[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...