[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.