[rolleiflex]

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.

[kemitchell]

"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]

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.

[kemitchell]

Thank you for following up.

If you consider negotiating commercial terms an undesirably adversarial process, I completely understand needing to stick to, say, permissive open terms. There's plenty of murk even in the popular permissive licenses these days. I've written on them in MIT, BSD, Apache, and the GPLs. But those issues are largely ignored by small-shop and solo maintainers, because in their minds, the point is making clear there isn't anything to enforce in the first place. Many choose licenses with attribution requirements and simply don't enforce those, either.

You mentioned not wanting to sue people. I can assure that you the vast majority of fully closed-proprietary software companies don't want to sue anyone, either. It's costly, time-consuming, and hardly their specialty. Which is also why, the vast majority of time they have an issue with a customer or would-be customer, it's handled between business people, as a negotiation, rather than by immediately calling in thousands of dollars worth of litigators. Some fear or lawyers is definitely justified. But please don't overestimate how much of all the "legal work" out there lawyers actually do. Self-help is the most popular kind.

On the user side, I was saddened to read your comment. We've done a lot of work on Big Time to make it a whole lot more readable for people who aren't lawyers than even terms like Apache 2 or MPLv2. But the issue here is what Big Time says that's new, not whether it expresses familiar terms more clearly.

As for "nonstarter", I'd stress that the whole defined concept of "fair commercial license" only matters in the case where you are or become a big company. I hope you'll agree that threshold is more "objective": revenue, headcount, and finance thresholds. The consequence of exceeding one of those limits is that you have to negotiate a separate commercial license.

So if there's unpredictability in "fair commercial license" as defined, it bruises only the clear obligation of the developer to offer commercial licenses and negotiate, without gouging. Using roughly the same terms---FRAND terms---that huge corporations accept from other huge corporations when engaged in standard setting. We could have taken another tack, also commonly found in contracts, of requiring the developer to negotiate "in good faith", "reasonably", or both. But that would arguably offer less predictability, if you guess how a court would rule, than the developing FRAND concept.

[AlexCoventry]

> 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-discriminat...

[1] "Formulas for fair, reasonable and non-discriminatory royalty determination" https://mpra.ub.uni-muenchen.de/8569/

[rolleiflex]

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.

[kemitchell]

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...

[rolleiflex]

I understand, however, consider that being good for patent policies between multinational Fortune 500s does not in any way imply that it is good for anything else. In the case of two F500s with their respective lawyer armies, they are evenly matched, they're equals. Thus a licence can work even if murky because either side can make it very painful for the other to make it not work. It's a repeated prisoner's dilemma case.

For me, as the creator of the hypothetical software in question, I am vastly, vastly disadvantaged — not only am I not a lawyer, I do not want to hire one because if I hired one for every sale I would end up bankrupt. Not only that, it is possible that the software the big company uses might be the last one they would ever get from me, if they so choose, so they have no incentive to play nice.

I probably do not need to quote you the Athenians response to the Melians, you get the idea. I would recommend, if you like to get any real adoption of your licenses with the developer community, to think more like the Melians and less like the Athenians.

[kemitchell]

Appreciate your conversation!

I see and appreciate your anxiety about lawyers---their cost, the pain they exact, the helpless feeling that comes from handing over fate and control to an alien professional. But I also think you vastly underestimate how much non-lawyers can and do for themselves. Just because a dispute relates to a license, and license is a law thing, does not mean that everyone has to hire lawyers. Not hardly. No more so than most debates about open license compliance or terms of service violations entail crease-and-desist letters amongst JDs. It's part of why it's so important to write licenses in language people who aren't lawyers can feel comfortable reading. (And criticizing!)

I find it really hard to imagine a developer or small company using Big Time hiring a lawyer for every sale. That isn't the case for companies that "sell exceptions" to noncommercial or copyleft terms, and I don't think it would be the case with Big Time terms. Lawyers often are involved in license negotiations, which Big Time requires in some cases. But companies starting out regularly do all their own procurement. I've published several guides and forms that solo and small-shop developers have used to make sales on their own. You don't need a license from the state to negotiate your own software deals.

I also rather doubt that the average firm choosing to release its software under Big Time would be a Fortune 500 Goliath with a phalanx of lawyers. If you see the legal landscape as unavoidably Goliath wins, David loses, I suppose all four permutation are plausible: big licensor small customer, small licensor big customer, and so on. But even when you are small and they are big, consider the amount of effort large companies put into complying with open software license terms. If small-fry open software maintainers had zero leverage, big firms wouldn't bother, and they'd get away with it. We see the opposite: the bigger they are, the more likely they are to have people and process for compliance. It can't just be down to the size of the fighter...

[AlexCoventry]

The second link I gave is explicitly about fair royalties, though.

[rolleiflex]

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.

[nbadg]

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-...

[jameshart]

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’.