Are there any hybrid open-source/proprietary software licenses and business models?

Question

Does licensing and ownership of software and intellectual property work on a spectrum of extremes and in-between nuances, or is it an "either this or that" decision?

Let me give concrete examples by presenting 3 hypothetical phases in the development of a software company:

• You've developed software for a while and you're on to something big, you're creating novel technology or a niche application that could gain traction and wide-spread use. However, you're inexperienced in launching businesses and you don't have financial assets to hire additional workers to help you with various aspects of your endeavor. Is it possible at this point to simply open-source your software to accelerate the development of the product and later on close source it, or some kind of arrangement where you allow others to partake but still retain ownership of the software?

• You now lead a modest middle-sized software business. Your intent was never to simply maximize profits, you actually want to share your technology so that others can make use of it, at least parts of your tech. Is it possible here to limit the use of your technology to private actors, educational institutions and non-profits while demanding royalty/license fees from businesses that wish to license your tech for use in their non-profit ventures?

• You're ready to let your business be acquired/sold but you're concerned with how the technology that you have built and refined over the years will be misused and that the management and future utilization of it will not be aligned with your mission statement of making this available to non-profits. At this point is it possible to enforce a clause that would prevent the future owner from shutting down and wiping the technology from public use? Or is there a way to ensure that "if company B, that acquired tech X from company A, should itself cease to operate, then tech X must be released into the public domain"?

Basically, the underlying premise of the questions is, if there is such a legal and business-oriented arrangement that maximally empowers a software engineer or creator to publish their product in the open-source space and gain traction (assuming they're lacking financial aid to run their own business out of their own pocket) and avoid being ripped off by larger corporate entities. Furthermore if it is possible to keep a commitment to provide the core technology to the public without having for-profit entities profit off of it, and monetizing parts of the product or perhaps providing a service to remain cash flow positive. As well as, ensuring the tech or value of the product doesn't get squandered should a change of ownership or acquisition occur.

Answer 1

1 - You could go back to closed source ... IF you did not accept any code from others under the terms of your Free-license-of-choice. You could also refuse to accept code contributions without an accompanying assignment of copyright, but that will just get your software fork()ed (see Open/Libre Office for an example, or MySQL and how MariaDB came about). Note that users that obtained your program before switching back still have the original rights of the Free license the software was distributed to them under.

2 - What you are looking for with this point is non-Free software. "No discrimination against persons or groups" and "all fields of endeavor"

3 - Some people think that using Free software as the back end and infrastructure behind a SaaS setup is a violation of end user rights, and some newer Free software licenses try to do something about this, the AGPLv3 being an example.

Answer 2

Is it possible at this point to simply open-source your software to accelerate the development of the product and later on close source it, or some kind of arrangement where you allow others to partake but still retain ownership of the software?

Yes, this is possible, but you have to make sure all contributors abstain from their rights - which can actually be a reason for potential contributors not to participate. If you want free work from other devs, you usually need to give them something in return for this, which means usually the source code of the whole product. They may not be happy with the idea of giving you some source code for free, and then you close the source and sell their work. Note you can never close an already published version of the source afterwards, once you made a version of your product FOSS, that version stays open. Only newer versions can become closed. That means, closing afterwards the source will only cut external contributors from updates.

Is it possible here to limit the use of your technology to private actors, educational institutions and non-profits while demanding royalty/license fees from businesses that wish to license your tech for use in their non-profit ventures?

Absolutely - but this question is not really about open source, and the answer "yes" is valid for closed or open source equally. If you can enforce correct licensing for commercial usage, especially internal usage inside a company, is a complete different thing. If someone as a private person, downloads your software and then passes it over to some company for their internal usage is something for which the chances are high you will never become aware of, and even if you become aware, you may have problems to proof this in court. GPL, for example, does not even try to enforce this, that license only enforces depending code (derivative works) to be open-sourced in case of public deployment.

Note some companies use the approach of dual-licensing a product - they make the source code GPL and offer a commercial license for paying users. GPL does not forbid commercial usage, but it can make it economically infeasable. So if a commercial useer wants to use the source in a closed source product which is deployed/sold to customers, they have to buy the commercial license unless they want to be forced to open source their own code.

At this point is it possible to enforce a clause that would prevent the future owner from shutting down and wiping the technology from public use?

You can surely write such a clause into the selling contract, or you can release the code to the public under a suitable open-source licence right before the sale. If you can enforce such a clause is a different question, that may require to be tested in court.