What's 'Commercial Use' With Open Source Derivatives? - InformationWeek

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Government // Enterprise Architecture
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9/11/2008
01:24 PM
Serdar Yegulalp
Serdar Yegulalp
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What's 'Commercial Use' With Open Source Derivatives?

Some projects derived from open source have licensing fees based on who's using them -- a good idea in practice, but sometimes it can become unintentionally thorny. This goes double if the criterion is "commercial use," one of those terms that, in the words of The Princess Bride's Fezzik, does not always mean what you think it means.

Some projects derived from open source have licensing fees based on who's using them -- a good idea in practice, but sometimes it can become unintentionally thorny. This goes double if the criterion is "commercial use," one of those terms that, in the words of The Princess Bride's Fezzik, does not always mean what you think it means.

The other day I was poking around for a possible replacement for Lokesh Dakar's Lightbox script -- something I use a great deal on my site, and which I adore, but I was curious about possible alternatives. Enter FancyZoom, a truly fantastic image-zooming function that I first bumped into on the Songbird Web site. The author allows the script to be used for free on "noncommercial" Web sites, but asks that commercial users pay $39 per site.

This inspired some discussion in the comments about what constituted a commercial site vs. a noncommercial site. As one commenter put it:

Our site has AdSense, which brings in income. On our site is a blog. We hire freelance writers to write the blog. We pay them more than we make from the AdSense income attributable to the blog. (We do this deliberately in an attempt to develop the blog into a profit center in the future.) Is our blog commercial?

Other comments followed in the same vein, although the author made it clear that he wasn't setting this in stone forever:

The commercial use license is a total experiment with no expectations. I'll play it by ear and adjust as necessary. ...

The only idea behind "commercial licensing" is to help recoup and fund future development of this script by getting something back from the people who make money off of their Web sites (and for whom I'm theoretically saving a lot of time) without affecting all of the people who don't.

This reminded me of a similar discussion I'd had with SixApart, the folks who make Movable Type, about what constituted commercial use. Users had problems with earlier versions of the individual-use license for Movable Type; there was no clear line of demarcation between an individual blogger raking in a few dollars for selling ads and T-shirts, and a corporate / commercial outfit. They did try to clarify things by stating that people who ran a blog with a tip jar or affiliate income weren't commercial, but that still meant a great many other people -- like me -- were in hazy territory.

Finally, 6A redesigned its licensing terms, to wit: Any individual or sole proprietor can use MT Pro under the Blogger License without worrying, but someone who is registered as a corporation for the sake of taxes needs to use the Business License. (And, of course, everyone can use the fully open source version.) In this case, the line of demarcation was unambiguous: either you're registered as a corporation, or you're not.

I'm not exactly scared of the Licensing Police busting down my door and demanding money -- heck, the whole reason I went to an open source blogging solution was because I didn't want to worry about licensing costs. The reason I'm concerned about this issue is because there needs to be plenty of well-documented examples to draw on, now, for how to distinguish "commercial" from "noncommercial" use. The fewer times we have this particular argument from scratch, the better.

[Also be sure to check out InformationWeek's report on acquisitions of open source software companies and the implications that has for their collective future.]

[Addendum: My original opening graf said "Some open source projects have licensing fees..." Bruce (comment below) wrote me personally to say: "Neither FancyZoom or Movable Type are Open Source. There is an Open Source version of movable type called "MTOS" which can be used for any purpose, commercial use included. Open Source licenses aren't allowed to prohibit commercial use. If it has source code and prohibits commercial use, it's "shared-source" a la Microsoft or some other flavor, not Open Source."

True. It would have been more precise for me to say that commercial projects based on open source have licensing stipulations based on their usage. In the above case, it would have been better to say that anyone could opt for MTOS (the open source version of Movable Type), although that edition doesn't contain the more community-oriented features that are available to people who qualify under the Blogger License. In the case of FancyZoom, the argument brought up by the commenters over what constitutes "commercial" use was the most relevant part of that discussion, not whether or not FZ itself was open source.

So the whole thing revolves more around questions of "commercial use" licensing for products in general, although I talked about open source here because using the open source edition of a given item resolves those questions very cleanly.]

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