Commercial or Opensource

In the comments to my last entry, MJR comments:

Interesting opinion, but harmed by some bugs in the basic ideas. For example, “open source” and “commercial” are not opposites, unless you have some particularly strange definition that you use. At least for the GPL this is completely false. The GPL does not give you permission to sell the GPL’d software. The GPL does state:

You may charge a fee for the physical act of transferring a copy, and you may at your option offer warranty protection in exchange for a fee. This quite clearly doesn’t say: you may sell GPL software. Thus, GPL’d software is most definitely not commercial software even though it may come on a commercial CD. Section 4 then says:

4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance. Making it really quite clear that selling the software itself is not allowed, just the physical act of transferring the copy. Besides this, the common usage of the terms open source software and commercial software are most definitely mutually exclusive and thus the intended meaning of the terms should have been clear to anyone who was actually making an attempt to follow the argument rather than just blindly disagreeing. MJR then goes on to say:

Anyway, I think the reason that ASL-1 fans have problems with GPL is because it prevents addition of further conditions and most ASL-1 fans seem to like adding their own “Your announcement must praise ME!” condition to the permission grant. Their position is a lot weaker than FreeBSD fans. Personally, I fail to see a great moral difference between the ASF license requiring you to include a one line statement that you’ve used someone else’s work and the GPL’s requirement that you include the full text of the GPL. Kind of puts things in perspective when you consider it that way. And finally:

Personally, I’m more concerned that people will misapply ASL-2.0 by claiming that something like “Ode to my goldfish” in the NOTICE file is an attribution notice. The patent termination stuff does seem close to the borderline, though. I’m not quite sure how that’s a misapplication of the license. If the original author wants credit to go to his goldfish, what’s wrong with that? The requirements for the license are still clear and unambiguous – you have to include “Ode to my goldfish” in your about box (or similar location). You can put an explanation above it to say that the statement was required as part of using a particular piece of software and so on. The patent termination stuff is something that could be argued over, but personally I take a very strong stance against software patents and particularly the abuse of the patent system, so I’m all for it. If I were to ignore practical issues, the license I’d use would require anyone who used by software to relinquish any software patents they hold. Reality however dictates a more conservative approach as it really isn’t reasonable to request actions beyond what’s required to protect the original authors and their wishes for the use of the software. In closing I have to point out that I’m not a lawyer and this is not legal advice. My objections to being required to point that out because some people are stupid enough to take the unsolicited advice from someone they don’t know from a bar of soap is a rant for another day.