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    That’s kind of a cool idea for a license.

    There are two things that immediately spring to mind for improvements:

    1. They should mention that this is not a FOSS license. That’s obviously an intentional feature by the authors, for reasons they consider good. It should be called out in big, bold letters that this is not Free Software. (@kemitchell I think this warrants an update to the post)

    2. When they’re saying who can use it as if it were a FOSS license, they don’t define/explain the “USD (2019)” notation. I think (with high confidence that I’m correct) they mean a figure that’s equivalent to US dollars adjusted to their 2019 value in terms of inflation, but since this is load bearing in terms of who they feel can use their software without paying, it bears explanation.

    For my own stuff that I release in a spirit similar to this, I think I still plan to just use the AGPL. But this is really a cool idea and I’m glad people are exploring it.

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      Thanks very much for these comments!

      “USD (2019)” is standard notation…for folks who deal with foreign exchange and inflation all the time. We should have anticipated that other kinds of careful, earnest readers might stumble on it. You guessed the meaning. But we shouldn’t make you guess.

      PR with revisions: https://github.com/berneout/big-time-public-license/pull/21

      I also hear you on FOSS. But I want to stay focused on expressing as clearly and succinctly as possible what this license is, rather than listing out all the things it isn’t. I definitely don’t want to burn any more cycles on the sacrificial altar of free/open definitional politics, or whose reading of whose definition rules or ought to rule. It’s a trap. We’ll never get that time back.

      I also want to gently push back on the idea that FOSS is the norm and anything arguably not-FOSS should bear some kind of label, like a poisonous household chemical or a sharp power tool. A big contributor to the scale of the open software funding crisis is the extent to which we’ve infantilized devs and insulated them from business. Commercial licensing isn’t unclean. It isn’t even exceptional, unless you’re at least one manager removed from the source of your opportunity. Keeping especially young devs’ information diets scrubbed of alternatives between MIT-free and “work for FANG” produces a lot of devs who don’t thing they have options in between.

      Devs are starting to take hints from other corners of the “creator economy”, because they’re exposed to it online, as consumers. They shouldn’t feel like they have to look outside software for that kind of model or guidance, because they don’t see those discussions happening within it, or strong implicit or explicit signs it isn’t welcome.

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        So I won’t argue with you stridently, because I very much appreciate your point. But… in general if I’m not negotiating a license with someone and I have been told I can use their work, I expect it to be either FOSS or “type my credit card # into a form and go.”

        I feel like a license that occupies a space between these positions needs to highlight that fact. If it doesn’t call that out and it doesn’t require me to enter payment info, it feels like FOSS in a deceptive way.

        This is very friendly criticism, and I think you are reading it that way, but I want to call that out for others. I think what you’re doing is good.

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          I’m glad you read my comment as I meant it. Have no fear about how I’m reading yours! And again: Thank you for time and thought. It’s nice to have a good conversation with a pseudonymous Internet presence. That was more common in “the good old days”.

          I see there’s a kind of friction here. And I must admit that’s intentional on my part. Or rather, it’s a foreseeable consequence of what I intend. The warning label you mentioned could address the consequence, but at the expense of my true end.

          I can see how your expectations could come about, based on what’s been normal for the last ten years or so, in our field. But I think that normal’s hurting us, pretty plainly, personally and collectively. So I’m trying to change the norm, to normalize what isn’t yet expected. And there’s the chafe.

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            But I think that normal’s hurting us, pretty plainly, personally and collectively. So I’m trying to change the norm, to normalize what isn’t yet expected.

            If you have the time and energy to write it out with a clear path from current licensing practices/expectations to what you think would be a beneficial new normal, I believe that would be a very interesting blog post. I’d read it, anyway.

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      I am not a lawyer but there’s no way I’d touch this license. First, it’s an EULA, it doesn’t give me any rights to modify the software, so I’m stuck with the provider as a single supplier, making it a try-before-you-buy proprietary license, not anything like a F/OSS license. Even if the terms are FRAND, this just means that they have to screw all of their customers equally. The rest of the license has a bunch of things that make me super nervous:

      You may use the software for any noncommercial purpose.

      Okay, what does that mean? If it’s a CMS, for example, can I host my blog on it? What if my blog receives ad revenue? Does that change if the ad revenue is less than the cost of hosting versus if it’s sufficient that I can quit my job? If it’s an image editing program and I create a picture with it for fun, but then a year later sell the copyright of the image for $1m, am I retroactively violating the license? Note that all of the revenue-related things are answered if I’m a small company, but not if I’m an individual. This is really fun if I produce something for free, give it to someone else, and they then sell it for a load of money - was my use now retroactively commercial?

      Previous advice I’ve received from lawyers is to avoid anything that permits noncommercial use without explicitly defining it because there are so many corner cases like this that you may discover that you’re a commercial use or, worse, a particular use may retroactively become commercial.

      Use by any charitable organization, educational institution, public research organization, public safety or health organization, environmental protection organization, or government institution counts as use for noncommercial purposes, regardless of the source of funding or obligations resulting from the funding.

      A charitable organisation is defined by law in most jurisdictions but this doesn’t mention anything about jurisdiction. There are reciprocal treaties between a lot of countries for the purpose of donation (for example, a German company gets a tax deduction when donating to a UK registered charity can claim a deduction if the charity meets the requirements of a German charity). In some jurisdictions this explicitly includes or excludes religious organisations. If my jurisdiction regards my organisation as a charity and the licenser’s jurisdiction does not, who wins?

      Educational institution is similarly poorly defined. I think we’d all agree that schools and universities probably qualify. Does PluraSight? Or LinkedIn (which includes LinkedIn Learning) and, by extension, Microsoft? Does Pearson Education (it’s right in the name!)? If my company does in-house training, is it an educational institution? If I run an online store that sell clue-bats embossed with the phrase ‘the world contains many legal jurisdictions’ for hitting lawyers with, am I an educational institution?

      Similarly, does ‘public research organization’ include anything that self-identifies as such? Including think tanks that exist solely to lobby for specific policies?

      had fewer than 20 total individuals working as employees and independent contractors at all times during the last tax year

      A company with 13 full-time employees can be pushed over this limit if they hire half a dozen contractors for an afternoon to staff a booth at a marketing event. I believe this clause excludes agency employees, so you’d be fine if you hire these folks via an agency (this adds to your compliance costs) but if that’s the case then you can defer triggering this rule by hiring as many full-time staff via an agency as possible.

      earned less than 1,000,000 USD (2019) total revenue in the last tax year

      This is probably fine for anyone in the USA (though note that it implicitly biases the license towards high-margin businesses). Not so much in the rest of the world. In the time that I’ve been paying attention, the USD:GBP exchange rate has gone over 0.8:1 and below 0.45:1. It can fluctuate by over 20% in a year. Any non-US company making over half a million USD needs to worry about this because fluctuations in exchange rate could invalidate the license. Oh, and the exchange rate to use isn’t defined. HMRC, for example, publishes exchange rates to use for tax purposes (monthly and annual averages) against GBP. I presume the IRS publishes something similar, which could have been explicitly referenced here.

      indefinitely, if the licensor or their legal successor does not offer fair, reasonable, and nondiscriminatory terms for a commercial license for the software within 32 days of written request and negotiate in good faith to conclude a deal

      Note that the clock doesn’t stop ticking during the negotiation. So first you have to notice that you’ve crossed the threshold. Easy if it’s hiring the 21st employee, a bit harder if it it’s the end of the tax year accounting for final revenue (it’s fairly common for that to take a month or more after the end of the tax year to get accountants to sign off on the end-of-year accounts and know if you’ve just crossed the threshold). By the time you know that you need to sign the letter, you’ve probably used a quarter of that time. The licenser can then make a FRAND offer in 32 days. You now have 64 days to complete contract negotiation and signing. Good luck with that if this is anything other than an off-the-shelf license agreement with a previously published price that your legal team agreed to before you started the process. If you’re not happy with the FRAND terms then the supplier just has to run out the 64-day clock before you’re in violation.

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        then the supplier just has to run out the 64-day clock before you’re in violation.

        That’s not negotiating in good faith, is it?

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          Okay, now prove that in a court of law.

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            That’s not how law works. Having a disagreement doesn’t automatically teleport you before a judge—they would really hate that. It doesn’t even land you on a call with a lawyer the overwhelming majority of the time.

            Negotiation in good faith is a magic phrase, or “term of art”, in law. The search term is “implied covenant of good faith and fair dealing”—the idea that by default, the law requires a baseline of responsibility and straight shooting from all sides to a deal. Honor the thrust of the deal.

            Big Time’s language merely makes that implied rule explicit. It also makes clear it extends to negotiation of the new terms, not just doing what’s agreed under Big Time itself. That gives folks who don’t know the legal defaults comfort that Big Time licensors can’t simply send a qualifying offers and sit on them, effectively ghosting would-be customers. If that happens, the company’s choice is to drop the software or keep using it, in reliance on the Big Time terms. If the licensor comes back and threatens to sue, the user can cite the language back at them. Negotiate. Which is the point.

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              This is the flow that I imagine:

              • A negotiation requires multiple rounds of review by both sides lawyers (from personal experience, this happens when a company buys anything)
              • Time zone differences mean that any query takes at least 1-2 days for a full round trip.
              • The lawyers on the provider side keep raising entirely reasonable (or reasonable seeming) issues with any proposed changes that the buyer requests.
              • You run out the clock and the providing company says ‘we’ve been negotiating in good faith, you are now out of time and must either agree to the terms or be violating the license’.

              Now what happens? If I keep using the software, my compliance team will be very unhappy: I don’t have a license. If FACT does an audit, I am not in compliance. If the supplier decides to take me to court for using the software without a license, then I have to prove that I do have a valid license under the terms of of the Big Time Public License, which requires demonstrating that they were not acting in good faith.

              From a corporate perspective, this looks like a big tangle of compliance risks and something that I wouldn’t even bother trying to get my compliance team to look at because they’d run screaming away from it.

              In some ways it’s easier if I’m a big company to start with because I’m definitely not covered by the Bit Time license and so need to apply for the FRAND license anyway, so there’s no risk from a license that I don’t use. If I’m a startup with acquisition by a big company as a possible exit strategy then this is the kind of thing that would show up when a potential buyer did due diligence as a big risk and make my sale price lower. If I’m an individual, I can’t afford to hire a lawyer to tell me if I’m a commercial entity or not and so I just avoid it.

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          Big Time’s noncommercial language, which descends directly from PolyForm Noncommercial, is the clearest I’ve seen in a public license. The idea that legal terms like this ought to be perfectly clear in every case is a myth. That’s not how natural language—or legal terms—work in practice.

          The “safe harbors” for personal uses and noncommercial organizations address the vast majority of truly difficult edge cases we actually hear about with Creative Commons NC. CC’s own studies on understanding of its language indicate very little utility from their extra language. So Big Time doesn’t include any.

          If a use case is arguably commercial, and the user doesn’t qualify as a small business, they should reach out for a paid license. That’s the other half of the point with Big Time. Using this license won’t make sense unless the licensor does (or did) offer paid licenses.

          As for modification, if you’re covered for “use”, you’re covered under copyright. see the Copyright License section.

          The headcount limit for small business was lowered from 100 to 20 in version 2.0.0. It’s only approximate, and it only needs to be, functioning as one of three rough proxies for bigness. If you have thirteen full-time employees and are hiring on contractors by the handful, you probably have what with to get a license. Nothing stops you from reaching out for terms before you’re clearly no longer “small”. There is a special transition time frame for companies that start out small and grow out of those limits.

          We have active discussion ongoing, including on GitHub, on adjustment of the small-business thresholds for economy size, internationally. Perhaps we might add an adjustment for purchasing power parity, atop of inflation. But it’s not altogether clear yet whether that’s what developers would want.

          The most important thing we’re hearing is that devs definitely want to sell to big, well known firms and kinds of firms that ought to be paying, like banks and startups who’ve raised millions. Not that they want to draw a particularly fine line between different degrees of small. All of our “small business” thresholds clearly put the big firms of concern out-of-bounds for free small-business use.

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            in the last tax year

            Also .. in which tax year? Here in Russia the tax year runs from January 1st to December 31st, but e.g. in the UK it ends some time in April.

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              Could that language to make sense without referring to the tax year where the company pays tax?

              Привет из Калифорнии! Счастья и успеха в новом, 2022-м году!

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                This is part of a recurring problem with the license: it does not mention jurisdiction and makes a load of US-centric assumptions. This phrase would be better if it included an explicit note that it happened within the tax year of the organisation receiving the license. Without that, there are problems if I am under $1m over my tax year but it isn’t evenly distributed and so in the seller’s tax year I am over. Am I violating the license?

                All of that said, to your question:

                Could that language to make sense without referring to the tax year where the company pays tax?

                Absolutely yes. Because for most companies the thing that matters is the accounting year (which may be different for each company) and not the tax year (which is defined by statute in each jurisdiction). That defines a point in time each year at which all accounts must be reconciled and, for publicly traded companies, the point at which they must report earnings.

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                  Even companies that define their own accounting year have to prepare accounts for the tax year, in order to pay their tax. This isn’t a US-specific phenomenon. Companies pay tax everywhere. Do you know of a country that requires tax reporting for other than a defined, year-long period?

                  The point of using tax year in the terms was to use the measure companies will already have. Plenty of companies only do accounting on the tax year. Those that also do other accounts still have to do tax accounting. I believe that’s true even if the self-defined tax year dominates conversations about external reporting or internal compensation and budgeting.

                  I certainly don’t think I agree that this language could refer to the seller’s tax year:

                  You may use the software for the benefit of your company if it meets all these criteria: … 2. earned less than $1,000,000 total revenue in the last tax year

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            Hopefully not hijacking the thread, but is there a dual licensing like: MIT / MIT but pay me 1k per year?

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              I recently published a blog post very close to your question: https://writing.kemitchell.com/2022/01/21/MIT-for-Noncommercial.html

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                I probably wasn’t clear, but I meant was that I don’t care if company chooses to use MIT license and doesn’t pay me. I guess if this is the case, paid support sounds better than another license.

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              Is this the first time someone has version-bumped a semantically versioned license?