Links to authoritative discussion of why not to add non-commercial clauses to otherwise free/open licenses?

Question

I was recently looking into a very useful git-related development tool (it's nothing whatsoever to do with me, except that I use it, so I won't state here which tool it is). I bring it up because that project has decided to remain closed source (not even 'source available') due to worries that otherwise some larger company could take its codebase and productize it with no recompense. The developers hope to eventually charge for their own product, and don't want to be 'gazumped'.

I looked into this issue on my own behalf. I was initially thinking that surely there was some way for the developers to release their source in a usefully 'open' way but still to avoid this worry, if they wanted to. Now I'm really not so sure!

While looking into it, I did come across the Commons Clause License.

I've asked around, and I now understand that this site is purely for discussion of strictly open (OSI) and free (FSF) licenses, not for variants and related concepts. Nevertheless, I'm hoping it is on topic enough to ask here for some authoritative links to discussions of the (moral or practical) problems with attempting to add non-commercial clauses to (what would otherwise be) free or open licenses, i.e. informed, authoritative discussion of why this shouldn't be done.

I do realise that any such a modification to a free/open license definitely wouldn't meet the widely accepted definitions of free and open. That's true, but it's not an answer as to why it's desirable for this to be the case.

I am already aware of https://www.gnu.org/philosophy/selling.en.html but it does seem really rather dated now. Importantly one key, multiply repeated point is that people certainly can make money out of open source software since it is easy to simply make available copies on physical distribution media (CDs, DVDs, etc.) and to (morally and legally) charge for this - but this isn't a plausible business model any more, I assume almost anyone would agree. So anything which makes relevant points without relying on that argument would be particularly helpful.

Answer 1

The OSI makes their position quite clear in the annotated Open Source Definition:

6. No Discrimination Against Fields of Endeavor

The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.

Rationale: The major intention of this clause is to prohibit license traps that prevent open source from being used commercially. We want commercial users to join our community, not feel excluded from it.

From an open-source utility perspective, this makes sense. Neither GNU/Linux nor the Apache web server (to name some seminal FLOSS successes) would have taken off long-term if they didn't allow commercial use and redistribution, being commonly resold (modified or commercially bundled with other software) or run within commercial services.

On the free software side, freedom is paramount, so any terms that dictate how you may not redistribute the software would not be accepted without extremely good reason.

Considering that the modern ethos of FLOSS was formed by Richard Stallman's formation of the GNU project, it is worth looking at what values he put forward in the GNU Manifesto regarding commercialization.

An awareness of service-based business models:

“Nobody will use it if it is free, because that means they can't rely on any support.”

“You have to charge for the program to pay for providing the support.”

If people would rather pay for GNU plus service than get GNU free without service, a company to provide just service to people who have obtained GNU free ought to be profitable.(4)

[...]

If your business needs to be able to rely on support, the only way is to have all the necessary sources and tools. Then you can hire any available person to fix your problem; you are not at the mercy of any individual. With Unix, the price of sources puts this out of consideration for most businesses. With GNU this will be easy. It is still possible for there to be no available competent person, but this problem cannot be blamed on distribution arrangements. GNU does not eliminate all the world's problems, only some of them. [...]

---

Footnote 4: Several such companies now exist.

A paradigm that prioritizes the economic value of using and modifying software and dislike for an economic model that relies on a copyright monopoly:

“My company needs a proprietary operating system to get a competitive edge.”

GNU will remove operating system software from the realm of competition. You will not be able to get an edge in this area, but neither will your competitors be able to get an edge over you. You and they will compete in other areas, while benefiting mutually in this one. [...]

“Won't programmers starve?”

I could answer that nobody is forced to be a programmer. [...]

But that is the wrong answer because it accepts the questioner's implicit assumption: that without ownership of software, programmers cannot possibly be paid a cent. Supposedly it is all or nothing. [...]

Restricting copying is not the only basis for business in software. It is the most common basis(7) because it brings in the most money. If it were prohibited, or rejected by the customer, software business would move to other bases of organization which are now used less often. There are always numerous ways to organize any kind of business.

[...]

---

Footnote 7: I think I was mistaken in saying that proprietary software was the most common basis for making money in software. It seems that actually the most common business model was and is development of custom software. That does not offer the possibility of collecting rents, so the business has to keep doing real work in order to keep getting income. The custom software business would continue to exist, more or less unchanged, in a free software world. Therefore, I no longer expect that most paid programmers would earn less in a free software world.

It's clear from these quotes that even in the early formation of the free software ideals, allowing commercial use presented an economic hurdle, but not an insurmountable one. Conversely, drafting a license that disallowed commercial use entirely would have (1) made this vision of free software as the core of future commerce impossible and (2) would have run afoul of the entire rest of the manifesto that speaks about freedom to use the and distribute software as one wishes.

There is also a practical problem that "commercial use" is often ambiguous: does it include nonprofits? Even when they are using it to solicit donations? Do governments count as commercial? Is the profit-seeking nature of an agency performing distribution sufficient to categorize some use as commercial, despite no money changing hands for this particular software? In the specific case of the Commons Clause, the prohibition on commercial "hosting or consulting/ support services related to the Software" has this kind of ambiguity: the prohibition on "consulting/support" seems dangerously broad. If I sell a book on how to use the software, or charge tuition on a course about using your software, am I in violation of the license? Possibly, if I include the software with my book, or install the software on the computers I use for the course.

This hazy field of categorization, alongside the strong historic non-monopoly commercial success of major FLOSS projects, has led the community to strongly reject non-commercial terms.

Answer 2

Adding restrictions makes the software less useful for reuse. That is the principal reason. Exactly the same argument speaks against the license proliferation (read Wheeler's "Make your Open Source software GPL-compatible. Or else." for a lucid discussion).

In any case, the original author has an advantage over others when it comes to being able to give support. The sucessful open source shops leveraged this. But it certainly isn't the only way to earn money.

Answer 3

I think apsillers has already done an excellent job of answering your main point, but I must take you up on a lesser one.

I am already aware of https://www.gnu.org/philosophy/selling.en.html but it does seem really rather dated now.

I can't agree. The idea of selling distribution media to cover your costs seems dated now, but here's the thing: it always was. I worked for a client in the early '90s who used a lot of GNU software, and I persuaded them to buy the all-singing-all-dancing complete distro of all GNU software, which even at the time was (iirc) several hundred pounds. Nobody at that time was under any illusion that this was anything other than a voluntary donation to GNU, with but the merest fig leaf of ooh look, it's a commercial transaction to satisfy the auditors. People understood then that you need to donate to keep the free software coming, and I hope they still understand that now.

The more fundamental idea, that it is OK to charge money for your software, but it is unethical to restrict your users' rights in order to shake them down, I don't think has dated in the slightest.