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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 popula

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/
- rolleiflex 5y ago
  FRAND defines fair in a very specific way in terms of pricing. For example the definition of F (fair) in FRAND is exemplified as not requiring purchase of other, unwanted licenses as a condition to the purchase of the particular license the customer wants to buy. However that does not exactly seem to be the use in this license because here it seems like fair would also carry the meaning of 'not too expensive', as I interpret the author's explanation: > ' 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.' 'Too expensive' far as I know is not a part of FRAND, the fair in FRAND means something that is subtly different — though I am not knowledgeable enough to conclusively say FRAND includes this author's particular meaning of fair. To my best reading, it seems like it does not.
  - AlexCoventry 5y ago
    The second link I gave is explicitly about fair royalties, though.
    - rolleiflex 5y ago
      Ah, my apologies, it wasn't obvious from the second site how to get to the actual paper. I think this is fair to say there are ways that attempt to be objective in defining what is fair licensing cost, but I'd have liked to see one of these methods explicitly mentioned in the license so as to not have this question left open as a landmine.
  - kemitchell 5y ago
    FRAND isn't a definition. As far as I'm aware, it didn't even really begin as a concept from statute. It's a kind of catchphrase lawyers reuse in policies, bylaws, contracts, and other terms. The courts help to develop expectations about how it will play out in practice by rendering decisions. But those decisions are inevitably contextual. In the end, it's an interpretation question. What do the words mean? The words to interpret are "fair", "reasonable", and "nondiscriminatory". If it's good enough for patent policies between multinational Fortune 500s...
nbadg 5y ago
Kyle's a fried of mine, so I may be a bit biased. But I'm very sympathetic to this kind of license, and fairness is really hard to define, especially in advance. He's actually written separately [1] about exactly how difficult it is. If you really want to have a concrete definition of fairness, you're ultimately going to need to hire a lawyer to make a specific license. That could simply be an add-on clause to this license that explicitly defines "fair" as a term, and I think that's exactly the kind of plug-and-play license language that Kyle has done some work on in other projects. That all being said, Kyle is generally very welcoming of (respectful!) feedback, and I think given how much time he's spent thinking about how exactly one can define "fairness", he might enjoy some fresh thoughts about it. [1] https://writing.kemitchell.com/2019/12/02/Correct-Intuitive-Fairness.html https://writing.kemitchell.com/2019/12/02/Correct-Intuitive-...
jameshart 5y ago
There’s some self contradiction right there since by adopting this license the licensor is explicitly advertising a generally available commercial license for companies making < $1m priced at $0.00. So if you can point to a few businesses who are benefitting from those commercial license terms, you might be well within your rights to consider any license asking you to pay much more than that ‘unreasonable’.
kemitchell 5y ago
"Fair" is the first part of "fair, reasonable, and nondiscriminatory", or "FRAND", a stock phrase lawyers reuse especially in policies about how companies contributing to standard setting will license any of their patents they manage to get into the standards. We have seen litigation about what FRAND means in context. You can read all about that on Wikipedia. But business has not stood still waiting on courts---or draftsmen---for perfect clarity. That's not how law works. Big Time's definition of "fair commercial license" will matter most as read by two groups: 1. small companies using for free who wonder whether they'll get gouged by the developer when when they grow up 2. big companies who find the software and realize they have to do a deal The definitions would start attracting strong legal attention if and only if the company reaches out to the developer, does hear back with a proposal, but can't negotiate from there to a deal. Compared to what we usually see with FRAND, Big Time does a lot extra to add clarity. It's not just vague principles about bundling and pricing, which we sometimes see from court decisions about FRAND. Big Time specifically addresses perpetual versus time-limited, with or without updates. It also adds the price-paid shortcut, which can collapse "fair" down to "what other customers are paying"---rack rate---with a very objective standard of evidence.
- rolleiflex 5y ago
  Hi Kyle, thanks for responding to criticism. I think you might have slightly misunderstood my main objection and comment. Your machinery is all fine and well but it requires negotiation, murky legal definitions (even if it is clearer than the usual FRAND clauses) that potentially need an adversarial process to resolve. As an open-source developer, I do not want to sue people. When I mean holes in your license, I do not mean actual loopholes, I mean soft, bruised spots in the flesh that a skilled lawyer (which any company qualifying for the big company section of this license will have) can softly press to incur excruciating pain. I understand that you are a lawyer thus are much more comfortable with ambiguity and with the legal process, I am not — and I suspect many of us OSS devs are not either. I cannot talk for the developer ecosystem, but I can talk as myself, as a potential customer of your license and the primary person bringing value to the table as the developer of the aforesaid software: I value clarity — any sort of discovery process where I have to hire a lawyer and work through what is fair because the license did not define it well is just such a nonstarter I don't know what else to say.

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/

rolleiflex 5y ago
FRAND defines fair in a very specific way in terms of pricing. For example the definition of F (fair) in FRAND is exemplified as not requiring purchase of other, unwanted licenses as a condition to the purchase of the particular license the customer wants to buy. However that does not exactly seem to be the use in this license because here it seems like fair would also carry the meaning of 'not too expensive', as I interpret the author's explanation: > ' 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.' 'Too expensive' far as I know is not a part of FRAND, the fair in FRAND means something that is subtly different — though I am not knowledgeable enough to conclusively say FRAND includes this author's particular meaning of fair. To my best reading, it seems like it does not.
- AlexCoventry 5y ago
  The second link I gave is explicitly about fair royalties, though.
  - rolleiflex 5y ago
    Ah, my apologies, it wasn't obvious from the second site how to get to the actual paper. I think this is fair to say there are ways that attempt to be objective in defining what is fair licensing cost, but I'd have liked to see one of these methods explicitly mentioned in the license so as to not have this question left open as a landmine.
- kemitchell 5y ago
  FRAND isn't a definition. As far as I'm aware, it didn't even really begin as a concept from statute. It's a kind of catchphrase lawyers reuse in policies, bylaws, contracts, and other terms. The courts help to develop expectations about how it will play out in practice by rendering decisions. But those decisions are inevitably contextual. In the end, it's an interpretation question. What do the words mean? The words to interpret are "fair", "reasonable", and "nondiscriminatory". If it's good enough for patent policies between multinational Fortune 500s...

nbadg 5y ago

Kyle's a fried of mine, so I may be a bit biased. But I'm very sympathetic to this kind of license, and fairness is really hard to define, especially in advance. He's actually written separately [1] about exactly how difficult it is. If you really want to have a concrete definition of fairness, you're ultimately going to need to hire a lawyer to make a specific license. That could simply be an add-on clause to this license that explicitly defines "fair" as a term, and I think that's exactly the kind of plug-and-play license language that Kyle has done some work on in other projects. That all being said, Kyle is generally very welcoming of (respectful!) feedback, and I think given how much time he's spent thinking about how exactly one can define "fairness", he might enjoy some fresh thoughts about it. [1] https://writing.kemitchell.com/2019/12/02/Correct-Intuitive-Fairness.html https://writing.kemitchell.com/2019/12/02/Correct-Intuitive-...

jameshart 5y ago

There’s some self contradiction right there since by adopting this license the licensor is explicitly advertising a generally available commercial license for companies making < $1m priced at $0.00. So if you can point to a few businesses who are benefitting from those commercial license terms, you might be well within your rights to consider any license asking you to pay much more than that ‘unreasonable’.

kemitchell 5y ago

"Fair" is the first part of "fair, reasonable, and nondiscriminatory", or "FRAND", a stock phrase lawyers reuse especially in policies about how companies contributing to standard setting will license any of their patents they manage to get into the standards. We have seen litigation about what FRAND means in context. You can read all about that on Wikipedia. But business has not stood still waiting on courts---or draftsmen---for perfect clarity. That's not how law works. Big Time's definition of "fair commercial license" will matter most as read by two groups: 1. small companies using for free who wonder whether they'll get gouged by the developer when when they grow up 2. big companies who find the software and realize they have to do a deal The definitions would start attracting strong legal attention if and only if the company reaches out to the developer, does hear back with a proposal, but can't negotiate from there to a deal. Compared to what we usually see with FRAND, Big Time does a lot extra to add clarity. It's not just vague principles about bundling and pricing, which we sometimes see from court decisions about FRAND. Big Time specifically addresses perpetual versus time-limited, with or without updates. It also adds the price-paid shortcut, which can collapse "fair" down to "what other customers are paying"---rack rate---with a very objective standard of evidence.

rolleiflex 5y ago
Hi Kyle, thanks for responding to criticism. I think you might have slightly misunderstood my main objection and comment. Your machinery is all fine and well but it requires negotiation, murky legal definitions (even if it is clearer than the usual FRAND clauses) that potentially need an adversarial process to resolve. As an open-source developer, I do not want to sue people. When I mean holes in your license, I do not mean actual loopholes, I mean soft, bruised spots in the flesh that a skilled lawyer (which any company qualifying for the big company section of this license will have) can softly press to incur excruciating pain. I understand that you are a lawyer thus are much more comfortable with ambiguity and with the legal process, I am not — and I suspect many of us OSS devs are not either. I cannot talk for the developer ecosystem, but I can talk as myself, as a potential customer of your license and the primary person bringing value to the table as the developer of the aforesaid software: I value clarity — any sort of discovery process where I have to hire a lawyer and work through what is fair because the license did not define it well is just such a nonstarter I don't know what else to say.