Fair Source Licenses
Discussion
Paul Sawers:
"For now, the main recommended fair source license is the Functional Source License (FSL), which Sentry itself launched last year as a simpler alternative to BUSL. However, BUSL itself has also now been designated fair source, as has another new Sentry-created license called the Fair Core License (FCL), both of which are included to support the needs of different projects.
Companies are welcome to submit their own license for consideration, though all fair source licenses should have three core stipulations: It [the code] should be publicly available to read; allow third parties to use, modify, and redistribute with “minimal restrictions“; and have a delayed open source publication (DOSP) stipulation, meaning it converts to a true open source license after a predefined period of time. With Sentry’s FSL license, that period is two years; for BUSL, the default period is four years.
The concept of “delaying” publication of source code under a true open source license is a key defining element of a fair source license, separating it from other models such as open core. The DOSP protects a company’s commercial interests in the short term, before the code becomes fully open source.
However, a definition that uses vague subjectives such as “minimal restrictions” can surely cause problems. What is meant by that, exactly, and what kinds of restrictions are acceptable?
“We just launched this a month ago — this is a long play,” Whitacre said. “Open source [the OSI definition] has been around for 25-plus years. So some of this is open for conversation; we want to see what emerges and pin it down over time.”
The flagship fair source license follows a similar path to that of “source available” licenses before it, insofar as it has noncompete stipulations that prohibit commercial use in competing products. This includes any product that offers “the same or substantially similar functionality” as the original software. And this is one of the core problems of such licenses, according to Thierry Carrez, general manager at the Open Infrastructure Foundation and board member at the Open Source Initiative: Much is open to interpretation and can be “legally fuzzy.”
“Fair source licenses are not open source licenses because the freedoms they grant do not apply to everyone; they discriminate based on legally fuzzy noncompete rules,” Carrez said. “So, widespread adoption of those licenses would not only create legal uncertainty, it would also significantly reduce innovation going forward.”
Moreover, Carrez added that there is nothing preventing the terms in fair source licenses from changing in the future, highlighting the problem of a license controlled by a single entity.
“There are two approaches to software development: You can have a proprietary approach, with a single entity producing the software and monetizing it; or you can have a commons approach, where an open ecosystem gathers around producing software and sharing the benefits of it,” Carrez said. “In the proprietary approach, nothing prevents the single copyright-holder from changing the terms of the deal going forward. So the exact terms of the license they happen to currently use do not matter as much as the trust you put in those companies to not change them.”
In many ways, fair source is simply an exercise in branding — one that allows companies to cherry-pick parts of an established open source ethos that they cherish, while getting to avoid calling themselves “proprietary” or some other variant.
Amanda Brock, CEO of U.K. open source advocacy body OpenUK, said that while it’s “great to see people simply being honest that [their software] is not open source,” she suggested that this new category of license might just complicate matters — particularly as there are already well-established names for this kind of software.
“We must shift thinking to consider three categories of software not two; OpenUK has been advocating for some time that we do this,” Brock told TechCrunch. “Within open source, we call the category that is proprietary with source that is public, as ‘source available’ or ‘public source.’ It is any code that makes [the] source [code] available, and which is distributed on a license that does not meet the open source definition.”