People say lawyers are assholes, but they don't think about why lawyers are assholes.
It's a lawyer's job to imagine the worst future outcomes and guard against them in the present.
Everybody focuses on "It's crazy you put that clause in there that was never needed," but few folks appreciate "Thank god we included that clause just in case."
Which isn't to opine there's a right or wrong, only multiple parties each negotiating (skillfully or poorly) in their own interests.
If you're a developer and don't want your code to slide into corporate controlled ownership... well, there are licenses for that.
I think every single one of my attorneys over the years has made it clear that if something is in the contract/license/etc, you absolutely have to assume it will be enforced, to the letter. No matter how stupid, no matter how unlikely. If it's written down, it was written down for a reason.
One of the worst mistakes you can make in life is believing anyone who says things like "oh, that's just boilerplate...we'd never act on it" or "don't worry, we would never enforce that" or similar. That's someone who is deliberately setting you up to get screwed.
Indeed. My mental rule of thumb is to assume that if we're at the point of a legal argument then bridges have already been burned and neither party is inclined to do any favors to the other. Ergo, the legal language is the only language that one can depend on.
Not necessarily. I recently reviewed a french work contract that included weird clauses. But after looking at the case law, it turns out they are illegal and thus void anyway if taken to court. In that case, there is no need to spend energy trying to get them removed: this may backfire and push the other party to write a new legal version that actually screws you. Sometimes it's best to accept a weird clause that you know will not hold up in court.
Wrong. Putting you in the situation where you have to go to court to defend yourself from an illegal clause is screwing you. And the assumption that just because one court say "that's wrong" automatically means the one your litigating in will too is comically bad.
The legal system isn't a computer that has deterministic outputs.
I don't know which country you're in, but in France we have quite strict rules as to how some clauses must be structured in a work contract to be valid.
For instance an non compete clause which is not limited to a certain geographic area is invalid, period. Yet some companies apparently don't know this. They copy paste boilerplate which doesn't hold up in court.
And no court can rule against this as the supreme court has already decided what makes a non compete clause valid and it is very precise in the requirements.
As a rough analogy that my lawyer told me early on, lawyers are like software engineers, and the law is like the operating system. A good lawyer writes robust "code" designed to deal with edge cases and unexpected conditions gracefully.
I think what we're seeing is people want something in between. It's hard to codify social norms. Many devs I know don't want to deal with the additional work that a partial GPL ecosystem involve. Most don't even care that changes to their code are published. On the whole, they want others to be able to do what they want with the source. What they don't want is the project to be co-opted or to be put out of business by a service provider that's leveraging their presence elsewhere (e.g., an entrenched cloud provider adding a competing SaaS option).
AGPL is possibly the only one that could guard against the latter, but it brings with it other limitations the author may not want. It almost certainly cuts down on the pool of contributors. While it fixes one problem, it creates others.
I think the fundamental problem is that open source licenses apply equally to everyone and really only govern what you can do with source modifications. The proposed solutions seem to be of the form "make it onerous to use and sell commercial licenses on the side." But, I don't think that's really what many people want. For one, it changes the business model. Moreover, they don't want something that restrictive for most parties. It's just that "don't bite the hand that feeds" is hard to codify.
At the core of it, these folks want something that functions like open source for the majority case but affords protection in the extreme. It has little to do with the ideals of software freedom. For better or worse, the BSL attempts to address that problem.
I think we largely overestimate how much the average person even cares about open source. I can only speak to my own experiences, but most devs I know haven't even read the major open source licenses. And that extends to how they consume source. Plenty of them take code from public repos without any declared license. They crib answers from Stack Overflow without attribution. They never check the licenses of their full dependency graph. Unless the legal team requires explicit approval of adoption of new open source projects, they don't go through that exercise. What they want is something they don't have to pay for that they can easily modify; open source happens to satisfy that problem.
It'll be interesting to see how this plays out. I'm not sure the BSL will clear legal approval at many companies. So, the companies using the license may find it's not any more advantageous than GPL. After all, if devs can't use your software, you haven't really gained anything. But, I'm curious to see how this all plays out. It's the first concerted attempt at solving a problem that open source licenses don't solve in a satisfactory way for many of us.
The AGPL doesn't prevent Amazon from competing with you if they wanted to (although they don't yet). There was an AWS employee just the other day saying that the AGPL isn't very hard to comply with. I'm sure that they could do that if they wanted and probably will do at some point.
Fair enough. I'm sure Amazon has a legal team that's examined this far deeper than I have. If that's the case, it furthers my belief that GPL-like licenses aren't really providing what many are after.
Yeah, what many are after is proprietary licenses, not open source ones. Any license that prevents the competition Hashicorp and others don't like just isn't an open source (as originally defined) license. As Drew Devault wrote, open source means surrendering your monopoly over commercial exploitation.
There is just one underfunded organisation doing GPL enforcement, so adjust that picture to a worried cat holding just one butter knife and it might be more accurate. Hopefully their lawsuit against Vizio will mean user of GPLed binaries can sue for source code. So adjust the picture to roaming herds of cats with butter knives perhaps.
It's a lawyer's job to imagine the worst future outcomes and guard against them in the present.
Everybody focuses on "It's crazy you put that clause in there that was never needed," but few folks appreciate "Thank god we included that clause just in case."
Which isn't to opine there's a right or wrong, only multiple parties each negotiating (skillfully or poorly) in their own interests.
If you're a developer and don't want your code to slide into corporate controlled ownership... well, there are licenses for that.
https://github.com/readme/guides/open-source-licensing
https://arstechnica.com/gadgets/2020/02/how-to-choose-an-ope...