Filed under: copyright, distribution, enforceability, license grant, open source, source code
I saw an intriguing post the other day by Jennifer Schiffer on WordPress, themes and the GPL. She linked to a video of Matt Mullenweg (one of WordPress’ lead developers) who was talking about why WordPress was a GPL product (short answer: they didn’t really have a choice because WP is based on b2, which was GPL) and, more specifically, was talking about why themes and plugins are also then GPL.
The truth of the matter is that the GPLv3 is a very restrictive license, in as much as it’s also a harbinger of freedom. The GPL was written in a way to specifically retain the freedoms it grants through successive iterations of a particular product, or its add-ons. This means that if you like a GPL product, develop a derivative work, a modification, a plug-in or any other type of add-on, the resulting work is also going to be covered by the GPL (you do not have a choice in this).
“You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License.” – Section 10 of the GPL
This means that unless the WordPress GPL (yes, they’re specific by product… you can ADD restrictions if you want… so no 2 GPL’d products are necessarily identically licensed – we’ll talk about this in a minute) allowed for a theme developer to restrict the distribution of a theme, a theme developer isn’t allowed to add that restriction on their own. Your development on a GPL product inherits the license of the original product.
Inheritance is a powerful concept because it creates license congruity, ad infinitum, for all downstream works of the original code. It would be extremely difficult to manage license compliance if WordPress had one license, but a plug-in had a different one.
But there’s apparently a wonderful new theme available for WordPress called Thesis. Its developer sells two several different versions of the theme (selling under the GPL is fine). The problem comes to light when you look at the options:
- Personal: one site only; footer link must remain intact; can’t re-sell theme or modifications
- Developer: can create multiple sites and must pay Thesis developer for each site deployed; can remove footer link; can’t re-sell theme or modifications
And these options are problematic because they violate the GPL v2 under which WordPress is licensed. Specifically, Section 2, which states, in part:
“You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.”
and Section 6:
“Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.”
(Note that v2 and v3 of the GPL are vastly different animals… and v2 was actually more in the realm of “free as in free beer” than v3, which touts freedom as “free as in free speech, not free beer”.)
So, in fact, the Thesis theme, as a WordPress derivative work, is bound to the GPLv2 license that WordPress is licensed under. As such, even the sale of the theme is a problem, as are the one-site-only restrictions and the “can’t re-sell” restrictions. Note: the footer link restriction is probably fine, as it could qualify as the attribution allowed under the GPL. Additionally, it could be argued that the fee charged is for the “physical act of transferring a copy” as allowed by Section 1 of GPLv2, but even then, the remainder of the unauthorized restrictions are still problematic.
But who is going to do anything about this violation? Who has the right to enforce the license? WordPress? The folks at b2 (WordPress’ predecessor)? Any particular end user? Technically, it’s the folks at WordPress who have the right to enforce their license upon theme and plug-in developers. They have the ability to potentially even sue to prevent a rogue developer from violating their license with WordPress [though I’m guessing that a theme developer is going to try to argue that a theme isn’t a derivative work or a modification]. But this is inherently difficult. So instead, WordPress is taking a slightly different tack. They’re going to create a Theme Page on the main WordPress website which only lists themes that follow the GPL (by the way, all derivatives have to be GPLv2 licensed, as the WordPress license doesn’t allow for newer versions of the GPL to apply). I’m guessing that Thesis won’t be listed.
I’m simply stunned by a recent article written by Cnet columnist Rafe Needleman.
In his post, he blatently advocates buying “lesser” versions of Microsoft products to take advantages of the discounts available to certain classes of users, regardless of whether you actually fall into that user class. His cavalier attitude towards the vendor (telling his readers that Microsoft probably doesn’t check up on usage) and the user (suggesting that users who pay the appropriate price for their user class are “suckers”) is abhorent and I’m frankly disappointed that the editors at Cnet allowed this garbage to see daylight.
I’ve responded twice in the comments (as “negot8or” if you care to read them… once on page 1 and again on page 2). The general gist of my response is that if you don’t like the pricing for a particular product, don’t buy it. Vote with your pocketbook. Vendors who don’t sell enough software will either drop their price or drop out of the market. But buying something you’re not licensed to use and using it anyways is a form of theft (“software piracy” if you will). Software has historically been sold on the basis of end-user value. It’s the right of the vendor to charge whatever they want. Stealing, in any form, isn’t justified because there exists a cheaper price somewhere else – or for someone other than you.
As much as I advocate for better software licensing terms and more transparency from vendors, I do not believe in taking what isn’t yours. I hope you agree.
As many are reporting, Amazon.com “recalled” an e-book remotely in response to a request by a publisher. This is all kinds of scary and most folks are centered on the purely tangible nature of the problem. I’m also concerned about the precent it sets, but I’m more concerned about the sapping of intellectual property rights that seems to be yet unexplored by these articles.
When you buy a book, you’re actually completing two transactions. You’re purchasing the paper – the tangible product. But you’re also buying a copy of the story itself – the intellectual property. Each of these has distinct legal implications and over the years, laws have been developed to help protect not only the customer/consumer, but also the author and publisher. The physical aspect protecting the consumer is that you have the ability to change your mind about your purchase (ie: you can return the book assuming you don’t damage it and that the transaction wasn’t noted as “all sales final” (though this isn’t an absolute bar to return)). Retailers are likewise allowed to return what is returned to them – they have even more flexible return policies with their distributors. And, as we’ve seen in the prior articles, folks are in an uproar about the idea that a retailer would come to your house to automatically take-back things you’ve purchased simply because their distributors wanted them to do so.
The other transaction – the one for the intellectual property – is much more interesting (IMHO).
Copyright is the protection most books are afforded. When you buy a book, you have the right to read the story, burn/destroy the book, talk about the story with anyone, and heck, you can even resell the book (this is all part of what is known as the “first sale doctrine”. What you can’t do is make copies of the book. If you sell it to someone else, you can’t keep a copy for yourself, too (this is the issue with software, music, movies, etc being “shared” online). But short of sale, the ownership in the copy is yours. Therefore, it’s my argument that Amazon.com’s behavior amounts to theft – both of the tangible item AND the intellectual property.
The usual problem with pursuing this claim is that a service provider is smart enough to make device owners agree to some form of Terms of Service. I would’ve thought that the Kindle ToS would have even been so bold as to allow Amazon an unrestricted right to do what they did. But it doesn’t (Amazon Kindle ToS as of 2/9/2009):
Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon. [Emphasis added.]
I have other problems with this document, of course (such as the restrictions on resale). But on its surface, Amazon grants a perpetual license to the purchased content. So through their behavior, following their own Terms of Service, they’re in breach. But we won’t hear about any suits as the ToS restricts claims to confidential arbitration and limits damages to the price of the device.
For its part, Amazon says that “We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances.”
[Update: Amazon’s Herdener (the source of the above quote) actually said more:
These books were added to our catalog using our self-service platform by a third-party who did not have the rights to the books. When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers’ devices, and refunded customers. We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances.
This doesn’t really change anything. Even if an unauthorized party sells you something they don’t own, so long as you don’t know that the item wasn’t theirs to sell, you retain ownership as a “bonafide purchaser.” I’m glad to see that Amazon won’t remove books in the future, seeing that they weren’t supposed to do it in the first place.]
Vinnie Mirchandani at deal architect pointed out a Ray Wang article on the resale of unused licenses. My thoughts are in the comments on Ray’s article. But generally speaking, regardless of what Ray suggests, you can’t do it in the US (or the rest of the Berne Convention countries) under most licenses which have express prohibitions against it (you can almost always contract away your rights).
And, even if you could, your organization probably doesn’t have tracking enough to make it possible – just remember that if you overuse your permitted license count, chances are there’s another provision in your license that allows the vendor to charge you (perhaps at non-discounted pricing) for the overage.
What I DO like about Ray’s suggestion is that idea that you should try to negotiate for a recapture of maintenance fees on unused licenses. If you can’t resell them, the least you can do is take an annual count and only pay maintenance on the ones you’re using. There is, of course, trouble with this thought, too – as there are some vendors that used to allow this (the last one I remember was Autodesk). But the trouble is that you can get into a situation where you only upgrade SOME of your licenses to the current version because not all of them are currently covered by maintenance and the upgrades provided under such program.
Many of the technologies we use every day come with a license agreement of some sort. You might not even realize that it’s so because of where you are in the transaction chain – either as a buyer or as a seller. Content, for instance, is created, licensed/sold, packaged, re-licensed/re-sold, bundled, re-licensed/re-sold, and on and on so many times that you can hardly figure out who actually created much of what you read online. This is important, especially insofar as you want to be sure of who is providing the information that you use to make decisions, but also because as information is licensed/bundled/re-licensed over and over, it’s possible that the content creator isn’t getting what they earned as part of the transaction (namely, credit/attribution and/or payment).
Several services have popped up recently that are allowing content to move from one format to another – especially on Amazon-related products and platforms (ie: the Kindle). More specifically, Amazon is now allowing blog authors to license content for packaging and distribution on the Kindle, with the blog author receiving about 30% of the revenue generated from the license price. So, if I were to want this blog to be available as a Kindle subscription for say, $1.99, I would get $.31 for every subscription. But there’s a problem, Amazon has a license agreement that I would have to accept in order to make this happen. And this license agreement also gives Amazon the right to bundle and resell my content in other forms, too, without paying me for it at all. [For a full conversation on this, see this great post by Edward Champion.]
Additionally, Amazon’s current system doesn’t actually even check to see if I’m the owner of the blog I’m submitting into the Kindle Blog service! So I could create an account, submit any of your blogs as my own, and in just a few clicks, create Amazon entries for your blog’s content – even competing with the “real” listing (if you so happened to have agreed to the terms as well and started using the service).
So, for the record, while I love Amazon for a bunch of reasons, this blog is NOT being made available as a Kindle subscription. It is, however, being posted ON Amazon as part of Amazon’s author services… so you can read the individual postings if you go to the Software Licensing Handbook page at Amazon. But if you happen to see it on your Kindle device, you’re paying someone else for stolen content.
I was recently asked whether I would ever allow a customer to audit my contracts. The simple answer is No!
Of course, the original question wasn’t this simple. The person asking the question had some interesting constraints. Specifically, they were licensing software on an exclusive basis, with exclusivity carved out by geographic region. So a prospective customer wanted to review the vendor’s contracts to make sure that they weren’t getting into an overlap situation. My answer was still No!
First, contracts are, even at a fundamental level, based on trust and honesty, and not based on a lack thereof. If you don’t trust the person you’re contracting with, the contract isn’t going to help you too much. In other words, you can’t contract trust. It just doesn’t work that way. So if the vendor in this situation was going to be dishonest in overlapping exclusivities, what would make the customer think that they would allow the customer to actually audit all of the agreements? A dishonest vendor would simply hide a portion of the contracts that they didn’t want discovered.
Second, with minor exception (such as during due diligence in a M&A transaction), I would never allow anyone to review my contract files. There’s too much confidential information – and general poking around to see what’s in them isn’t a narrow enough reason to go looking. In fact, even if the looking was just at license grant language, I still think you’re potentially revealing too much information (exclusivities for geographic regions aren’t the only way to restrict licenses and perhaps you also license based on user counts – allowing others to see the full license grant can give them a sense of pricing, perhaps).
Third, there’s a better way to handle the situation: provide a warranty and a specific remedy for breach of this particular warranty. Warrant that you are providing an exclusive license in exchange for specific consideration (probably money, but perhaps something else). If you (vendor) breach this warranty, the sole and exclusive remedy could be the repayment of the specific amount of consideration provided for the exclusivity. So, imagine a situation where you license exclusively by country (perhaps your product handles some sort of sales-related transactions). In exchange for an exclusive license, the customer pays you an extra $1,000,000 in license fees and that this also adds into the annual maintenance costs. If you later decide to break a previously-licensed country into smaller bits, you simply would have to pay back the $1M plus the accrued/paid maintenance fees for the breach.
Now, this sounds like it may provide you with license to later break the agreement – no, I’m not suggesting that, I am however suggesting that you promise not to and a specific penalty for doing so.
Filed under: contract management, current events, license grant, maintenance, pricing, SaaS
Below is the contents of an internal salesforce.com memo CEO Marc Benioff shared with Vinnie Mirchandani (and posted on his blog: deal architect). I’m pasting it here for simplicity’s sake and because of the power of the message itself.
“For ten years, we’ve been driven by a simple vision: The End of Software. Now it’s time to take on a new challenge: The End of Maintenance.
Let me tell you about a customer that I met on our Cloudforce tour. This customer currently uses Siebel software to run her call center. She pays more than $15 million a year for the privilege of having to implement the updates that Siebel sends her. That does not include backup. Or disaster recovery. And of course, it does not guarantee that she will be using the latest technology. The maintenance agreement only assures her that her outdated software will continue to work. She is paying tolls on a road to nowhere.
We can help her, and many other customers, and deliver much more for a fraction of what they currently pay in maintenance. It’s time to open up a new front in “The End of Software”– one that is long overdue.
It’s time for The End of Maintenance.
Every year, companies spend billions on maintenance fees and get relatively little in return. Maintenance fees cover updates that are mostly patches and fixes, but they stop far short of the kind of innovation every that enterprise needs to survive. Companies pay to keep the past working and they end up doubling down on technology that can never keep up with their needs. The fees that companies pay have actually been rising, from something like 17% a few years ago to numbers more like 22% today. Every four or five years, companies are paying for their software all over again.
It’s time to set these businesses free and make them successful in the Sales Cloud, Service Cloud and on our Force.com platform.
Our new mission begins at a critical time in the economy, when companies are questioning conventional wisdom as they never have before. That, of course, extends to their IT budgets as well. The CIO is in a tough spot right now. Corporate budgets are tightening. And our rivals in the legacy client-server world are using this opportunities to extract more money from their customers by raising maintenance fees. I call this phenomenon “the compression of IT” and it resonates with just about every CIO I speak with these days.
We have a better vision. We sell our customers a service and every customer is able to use the latest. Innovations are included. Upgrades are automatic and invisible. Customers’ intellectual property of customizations and extensions is rigorously preserved, and carried forward without disruption.
The service gets better, not just less buggy. That’s not what people are getting for all those fees that supposedly buy them “maintenance.”
It’s time to set these business people free: to give them the experience of being wildly successful in the Sales Cloud, the Service Cloud, and in their own unique applications that they can build on our Force.com platform. This is the time to do it, because this is when people need it: their IT budgets are tight, their business situations are critical, and their old-world software vendors are taking care of themselves instead of meeting the needs of their customers.
We’ve raised people’s expectations for better alignment of business value with IT cost. We’ve earned our leadership position in enterprise cloud computing. It’s time for us to set people free from paying more and more to get less and less. It’s time for The End of Maintenance.