3

I need an open source license which allows for commercial entities to join academic and government entities, and to use our tools in their internal research and development. I need to bar the direct commercialization of these tools. The tools in question consist of code and associated textual resources (snippits of text). Our partners are in higher education, government, and industry. I perform research at the university, and I want to make sure that our partners, and indeed any company, can use these tools in their internal research and development.

The contracting person I am facing at my university is not very helpful, but possibly it's because licenses that walk this line do not exist. I have worked under "nonexclusive research and development" licenses (NERDs) which seemed to do something similar between partners: they allow for work that I produce to be used in a company's internal research and development. Frequently, this even leads to commercial products. The NERD simply eliminates the scenario where the work laboratory produces is directly commercialized by these partners.

Presently, one of our industry partners is pushing for Apache-2.0. Their lawyer has said something similar to the contracting person at my university: nothing in the open source licensing realm walks the line between full commercial use and full prohibition of commercial use.

Does anyone have a good suggestion of an open-source-style license that does this, or is there a name for a category of licenses that do this?

1
  • 2
    Work with the legal department at your U. Jun 11, 2021 at 17:41

1 Answer 1

1

Open Source as defined by the Open Source Initiative is very much about being able to use the software freely, without purpose limitations. So your partner's lawyer is on point. I also like their suggestion of Apache-2, but that is a very business-friendly license.

There are of course some open-source-ish licenses that do try to rule out some commercial activities. To be clear, none of these are Open Source as commonly understood. Two relevant examples:

  • The Commons Clause is designed as an add-on for another license, and forbids the software from being “sold”, including providing a product to third parties whose value derives substantially from the covered software.

    However, this clause has seen little use, and it bans a pretty broad range of activities. It seems its primary use was to coerce Open Source users into paying customers.

  • The Creative Commons CC BY-NC and CC BY-NC-SA licenses have a “NonCommercial” module. Here, “NonCommercial means not primarily intended for or directed towards commercial advantage or monetary compensation.”

    However, the exact meaning of this is pretty unclear [1] [2]. This license is also intended for general creative works, and does not cover concepts such as source code that are important for software works.

You have a fairly accurate idea of what uses you want to allow, and which uses you don't want to allow. In particular, you do want to allow many commercial uses, you just don't want the software to be commercialized directly. In this setting, it might be best to continue to keep the software under wraps and to only share it with partners under contracts that lay out what precisely they are allowed to do.

This is veering from Law.SE into software freedom advocacy, but you could also reconsider why you want to forbid commercialization. It usually does not harm your research if your software becomes publicly available, and if companies are able to make money off this software. If such a company takes your software, they won't have a competitive advantage in the market since anyone else could also use it. By itself, source code has little value. If you are concerned about a company keeping modifications or extensions to themselves, you could also consider copyleft licenses. While these do not prevent commercial use, they discourage business models that rely on a monopoly to the source code.

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.