Subject: Re: Patent-based dual-licensing open source business model
From: Brian Behlendorf <brian@collab.net>
Date: Wed, 13 Sep 2006 20:20:29 -0700 (PDT)

On Wed, 13 Sep 2006, Ben Tilly wrote:
> On 9/13/06, Lawrence Rosen <lrosen@rosenlaw.com> wrote:
> [...]
>> What is the difference between buying a Dell computer and then downloading
>> Linux, as opposed to buying a Dell computer preconfigured with Linux? The
>> honest answer is: The second alternative offers us an opportunity for a
>> commercial license under patent law, without worrying about bit-for-bit
>> analyses or derivative work complexities. Dell is making money on that 
>> deal;
>> in our view, so should the author of the software and the inventors of its
>> embodied patents. :-)
> [...]
>
> I've stayed out of this discussion, but that paragraph epitomizes why
> I do not consider this free software, and why I expect projects like
> Debian to actively avoid these patents and any software based on these
> patents.  (Whether or not their guidelines have considered this case.)

While I find Larry's proposal intriguing, I too wonder if this really can 
qualify for a valid "Free Software Business" model, which is why we'd be 
discussing it on this list.  Certainly anyone who came up with a business 
model with the same justification (that people realizing commercial gain 
should expect to pay) but implemented as a copyright license instead (uh, 
gee, isn't that shareware?) would be told there is probably some other 
list to discuss that model on, not this one.

I also think that we're moving away from dual licensing as a viable free 
software business strategy.  I'll note that JBoss, as far as I know, has 
no significant business around dual licensing, because people aren't often 
embedding JBoss inside of commercially redistributed applications in a way 
that would violate the GPL.  Even MySQL has moved away from the popular 
perception that if you wanted to run it in production you needed their 
commercial license.  Only companies that seek to embed MySQL in their 
products and redistribute it, like Cisco does with MySQL in their routers 
for their configuration database, inescapably need to get a different 
license.  Marten can probably speak more to this, but my sense is that the 
vast majority of their revenues now are from software support, not 
proprietary-licensing-because-GPL-is-unacceptable.  Even Red Hat limits 
commercial redistributing of RHEL by limiting what you can do under a 
support agreement, not through copyright licensing; that's how CentOS can 
exist.  That 4% number that Larry quoted is, as I know of it, the 
conversion of downloads to paying support contracts, which I consider a 
pretty successful number.

I heard Zimbra has a pretty successful dual-licensing approach, some 
combination of using the MPL and selling the right to remove their 
AJAX toolkit branding from your commercial application, so your end-users 
have a less cluttered interface.

But by and large, dual-licensing is the kind of thing that VCs and MBAs 
love but the market doesn't appear to have embraced en masse.  Perhaps 
it's because the resulting IP has to all be held by one, commercial, 
licensor, and only licensed under a strong copyleft license, when the 
trends appear to be going in the opposite directions on both points.

> PS Also note that the idea of actively using patents in any way will
> cause many in the free software world to start foaming at the mouth
> and showing other signs of being unreasonable.  But you knew that.

Mitch Kapor once called patents the "weapons of mass destruction" of the 
Open Source world.  And from the perspective that they can be used as 
assymetrical weapons by previously unknown third parties to sabotage even 
very significant works built by smart and well-intentioned people caught 
by surprise and often left without a Plan B, calling them WMDs and calling 
enforcement-happy patent holders terrorists might not be unreasonable.

That's not to say that the original idea of patents are bad - as a 
limited-term monopoly on genuinely unique ideas, to promote the 
publication of those ideas rather than hiding them as trade secrets - but 
the implementation of the system has been gamed so thoroughly that its 
value to society as a whole is no longer without question.  It leaves 
those proposing the use of patents as a tool for realizing economic value 
out of Open Source software as sounding somewhat like IED merchants at an 
Iraqi bazaar.  But so long as we don't drive our Humvees into Mahdi Army 
territory, we shouldn't worry our pretty little butts about it.

 	Brian