Language is vague and dangerous to licensees - Prevents Adoption
enzotar opened this issue · 4 comments
“the License does not grant to you, the right to Sell the Software ...'Sell' means...provide to third parties, for a fee or other consideration... a product or service whose value derives, entirely or substantially, from the functionality of the Software."
How do you define "substantially"? This vaguesness creates a loop hole a licensor can exploit, demanding compensation from a licensee, by arguing on the "substantially" key word. And therefore, no company with the right legal team or understanding of this issue will support a technology be adopted that includes a Common Clause.
One example of this is evident on Dgraph's forum, where people are expressing their unwillingness to use the software due to this clause: https://discuss.dgraph.io/t/switching-dgraph-to-a-liberal-license-dgraph-blog/2411/29
If you read the FAQ, it explains that substantial is a 'common' contract key word. It basically means the whole(or close to the whole), plus or minus some slight changes.
You cannot base your understanding on a FAQ they have drafted. Of course they want to sell you on the idea so they'll write "common contract keyword..." But that's not how law works.
This language is drafted in favor of the licensor. The vagueness allows the licensor to redefine what "substantial" means on a case-by-case basis. Case in point, in your reply you cannot exactly define what "substantial" means, how much plus or minus the whole, which provides a loophole for the licensor. And a good attorney can use precedents to argue the definition of substantial, and for instance could prove that a database software, e.g. Dgraph, provided with a Common Clause license in your SAAS (not a database-as-a-service) constitutes "substantial" use.
So as a licensee, if your application becomes popular, and the Common Clause software is only let's say 5% of your whole, but an essential layer, one which cannot be bypassed, then you are at risk - because that could also constitute "substantial." There is no certainty for the licensee with Common Clause as it is written.
For Common Clause to work, it must be specific in the language and not provide the licensor loopholes.
Would you accept a job if the salary was substantial plus or minus some change or do you want an exact number?
Great News: Dgraph.io has reverted to an Apache 2.0 license.
A key factor in the decision seemed to be Google's clarification on the Common Clause
https://opensource.google.com/docs/thirdparty/licenses/#commons-clause-not-allowed
The Commons Clause prohibits any commercial use of the software. As with the above, everything that Google undertakes is a commercial endeavor, so no code released under any license that includes the Common Clause may be used at Google.
As stated above: the FAQs are misleading (and I'd not speculate if it is for a reason to push the license forward).
In the text:
Can you offer that application as SaaS and charge for it? Yes.
and later:
making the Commons Clause licensed product available via SaaS -- would be restricted.
Interesting is that the FAQs were probably drafted by the lawyer and it probably was not a mistake but a strategy, exactly how @enzotar wrote.