So, the current draft says this:
If I distribute a Covered Work under a Proprietary License, then the
licenses I grant You under section 1 are no longer subject to the
conditions in sections 2 and 3. "Proprietary License" means a license
which (i) is not royalty-free, (ii) does not permit distribution, (iii)
does not permit preparation of derivative works, (iv) limits the number of
licensed users or copies, and/or (iv) contains field-of-use restrictions.
I've often called this one of the most interesting, novel, and ingenious
features that Fontana has promulgated in copyleft-next. Admittedly, as some
of you probably recall from various ancient HBR cures, I lobbied Fontana
pretty hard 5-7 years ago for a solution to proprietary relicensing, so I
suppose he felt pressure to come up with something. I am glad my persistent
complaining brought a great copyleft clause into existence. ;)
Anyway, I have been studying this clause lately and I think it has a bug.
Here's the loophole scenario I can think of:
* Proprietary Relicensing Vendor ("Vendor") sets up a usual proprietary
relicensing "prep system" (i.e., CLAs giving them full powers to
relicense etc), and makes their outbound license copyleft-next.
* Optional, but "helpful" to Vendor's cause: Vendor also takes
technological measures in the software that make it difficult to get to a
full CCS situation (i.e., the stuff is hard to build, or whatever).
* Vendor finds Downstream in violation of copyleft-next, and Downstream
cannot comply within 30 days, either because Vendor "set them up", or
just mundane confusion about copyleft compliance.
And, here's the key part:
* Vendor offers Downstream not a *Proprietary* License, but a permissive
FOSS license for a fee (say, 2-Clause-BSD).
* Optional: Vendor demands an NDA about the whole situation and
The user base is effectively "divided and conquered", since at that point
the Downstream has a business relationship with Vendor and (possibly) also
can't afford to violate the NDA by telling anyone. Without the NDA, of
course, Downstream would have the right to distribute under the 2-Clause-BSD
-- but why would they? They just paid a lot of money to get that, and they
just give it to their competition? There are few business who would care
about software freedom enough to do that.
I think *maybe* this problem (if real) could be remedied with a deflation of
proprietary relicensing clause that reads something more like this:
If I distribute a Covered Work under any license (except pursuant to
6(a-c)) other than this License, then the licenses I grant You under
section 1 are no longer subject to the conditions in sections 2 and 3.
I'd like to discuss whether:
(0) the problem I described is real (I obviously think it is, otherwise I
wouldn't be posting it :), but I'm open-minded about this)
(1) whether my approach to solve it is on the right track at all, and
(2) if anyone else has a different approach to address these problems.
My specific concerns regarding (1) is that I have this sinking feeling that
some of the "escape hatches" away from pure copyleft (i.e., "only under
License and nothing else") that 6(a-c) currently provide might *also* be
used for some form of proprietary relicensing tomfoolery as well. I am also
not clear whether (a) my clause still functions coherently if you yank the
"except pursuant to 6(a-c)", and/or (b) whether the mere existence of 6(a-c)
means there will always be some way for tomfoolery no matter how we chose to
deflate proprietary relicensing.
[ BTW, in researching and thinking about what became this email (and a blog
post I'll be putting up soon generally about proprietary relicensing), I
realized "nullification of copyleft" is a problematic phrase for this
license feature, so as you see I've been calling it "deflation of
proprietary relicensing" -- sort of imagining copyleft as a balloon that
gets deflated if upstream tries to proprietary relicense. I'm getting
used to the term, but if others have better ideas, let's discuss that too.
License adoption is obviously also about marketing, so we need good
phrases to get attention for coypleft-next. Minor HBR Cure related to
this: I talked with Fontana last week on IRC about what terminology might
work better and we couldn't really come up with anything that I thought
was compelling. I came up with "deflation" as a word choice a few days
later on my own. ]
Ok, enough of a core-dump. I've obviously been thinking about this on my
own for a number of weeks so I now really would love to read what all of you
Bradley M. Kuhn - he/him
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