How can I forbid shady resale practices?

Question

From time to time, I come across a website that is clearly selling my MIT-licensed, FOSS project verbatim to unsuspecting buyers under an alternative name. Of course, they do not acknowledge the fact that the entire codebase and support is available for free. They may or may not include a copy of my license "in all copies or substantial portions of the Software" - how would I know unless I coughed up the money to their paywall?

To me this seems to be crossing the line - using a product that I and my team worked very hard on to essentially rip people off. Practically and legally, how can I prevent this?

To make it clear, I'm not trying to prevent:

• General commercial use of our project. I don't mind, and in fact the software is designed, for someone to quickly build web applications for their businesses and organizations.
• Usage in SaaS products (in this case they would be selling the service, not the software itself).
• I don't even necessarily mind if someone adds substantial features, and then sells those features bundled with my product - so long as it is advertised that way. I want sellers to make it clear to buyers that their product is "Based on the free, open-source _____ project", and that you are paying for certain premium features (ideally, these would be listed explicitly).

The idea is that a seller would have to give full disclosure so that buyers would know which features of the software they are actually paying for, versus what they can already get for free.

Is there a license that addresses this? Or, is there any precedent that the MIT license already covers this scenario?

It's worth pointing out that this project isn't a library, which would be used as a component in a larger application. It is a fully-functioning, standalone application.

Answer 1

Let's examine the MIT licence:

Copyright (c) [year] [copyright holders]

Standard copyright string

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:

In essence the recipient can do nearly anything with the Software, provided that:

The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.

The above copyright notice (the "Copyright (c)" line) and the remainder of this notice is included "in all copies or substantial portions of the Software." - see below.

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.

A standard disclaimer of liability

---

Now, what does that condition ('The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.') mean? It means simply what it says, that the copyright notice and the licence texts needs to be included (somehow) in all copies of the Software or substantial portions of the Software. If someone therefore produces a derivative work, they need to include this text. That's what it says, no more and no less. Unlike the GPL which specifies how the text has to be included, this merely says that it needs to be included. There is no word like "prominently" describing how it has to be included. A common route is simply a text file somewhere within a binary tar-ball.

Why does the MIT licence not specify a greater degree of prominence? Apart from the fact MIT presumably felt they did not need or want that, two reasons:

1. This would restrict what the recipient can do. An early predecessor of the GPL says the message should be displayed "on start up of the program". How would that work in a SaaS environment for instance? If a program is composed of (inter alia) 100 MIT licensed modules, would you want 100 licenses displayed?

2. The purpose is (I believe) in the main to provably assert copyright (so the recipient cannot claim they did not know code was not in the public domain) and ensure the disclaimer of liability was effective (which it might not be were it omitted).

To your questions:

Is there a license that addresses this?

You haven't explained what 'this' is. Is the issue that you aren't getting credit, or that people are selling the software and making money in a 'shady' way?

If the issue is that you aren't getting credit, there are licenses (e.g. the GPL) which require more prominent attribution. However, even these may not be sufficient for you. For instance, it's quite possible to distribute products containing GPL software and not make this particularly prominent. Consider how many appliance routers etc. contain Linux. Sure, the good guys will (somewhere) mention the GPL licence, perhaps in page 98 of their click-through licence, and offer the source, but there's nothing to make them give credit.

And there is nothing to prevent people selling GPL licensed software either. Look at (e.g.) RHEL.

It's thus not evident what precisely you want to do. Perhaps you want to permit only non-commercial use of your software without some pre-arranged prominent attribution (I'm taking it that's the 'shady' you are referring to). That's fine, but that's not an open source licence (or at least not an OSI compliant licence). See for instance the answers to this question, particularly the bit mentioning that the Open Source Initiative says:

Can Open Source software be used for commercial purposes?

Absolutely. All Open Source software can be used for commercial purpose; the Open Source Definition guarantees this. You can even sell Open Source software.

Also, the fact your current software is released under the MIT licence means that they can always use that version of the software under the MIT licence. This doesn't give them the right to future versions (derived works) under that licence though.

Or, is there any precedent that the MIT license already covers this scenario?

The MIT licence permits the behaviour you complain of, providing they include the licence text including the copyright string somewhere. They only have to include it in copies of the software, and have every right to put it behind their 'paywall', whether you like it or not.

Answer 2

Changing the license at this point can't help you, they already got their copy under the original license. But, if it really is the MIT license, it has a clause in it about attribution. So, if they really aren't meeting that clause you may have a case to sue them for any and all moneys they've collected. But, to do that you will need a lawyer, which is also what you need to find out what you can actually do. Needless to say I am not a lawyer, and this is not legal advice.

Answer 3

Looks like you need a little copyleft.

The GNU Lesser General Public License seems perfect for you. A relevant clause:

You may convey a Combined Work under terms of your choice that, taken together, effectively do not restrict modification of the portions of the Library contained in the Combined Work and reverse engineering for debugging such modifications, if you also do each of the following:

a) Give prominent notice with each copy of the Combined Work that the Library is used in it and that the Library and its use are covered by this License.

If you want a license that's a little more permissive and less complex, then I would recommend the Mozilla Public License version 2.0 (FAQ). Two relevant clauses:

3.1 Distribution of Source Code Form

... You must inform recipients that the Source Code Form of the Covered Software is governed by the terms of this License, and how they can obtain a copy of this License. ...

3.2 Distribution of Executable Form

If You distribute Covered Software in Executable Form then:

a. such Covered Software must also be made available in Source Code Form, as described in Section 3.1, and You must inform recipients of the Executable Form how they can obtain a copy of such Source Code Form by reasonable means in a timely manner...

Unlike the LGPL, the MPL does not require that non-standard features of the library be documented exactly, only that the MPL parts of the combined work be named and made available as source, so it's not ideal. It draws a lesser boundary for the code its copyleft claims than the LGPL (the source code file), but does so very clearly and strongly.

The Artistic License 2.0 may be another option, in turn more permissive and less complicated than the MPL. Of particular interest is Section 4:

You may Distribute your Modified Version as Source...provided that you clearly document how it differs from the Standard Version, including, but not limited to, documenting any non-standard features, executables, or modules...

Section 8 seems perfect for your situation:

You are permitted to link Modified and Standard Versions...and Distribute the result without restriction, provided the result does not expose a direct interface to the Package.

You stated that people are bundling your library "verbatim", and section 4 will ensure they give you proper credit if they add features to your library and distribute the result (since that is a direct interface), but if they're incorporating it into web applications then they won't be required to publish the source to those.

Lastly, if you don't want to resort to copyleft at all you could use the infamous original BSD license, which includes this clause:

All advertising materials mentioning features or use of this software must display the following acknowledgement: This product includes software developed by the University of California, Berkeley and its contributors.

Of course you would replace the University of California name with your own. However, this is not recommended, and I advise you against it as well. It will make your program GPL-incompatible and causes practical problems.

No matter what you choose, you should be aware that FLOSS licenses cannot be revoked, so you may still see people packaging older versions of your software after you relicense.

Answer 4

You seem to need to know three things:

1. Whether the MIT license was meant to be used the way those people did. I think they did nothing wrong (since you say there is a chance they did include the MIT license in portions of the software. Facts needed though) because the short form of the MIT license is:

Massachusetts Institute of Technology license (MIT): You are allowed to use, modify and distribute copies of the software as long as you allow the same rights to the person to whom you distribute the software

2. Whether there is any other license you could've used for "The idea is that a seller would have to give full disclosure so that buyers would know which features of the software they are actually paying for, versus what they can already get for free.":
   Well, the MIT license already covers that. There's also the LGPL, BSD, Apache license and Mozilla Public License that do what you want.

More to browse here: http://nrecursions.blogspot.in/2014/05/a-simplified-reference-to-various.html

3. What to do if there are violations of the license.
Who can help?
You can contact the:
- Open Invention Network
- Software Freedom Law Center
- GPL violation foundation (might not apply to your case, but they might provide some pointers)
- Software Freedom Conservancy

The "Who can help" link will take you to links for all the bulletted points.

Answer 5

In the four years since this question was asked, the Commons Clause has appeared. While it's not free of controversy (e.g. is it open source? Is it enforceable?), I think this is exactly what the asker was looking for. In short, you can append this to your favorite open source license and it will, in theory, prevent the resale of your software without "substantial" modification.

From commonsclause.com:

The Commons Clause was intended, in practice, to have virtually no effect other than force a negotiation with those who take predatory commercial advantage of open source development.