[_acco]

AFAIK, the reason for these changes is basically "prevent AWS from eating our business". Is that right?

If so, are these trends harmful to open source? Are we not choosing between:

1. A world where all revenue in OSS infrastructure ultimately flows to a few big platform companies.

2. A world where these carve-outs are commonplace.

Meta's carve-out with Llama is so interesting because it practically calls the big companies out by name. Should there be a similar standard license for open source infrastructure?

[girvo]

> Should there be a similar standard license for open source infrastructure?

Yes, I think there should be. The tech world is basically a monopoly at this point, and that's dangerous for a thousand reasons. The least those monopoly owners can do is financially contribute if they want to use these tools.

It's sad to me that the tech world is rallying around Valkey, which is Big Tech's fork: AWS et al are the ones behind it. We continue to give more and more power to the biggest players.

[gpderetta]

Affero GPL-style copyleft licenses are an option, although they are treated as radioactive by most companies. A clause that triggers the extensions over GPL only for companies beyond a certain size might make them more platable.

[eudoxus]

> although they are treated as radioactive by most companies

Isn't this reason enough to not consider it an option?

[hnfong]

AFAIK, the main issue of the GPL family of licenses is that they are rather poorly drafted. The GNU project has great evangelists but ideological-minded people make bad lawyers. Their licenses are long winded and hard to interpret, and often make assumptions about unsettled bits of copyright law. Their legal theories (eg. "GPL is not a contract") have been rejected by courts.

In short, if you're a company wanting to use some AGPL-like license, you'd probably want to use a license that's better drafted over the original AGPL.

[gavindean90]

Can you link some info on the portion about contracts having been rejected by the courts? I’m having trouble finding specifics on that myself.

[tzs]

I'm not sure it even matters.

If it gets to court you've got a plaintiff either claiming that defendant violated copyright or the defendant failed to follow the terms of GPL.

In both cases the defendant will respond that they followed the terms of GPL.

In both cases the court has to determine what the license means and then whether or not defendant followed the terms of the GPL. To do that the court has to decide what those terms actually mean.

For that I don't think it matters if GPL is considered to be a "contract" or "license" because as far as I have been able to tell the rules of interpretation are the same no matter how you characterize the document.

Maybe it could make a difference in the remedies that are available if plaintiff wins. If it is seen as not being a contract then it might be that the only remedies would be those under copyright law. Those would generally be an injunction ordering defendant to stop infringing and monetary damages. Actual monetary damages would be near zero so plaintiff would probably ask for statutory damages.

If it is seen as being a contract then potentially the remedy could include an order that the defendant release their source code. If the GPL infringement was distributing binaries without making source available this would probably be the remedy plaintiff wants.

Ordering the defendant to obey the terms of the contract is called "specific performance" and I believe is usually disfavored by courts if monetary damages are sufficient but since infringing GPL generally doesn't cause any monetary losses to the copyright owner and the whole point of the contract was to make source available I'd expect a decent chance plaintiff could get specific performance.

Note that this means that it is actually better for GPL to be seen as a contract.

[hnfong]

TBH I don't know why the FSF had been pushing for this 'not a contract' narrative for so long either.

Maybe bad lawyering. Or some aversion to anything that looks like an EULA or that kind of radical-ideological shit.

PS: I found this link when digging in my archives:

https://www.technollama.co.uk/us-court-declares-gpl-is-a-con...

That the GPL is a contract hardly came as any surprise to people familiar with the law. Lawyers and judges view any collection of terms as a contract, and tear-open licenses are the norm these days. But the FSF had its own reasons to say it’s a license, reasons that might be more important to the philosophy of Free Software than the court. Contracts require consent between two parties who join in the contract, if they are to be enforced. The GPL (and many other licenses that come with products) doesn’t have a signature page, so there is no explicit consent. If there is consent at all, it’s the implied consent that has become standard for “tear-open” licenses. Your acceptance of the license is indicated by some action, in this case integrating the code into your product. The default under copyright law is all rights reserved, which means “you can’t do anything with this” with some minor exceptions that are called “fair use”. Thus, if you integrate the software into your product, distribute it, or perform some other action that is restricted by copyright, you must have accepted the license because your alternative would be all rights reserved. Thus, the FSF asserts that the GPL is a license because they feel consent isn’t really necessary, they don’t want to argue about consent in court, and they believe that they can do all of the enforcement they need using a complaint of copyright infringement. Also, tear-open licenses were a much more foggy issue in law when the GPL came about. And then there’s the philosophical matter:

[pabs3]

Some of this is being tested in court right now.

https://sfconservancy.org/copyleft-compliance/vizio.html

[gpderetta]

Historically collecting damages were not the goal of GPL enforcement. Specific performance, or stop infringement by no longer distributing the software were the remedies. The latter is not always an option for the infringing party, and that's what submits them into compliance.

[hnfong]

I didn't say contracts being rejected by the courts.

I said the FSF had a legal theory that "GPL is a license, not a contract", which was rejected by the courts.

Some reading: https://www.technollama.co.uk/us-court-declares-gpl-is-a-con...

Further cases: https://news.ycombinator.com/item?id=24478769

[pabs3]

The SFC think the GPL is a contract (as well as a license), and that is being tested in court at the moment:

https://sfconservancy.org/copyleft-compliance/vizio.html

[madeofpalk]

Being radioactive is the reason why it is considered an option.

[Sloowms]

I think it comes down to the initial choice to make something open source. At that point you're well aware that big companies might use your code and profit more than you ever will. If you don't want that, don't open source and they will never use your code.

It's having your cake and eating it when you get popular by being open source and then add restrictions when you have success.

I think there should be a change to licenses where the trademark is tied to the license. You can go proprietary but you can't take back the name.

[Towaway69]

What is wrong with a non-commercial open source license for those that want to use your software for personal use and a paided up commercial license (something like Business Source License[1]) for the big tech corporations of the world?

How much open source software is being incorporated into closed source software and then being resold back to the original open source developers - to get an idea, check the licenses on a Apple phone (Settings -> General -> Legal & Regulatory -> Legal Notices)[2]. It's the who's who of open source licenses! I wonder how much Apple has contributed to those projects? Perhaps each FOSS developer mentioned there should receive - at least - a free iPhone ...

The argument of "social contract" or "moral rights" or whatever else a FOSS developer faces when changing their license to something that prevents BigTech making money off their work is unfair and unnecessary. Its their work, their choice. Just as politicians aren't held to the promises they made yesterday, so too are FOSS developers human and can change their direction/mind and license.

In addition to this, many have vested interests in these companies continuing their use of "free" (in the sense of money) software since they are themselves shareholders or employees. License fees effect the bottom line of those corporations. Imagine AWS paying a license fee for their Linux boxes ...

A corporation also has a "social contract" to fulfil, yet its the FOSS developer that needs to fulfil theirs first. Or perhaps a corporation only faces "legal contract" and for the sake of profit, a "social contract" isn't applicable to a corporation. In which case, neither should a "social contract" be applicable to a FOSS developer - when dealing with corporations.

[1] https://mariadb.com/bsl11/

[2] can also be viewed online --> https://gist.github.com/gorenje/a775f44bb9307852911f7f353466...