0

An interesting thought popped up to me earlier today as I was developing my project. My thought was whether I could charge royalties for a derivative (being used commercially) of my project. Would charging royalties allow my project to remain open?

To help narrow this down:

I don't want to know about things such as patents and trademarks. Licenses such as the CC0 (though not considered open source) explicitly have clauses on patents and trademarks, and they don't bring these two items into the license with everything else. In a sense, using "CC0" patents/trademarks allows the original creator to legally demand royalties on patents and trademarks.

I'm sorry if it was a little unclear, but here is my question:

Can I [force] charge any royalties for derivatives of my open source project that are being used commercially?

|improve this question
  • 1
    What is meant by "charging royalties"? Do you mean: (1) "Can I force people to pay me royalties?" Or do you mean: (2) "Can I say: Please, pretty please, pay me some royalties if you make money on my project?" The answer to the first question is "no". The answer to the second question is :"yes, but if people don't want to pay, they don't have to". – Free Radical Jul 30 '15 at 18:16
  • 3
    I feel like this question could use some clarification. – overactor Jul 30 '15 at 20:36
  • 1
    I'm still not clear on who is developing the derivatives? is it you? are you trying to get a fork to pay you? I think my answer answers those questions though. – xenoterracide Aug 1 '15 at 16:33
  • also force is subjective, force once? force for every copy they redistribute? force for every copy someone else uses? – xenoterracide Aug 1 '15 at 16:45
4

Thank you for clarifying the question, which is:

Can I [force] charge any royalties for derivatives of my open source project that are being used commercially?

No.

At least not if you use a real free software license) that goes to some lengths to guarantee the user the four essential freedoms, as charging royalties would conflict with the freedom to use (run) and freedom to distribute:

The freedom to run the program as you wish, for any purpose (freedom 0).

Freedom to distribute (freedoms 2 and 3) means you are free to redistribute copies, either with or without modifications, either gratis or charging a fee for distribution, to anyone anywhere.

Saying that whoever distributes or otherwise uses your program cannot do so unless they pay you royalties would violate those essential freedoms.

You say you are not interested in patents or trademarks, but as a bonus :-), you'll get those answered as well.

Trademarks are irrelevant. You're not allowed to use a trademark without permission, no matter what type of license is used, so just modify the software to not show it. There is no way to force anyone to pay for your free software even if you've trademarked it.

As for collecting royalties on patents: If your license is GPLv2, GPLv3 and AGPL, please note that all of these have explicit anti-patent clauses that would also prevent you from collecting patent royalties.

As for licenses that don't mention patents up front, such as the MIT license, it says:

Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions: [...] (my emphasis)

While not as iron-clad as the anti-patent clauses of the GPL-licenses, the general language promising unrestricted rights to use and the rights to distribution free of charge will make it very difficult for a licensor to collect any money, for whatever reason, if the software is offered under the MIT license. It is very likely that if you hold a patent, and try to collect, the court will rule that by using those exact words, you've waived your right to collect any royalties - including patent royalties - on use and distribution of the licensed software.

|improve this answer
  • If you disclose the patent, then I disagree about the legal interpretation of the license. If you don't disclose the patent, you can't collect for infringement anyway. – bmargulies Aug 1 '15 at 15:04
  • 1
    @bmargulies I've created a question that specifically addresses patent disclosure and permissive licenses: opensource.stackexchange.com/questions/1398/… - this is just a bonus answer and does not go into the nitty-gritty details . – Free Radical Aug 1 '15 at 15:15
2

If your project is free software, then you can't charge royalties for people using it. Free software implies that there is no restriction on use, that's freedom 0. “You can't use this unless you pay me” would be a restriction on use.

With the more liberal Open Source Definition, you can charge the original recipient of the software, as in, you can make their use of the software subject to a fee. However you can't prevent them from distributing it further, without paying you or even informing you: that's spelled out in the very first clause of the OSD. Since clause 8 and clause 9 prevent restrictions from applying to a specific bundling of the software, I think that even if the original recipient is charged for use, they can use the legal loophole of redistributing the software to themselves, and using only that redistributed copy, which wouldn't be subject to your original usage restrictions. So you effectively can't restrict use.

If your license is a copyleft license, then even commercial users would have to respect the open source license. If you hold sole copyright over your project, or more generally if all the copyright holders agree, you may distribute it under a dual license: a copyleft one, and one that allows closed-source derivatives but requires a fee. This is fairly common.

Distributing your project under an open source license doesn't preclude charging for something other than the use of the source code. If you offer a service where people can run your software on your computers, you can charge for that. People would still not have to pay if they elect to run your software on their own computers or a third party's. Another common example is that if you hold a patent to an algorithm used by the software, you can distribute the code under an open source license but charge for its use. A few open source licenses (e.g. GPLv3) have the licensor waive patent rights, but most (including GPLv2) don't. I don't have an example in mind but I've seen patented algorithms where the patent holder charged royalties unless the algorithm was used in software that complied with certain compatibility standards.

|improve this answer
  • While technically not a waiver, it should be noted that GPLv2 has a "liberty or death" patent clause: "if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program." It essentially says that you cannot distribute your Program under GPLv2 unless you also issue a patent license where you waive the right to collect royalties. – Free Radical Jul 31 '15 at 3:21
  • Alright, just to clarify: charging royalties would restrict the use of a project? – Zizouz212 Aug 1 '15 at 18:31
  • @Zizouz212 Could you please clarify what you mean by “charging royalties”? Evidently I'm not the only one who isn't sure what you mean. If you mean that people would have to pay for using your software, then indeed, having to pay to use it would violate one of the basic principles of open source. – Gilles 'SO- stop being evil' Aug 1 '15 at 18:44
  • Sure, I wasn't exactly sure where it was unclear, and what to clarify. The only guidance I really got was "this can use clarification"... Maybe I'll see if I can think of an example. – Zizouz212 Aug 1 '15 at 19:14
  • Open source implies that there is no restriction on use. plain wrong. – Cthulhu Aug 4 '15 at 10:38
1

The answer depends a lot on what you are referring to when you say "derivative", who is making said derivative, and what kind of "royalty" you'd like to force, and what you mean by "commercial". One might infer from your question as worded that you are referring to a fork of an open source project that is making money off the software somehow and you'd like to collect money for each user they have. If that's the case the answer is simply no. However there are many other possible ways you could mean derived, and other ways to collect fee's. Dual licensing, Charging for source, binaries, and other distributions, charging for plugins, or more feature rich versions, and requiring your competitor to rebrand come to mind.

For example, if you license the original work as GPLv3, as the copyright holder (presuming you're the sole or otherwise have a contributor license agreement that prevents them from being copyright holders). You can still license a derived work as proprietary under the same kind of dual licensing that Qt, and MySQL use to release proprietary plugins, and other commercial derivatives. Basically as a copyright holder, you can relicense at will.

Is the developer of a GPL-covered program bound by the GPL? Could the developer's actions ever be a violation of the GPL?

Strictly speaking, the GPL is a license from the developer for others to use, distribute and change the program. The developer itself is not bound by it, so no matter what the developer does, this is not a “violation” of the GPL.

However, if the developer does something that would violate the GPL if done by someone else, the developer will surely lose moral standing in the community.

GPL explicitly allows you to charge redistribution, built binaries, documentation, and support. However, it require that people building binaries, or that have paid for your source, not be required to charge for redistributing those. Basically once someone else has the source they can do all of those things too.

Here are some relevant sections of the GPL FAQ pertaining to my statements.

Does the GPL allow me to require that anyone who receives the software must pay me a fee and/or notify me?

No. In fact, a requirement like that would make the program non-free. If people have to pay when they get a copy of a program, or if they have to notify anyone in particular, then the program is not free. See the definition of free software.

The GPL is a free software license, and therefore it permits people to use and even redistribute the software without being required to pay anyone a fee for doing so.

You can charge people a fee to get a copy from you. You can't require people to pay you when they get a copy from someone else.

If I distribute GPL'd software for a fee, am I required to also make it available to the public without a charge?

No. However, if someone pays your fee and gets a copy, the GPL gives them the freedom to release it to the public, with or without a fee. For example, someone could pay your fee, and then put her copy on a web site for the general public.

You can also pull a Mozilla and require that your trademark, e.g FireFox, only be applied to binaries build by you, Mozilla. If someone else builds the binaries they must use a different name.

You may distribute unchanged official binaries (i.e., the installer file available for download for each platform (code + config) and not the program executable) downloaded from www.mozilla.com or www.mozilla.org to anyone in any way, subject to governing law, without receiving any further permission from Mozilla. If you want to distribute the unchanged official binaries using the Mozilla Marks, you may do so, without receiving any further permission from Mozilla, as long as you comply with this Trademark Policy and you distribute them without charge. However, you must not remove or change any part of the official binary, including the Mozilla Marks. On your website or in other materials, you may truthfully state that the software you are providing is an unmodified version of a Mozilla application, keeping in mind the overall guidelines for the use of Mozilla Marks in printed materials, detailed above. We suggest that, if you choose to provide visitors to your website the opportunity to download Mozilla product, you do so by means of a link to our site, to help ensure faster, more reliable downloads.

Mozilla Trademark Policy

One trick, that you might do is AGPLv3 the source, which means if anyone outside of the copyright holder is using it (including over the network) and modified it, they must distribute their source changes. You could then prevent, using that trademark policy the use of your trademark, and allow relicensing under less restrictive terms if they were to pay you. I am not a lawyer, I would ensure that AGPL allows the craziness of the Trademark Policy.

|improve this answer
  • 1
    This looks like an answer to a different question. The OP's question isn't about dual licensing. The OP is asking if he can force people that distribute derivatives of an open source licensed project to pay him. He can obviously get paid for derivatives of a non-free dual license distribution. – Free Radical Aug 1 '15 at 16:23
  • @FreeRadical I find his wording poor, and I can't tell what he means by "derived", and I'm not just talking about dual licensing. He can write a closed source extension as the developer and charge for it. Hell he could even subclass it and charge for it. That's "derived", so long as he's the copyright holder. Although perhaps my read of his question is wrong, he cannot force them to charge for their distributions. He can charge to distribute to them though – xenoterracide Aug 1 '15 at 16:31
  • @xenoterracide If you find the wording to my question poor, I would gladly approve an edit by you that improves upon the "poor" wording. I feel like I have conveyed the basic meaning of my question. Also, my question is not about dual-licensing, but Free Radical has captured the essence of my question in his comment above. – Zizouz212 Aug 1 '15 at 18:30
  • @Zizouz212 I would edit your question except I don't know the answers. Who is making commercial derivatives? You (the copyright holder)? someone else that forked the project? the answer implies that someone is forking the project, and you would like to receive some compensation from their forks users. However (also note: my answer isn't just about Dual licensing, that's just the first paragraph, I also mention things like charging for the source code, which as worded could very well answer your question) – xenoterracide Aug 1 '15 at 18:51

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.