by Oracle, and so many are turning to MariaDB as a viable option.
Congratulations to MariaDB on this effort.
In February 2017, Microsoft announced expanded IP coverage for its Azure cloud service. This move follows in the footsteps of earlier open source indemnity pledges by companies Red Hat, Novell and IBM.
Microsoft describes the program:
“Azure IP Advantage is a program for Azure customers offering best-in-industry protection against intellectual property risks, so developers can focus on coding and customers can focus on running their businesses, with reduced risk and exposure to IP lawsuits without diminishing customers’ own IP rights. It has three components to help customers protect their cloud investments:
- The ability to pick from 10,000 Microsoft patents to help defend against an IP lawsuit
- Industry leading uncapped indemnification for IP lawsuits, including open source incorporated into first-party Azure branded services
- A springing license to any Microsoft patent that is transferred to non-practicing entities
Some eligibility requirements apply.”
Microsoft’s IP indemnity (the Azure Advantage Program) is described in the Azure Terms of Service that issued on February 1, 2017. Essentially, it is part of Microsoft’s general indemnity coverage for IP claims regarding Azure, but Microsoft notes it now does not exclude open source elements. Coverage would therefore include Hadoop, but “Open source that is provided under a separate license, such as a Linux distribution in a VM, is not covered by Microsoft’s terms.” This is perhaps an elegant way to exclude any GPL software — which would by definition be covered by a separate license.
The terms and conditions of this IP protection say a few interesting things.
- The coverage applies to “Qualified Customers” that have spent $1000 per moth during the prior three month period on Azure, excluding resellers of cloud services like Google, Amazon and IBM.
- It contains a springing patent license (LOT-Style) in the event Microsoft sells a patent to a patent troll. That license covers the customer’s products running on Azure.
- It promulgates a list of Azure-related patents that are available for sale by Microsoft — presumably for use for defensive purposes — if the customer is sued by a patent plaintiff accusing products deployed on Azure. It is limited to one per year, per lawsuit, per customer. (This brought to mind for me a video game where you get to pick one weapon at the start. But here, you can’t trade up or earn the others.)
Overall, this is an interesting move by Microsoft, and equally interesting is the scanty press coverage it got. Earlier pledges regarding Linux by companies like Red Hat made a big splash, but those happened many years ago. Some readers will react with ironical skepticism, given Microsoft is one of the biggest patent licensors for (read, “claimants against”) Linux, and those claims arguably made some of those original pledges a commercial necessity.
But there is no moral high ground in indemnities. They are a commercial necessity, or they are not, depending on the circumstances. Microsoft’s FAQ and marketing announcement are laced with phrases like “unlike some of our competitors” — that do not offer the same coverage. This step by Microsoft shows that IP indemnities are a potential commercial advantage in the the cloud services wars, which are the commercial free-for-all of the decade.
This article describes a case involving a divorce between two programmers in Oregon. One accused the other of sexual assault, and the defendant filed a claim for defamation, because “news of the accusations and information on the police report quickly circulated in Portland’s tightly connected open source software community” and “[h]e claimed the accusations prevented him from finding work in open source software.”
The legal issue in the case has to do with anti-SLAPP legislation, a topic on which I claim no expertise. SLAPP is an acronym for a “strategic lawsuit against public participation.” A SLAPP is a lawsuit intended to intimidate or discourage or burden an accuser (such as a whistle-blower or criminal complainant) by suing for defamation. Many US states have enacted statutory protections against SLAPPs, and this case tested the applicability of one of those statutes.
But what does that have to do with open source software licensing? Not a lot, directly, but it bears mentioning that open source communities are beginning to change their attitudes about regulating their members’ behavior. If it’s true that being accused of sexual assault can get one ostracized from open source development in Oregon, that’s actually remarkable. Open source software communities have been known historically for not seeking to control the behavior of their members. Now some open source communities have begun to take codes of conduct — formal or informal — more seriously. This probably won’t be the last clash between tenets of open source governance, inclusiveness of communities, and the law of defamation.
Arista Networks successfully defended a copyright claim by Cisco based on the use of Cisco’s Command Line Interface. The jury returned a verdict that the use was not fair use but was scènes à faire –– a copyright doctrine that has historically been applied as a defense to claims of infringement for works like books, video games, and movie scripts. The doctrine holds that copying elements that are necessary to a genre of work is not infringement. For instance, a western would contain a sheriff, a bad guy with a black hat, and a final showdown, and any work copying such elements would not infringe as a result. Software lawyers have long posited that this doctrine might be applied to copying of elements of software that are standardized, so this successful invocation of the doctrine is significant. The case may be appealed, and because the initial claims included patent claims, the Federal Circuit would hear the appeal.
Richard Fontana sums the developments of 2016 up nicely in this article.
Here is an article about SunLaw, for which I had the pleasure of presenting a seminar on open source licensing recently. Click through to see a photo of Olga Mack looking determined and fantastic, as always. It’s nice to see a shout-out to this excellent group.