This one is something that were brought up a lot by developers including me who are very weary about corporations profiting off of our work for free and this basically put us off from contributing to open source in general.
We get a bunch of dialogues about this such as:
Developers like me: “Many of us who create are concerned about our work being exploited. The possibility of corporations profiting from our open-source contributions without giving back to the community disincentivizes us from participating in such endeavors.”
Open-Source Advocates: “The AGPL exists to mitigate such concerns. It requires derivative works to also be open-source.”
Developers like me: “While I appreciate the intention behind AGPL, there is a loophole - a ‘condom code’ if you will. Even though Linux Kernel prevents such strategies by refusing to merge these changes and that it’s difficult for a singular corporation to force an adoption of a forked version of Linux Kernel, a corporation can fork our much smaller project however and introduce such legal bypass to the copyleft restrictions. This bypass can be justified by them under the guise of extending the software’s capabilities with a plugin interface or an interprocess communication protocol layer, similar to how PostgreSQL allows User Defined Functions. However, I must caution that I’m not well-versed in the legal intricacies.”
When bringing up on non-commercial clause for licensing
Open-Source Advocates: “Disallowing commercial use of your project contradicts the principles of open-source.”
Developers like me: “Well, then perhaps we need a new term, something like ‘Open Code Project’. We can create projects that encourage collaboration and openness while also restricting commercial exploitation.”
So I created this post, because we do need to discuss on a path forward for Open Source in general knowing that corporation can shirk around this restriction and discourage developers like me from participating in open source or open code projects.
I basically take the position “you need a different, non-confusing term”. Open Code is not such a term.
My view is shaped from the cultural realm more so than the software side, but I think the concern at the centre of it is transferable: it becomes extremely messy to capture the desired acceptable uses in the legal wording of an enforceable license. The outcome is that every use will have to be individually authorised.
I was helping run and occasionally held the editor role of a leftist magazine which we decided to make Free Culture under CC-BY-SA. Content using the Non Commercial clause gave us such headache, while even though we did not charge for the magazine nor we ran adverts, we accepted and strongly encouraged donations from our readers. That money went to pay off the printing costs (the NC clause already has a problem with that, but we assumed that would still be defensible), but the rest was also invested in other endeavours like public events, or eventually helping fund a community centre.
At that point, it didn’t matter if creators with NC works released them under a supposedly free license. Our -in our opinion- non-for-profit use was still so tainted with money changing hands, that we still needed to seek their consent and get a written permission on top of the original license. At the end of the day, it was the same as working with All Rights Reserved works, where we get a special license from a sympathetic creator. The NC clause solved nothing for us.
That part is, I believe, the same with software licenses. We will end up having to get 1:1 license agreements for so many things because the new anti-commercial licenses will not be able to predict all the scenarios which are “false positives” for the anti-capitalist software developer (as in, some desirable re-uses will be blocked by the license, and individual licensing agreements will be needed often).
My focus would be to fix the loopholes that go counter to the copyleft spirit in AGPL, if such loopholes are identified, and perhaps get a more reliable organisation handle the AGPL definition in the future.