why is taking open-source code closed expensive?

[Joseph Hick]

from
http://www.catb.org/~esr/Licensing-HOWTO.html#id2790430

"What keeps most projects open-source isn't the threat
of lawsuit, it's that taking open-source code closed
is an expensive way to lose lots of money as your
handful of salaried in-house developers tries to keep
up with a much larger pool of open-source
contributors."

i didn't understand why taking open-source code and
keeping it closed is expensive?

"Are copyleft licenses enforceable? We believe they
are, but there hasn't been a court test yet. There are
some promising precedents in case law pertaining to
shrink-wrap licenses"

if we are not sure that licenses like GPL v3 are
enforceable under law then how do so many programmers
take the risk of releasing their project under GPL
v3.? :-O





       
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[Rick Moen]

Quoting Joseph Hick (leet16y@...):

> from http://www.catb.org/~esr/Licensing-HOWTO.html#id2790430

> i didn't understand why taking open-source code and keeping it closed
> is expensive?

The canonical answer, before they collapsed and were bought up by Wind
River, used to be "Ask BSDi."  ;->  

If you fork an open-source codebase and maintain your fork separately as
proprietary code, you are cutting yourself off from most of the benefit
of the collaborative, open development process.  Costs of coding and QA
rise, accordingly.

> "Are copyleft licenses enforceable? We believe they are, but there
> hasn't been a court test yet. There are some promising precedents in
> case law pertaining to shrink-wrap licenses"
>
> if we are not sure that licenses like GPL v3 are enforceable under law
> then how do so many programmers take the risk of releasing their
> project under GPL v3.? :-O

There wasn't caselaw about copyleft licence enforceability when that
HOWTO draft was released, but there has been in the interval.

(I'm guessing you meant to say "GPLv2", above.  GPLv3 being only days
old, the amount of software under it specifically so far is necessarily
modest.)

[Ian Lance Taylor]

Joseph Hick <leet16y@...> writes:

> from
> http://www.catb.org/~esr/Licensing-HOWTO.html#id2790430
>
> "What keeps most projects open-source isn't the threat
> of lawsuit, it's that taking open-source code closed
> is an expensive way to lose lots of money as your
> handful of salaried in-house developers tries to keep
> up with a much larger pool of open-source
> contributors."
>
> i didn't understand why taking open-source code and
> keeping it closed is expensive?

The argument is that you will be shrinking the developer pool, and
will no longer be taking advantage of development which you don't have
to pay for.

The reality is quite a bit more complex than that.  Sometimes it will
make sense to make a private fork, sometimes it won't.  It depends on
the extent to which outside development is focused on the issues you
care about, and on whether you can continue to take advantage of
outside development, and on how many outside developers there are, and
on who is working for you, and on how you plan to release the
software.

> "Are copyleft licenses enforceable? We believe they
> are, but there hasn't been a court test yet. There are
> some promising precedents in case law pertaining to
> shrink-wrap licenses"
>
> if we are not sure that licenses like GPL v3 are
> enforceable under law then how do so many programmers
> take the risk of releasing their project under GPL
> v3.? :-O

What's the risk?  What's the worst that could happen?  What should
they do instead?

Ian

[John Cowan]

Joseph Hick scripsit:

> if we are not sure that licenses like GPL v3 are
> enforceable under law then how do so many programmers
> take the risk of releasing their project under GPL
> v3.? :-O

In the specific case of the GPL (any version), if you find
yourself being sued for infringement by the copyright holder,
the last thing you want to do in court (as opposed to in
the court of public opinion) is to attack the validity of the
GPL, for without the GPL you have no copyright-related rights
over the software at all.  No, you want to claim that you
innocently or unknowingly infringed, or that your behavior
is licit under the GPL after all, even though the copyright
owner claims it's not.

I am not a lawyer; this is not legal advice.

--
John Cowan  cowan@...  http://ccil.org/~cowan
Linguistics is arguably the most hotly contested property in the academic
realm. It is soaked with the blood of poets, theologians, philosophers,
philologists, psychologists, biologists and neurologists, along with
whatever blood can be got out of grammarians. - Russ Rymer

[Joseph Hick]

> > "Are copyleft licenses enforceable? We believe
> they
> > are, but there hasn't been a court test yet. There
> are
> > some promising precedents in case law pertaining
> to
> > shrink-wrap licenses"
> >
> > if we are not sure that licenses like GPL v3 are
> > enforceable under law then how do so many
> programmers
> > take the risk of releasing their project under GPL
> > v3.? :-O
>
> What's the risk?  What's the worst that could
> happen?  What should
> they do instead?
>
> Ian
>

the worst that can happen is that some company would
take the software, modify it, close the source and
sell it as a product.

i would want to use a license that can be proved to be
valid in court and can save my open source product.


       
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[Danese Cooper]

>
> the worst that can happen is that some company would
> take the software, modify it, close the source and
> sell it as a product.

Okay, you're answer puts you on the "Copyleft" side of things.  There  
is another school of thought in Open Source (which I'll call Copy  
Center after McKusick) that says the best thing that can happen is  
that people actually USE your code and so proprietizing is both  
allowed and encouraged.  IBM's WebSphere project is an example (it's  
Apache webserver, plus some extra stuff...and it costs a lot of  
dough).  This strategy has allowed Apache to achieve an installed  
base of around 65% of the total internet, so it does have some  
merit.  Depends on what your feelings about your project are,  
ultimately.  You are completely within your rights as a developer to  
choose to license in such a way that proprietization isn't legal for  
your code.

>
> i would want to use a license that can be proved to be
> valid in court and can save my open source product.

Don't we all want this?  Unless you're ready to shell out for the  
lawsuit, could take some time.  GPLv2 has been upheld in some courts  
in Germany.  GPLv3 is too new to have been proven, but it was written  
with more documented intent than any license in software history so  
if we do ever get to a lawsuit there's plenty of clarity about what  
the language means.

>
>
>
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[Ian Lance Taylor]

Joseph Hick <leet16y@...> writes:

> > > if we are not sure that licenses like GPL v3 are
> > > enforceable under law then how do so many
> > programmers
> > > take the risk of releasing their project under GPL
> > > v3.? :-O
> >
> > What's the risk?  What's the worst that could
> > happen?  What should
> > they do instead?
> >
> > Ian
> >
>
> the worst that can happen is that some company would
> take the software, modify it, close the source and
> sell it as a product.
>
> i would want to use a license that can be proved to be
> valid in court and can save my open source product.

There is no such license for open source software.  I don't think it
is logically possible to create such a license, until and unless some
copyleft license is tested in court (and of course even that would
only show validity within the jurisdiction of that court).  The only
way you can be reasonably confident that a license would hold up in
court would be to sign a contract with each person who distributes the
software.  But if you require such a contract, then you don't have
open source software anyhow.

Actually, I suppose there is another way to be reasonably confident:
pass a law, and then make agreement with that law part of the WIPO
treaty obligations.  That is not logically impossible, though I
haven't heard of anybody actually trying to get it done, and I would
rate the chances of success to be quite low.

Ian

[David Woolley (E.L)]

Joseph Hick wrote:

> i would want to use a license that can be proved to be
> valid in court and can save my open source product.

I doubt that is achievable with a licence.  I think you will need a
contract (commercial software licence *agreements* are really contracts).

As shrink wrap contracts are a grey area, you will need to get paid by
every user, so as to establish the "consideration" element of the
contract (or, in the UK, I believe you can get the agreement signed in
front of a witness, as a deed).

The payment will make OSI approval impossible.

IANAL TINLA

--
David Woolley
Emails are not formal business letters, whatever businesses may want.
RFC1855 says there should be an address here, but, in a world of spam,
that is no longer good advice, as archive address hiding may not work.

[Matthew Flaschen]

David Woolley wrote:
> Joseph Hick wrote:
>
>> i would want to use a license that can be proved to be
>> valid in court and can save my open source product.
>
> I doubt that is achievable with a licence.  I think you will need a
> contract (commercial software licence *agreements* are really contracts).

The Academic Free License (http://opensource.org/licenses/academic.php)
and Open Software License
(http://www.opensource.org/licenses/osl-3.0.php) attempt to benefit from
the better enforceability of contracts while still complying with the
OSD; they have a semi-optional "express assent" clause.

Matthew Flaschen

[David Woolley (E.L)]

Matthew Flaschen wrote:

> The Academic Free License (http://opensource.org/licenses/academic.php)
> and Open Software License
> (http://www.opensource.org/licenses/osl-3.0.php) attempt to benefit from
> the better enforceability of contracts while still complying with the
> OSD; they have a semi-optional "express assent" clause.

The key issue that I saw problems with was consideration.  Without
physical payment, one is left with an argument based on the value to the
author of the limitations imposed by the licence.

--
David Woolley
Emails are not formal business letters, whatever businesses may want.
RFC1855 says there should be an address here, but, in a world of spam,
that is no longer good advice, as archive address hiding may not work.

[Michael Tiemann]

Joseph Hick wrote:

> from
> http://www.catb.org/~esr/Licensing-HOWTO.html#id2790430
>
> "What keeps most projects open-source isn't the threat
> of lawsuit, it's that taking open-source code closed
> is an expensive way to lose lots of money as your
> handful of salaried in-house developers tries to keep
> up with a much larger pool of open-source
> contributors."
>
> i didn't understand why taking open-source code and
> keeping it closed is expensive?
>  

For the same reason it is expensive for a farmer to take all their
plants inside their own closed house.  Unlike the natural environment
which can provide sunlight, water, bees, and every other thing needed by
plants, the closed-house farmer must manufacture their own sunlight,
import their own water, design their own mechanical pollenators, etc.  
Open source developers function very much like the natural energies that
farmers take for granted, and closed-source developers function like
gears in an industrial machine--a machine which must be designed, built,
paid for, and maintained, all at the owner/operator's expense.

> "Are copyleft licenses enforceable? We believe they
> are, but there hasn't been a court test yet. There are
> some promising precedents in case law pertaining to
> shrink-wrap licenses"
>
> if we are not sure that licenses like GPL v3 are
> enforceable under law then how do so many programmers
> take the risk of releasing their project under GPL
> v3.? :-O
>  

Those questions are completely irrelevant to your first question.  Those
questions represent the classic FUD arguments that were prevalent around
1999.  They are now obsoleted by experience.

M