Mercurial loses a developer
| From: | "Bryan O'Sullivan" <bos-AT-serpentine.com> | |
| To: | Mercurial mailing list <mercurial-AT-selenic.com> | |
| Subject: | Why I am no longer working on Mercurial | |
| Date: | Fri, 30 Sep 2005 14:40:55 -0700 | |
| Archive-link: | Article, Thread |
As I mentioned the other day, I will not be contributing to Mercurial development for a while. Several people have asked me why. At my workplace, we use a commercial SCM tool called BitKeeper to manage a number of source trees. Last week, Larry McVoy (the CEO of BitMover, which produces BitKeeper) contacted my company's management. Larry expressed concern that I might be moving BitKeeper technology into Mercurial. In a phone conversation that followed, I told Larry that of course I hadn't done so. However, Larry conveyed his very legitimate worry that a fast, stable open source project such as Mercurial poses a threat to his business, and that he considered it "unacceptable" that an employee of a customer should work on a free project that he sees as competing. To avoid any possible perception of conflict, I have volunteered to Larry that as long as I continue to use the commercial version of BitKeeper, I will not contribute to the development of Mercurial. As such, Mercurial can stand entirely on its own merits in comparison to BitKeeper. This, I am sure, is a situation that we would all prefer. <b
(Log in to post comments)
Mercurial loses a developer
Posted Oct 1, 2005 0:34 UTC (Sat) by arcticwolf (guest, #8341) [Link]
What, a supplier tells a *customer* what they can and cannot do? Isn't it usually the other way around?
Not that this kind of behaviour is a surprise considering who it's coming from, of course, but I *am* surprised that Bryan gave in to it.
It's probably a good thing that despite Matt Mackall's lobbying for Mercurial on lkml, kernel development has continued with git.
Mercurial loses a developer
Posted Oct 1, 2005 0:49 UTC (Sat) by jake (editor, #205) [Link]
> It's probably a good thing that despite Matt Mackall's lobbying for Mercurial on lkml, kernel development has continued with git.
I don't know why you would think that BitMover wouldn't make the same phone call to the employer of any git developer who used BitKeeper at work as well ... it doesn't seem like a Mercurial specific problem to me ...
jake
Mercurial loses a developer
Posted Oct 1, 2005 1:48 UTC (Sat) by drag (guest, #31333) [Link]
Although none of this makes any sense to me.. Why would simply using software from one source be a commercial risk if a person develops a different product on the side?
It doesn't make sense.
Although after pausing and coming back this little tidbit is interesting:
"To avoid any possible perception of conflict, I have volunteered to
Larry that as long as I continue to use the commercial version of
BitKeeper, I will not contribute to the development of Mercurial."
Maybe he's hinting at that maybe they won't be using the commercial version of bittkeeper for much longer?? I hope so.
After reading this I wouldn't want to touch bitkeeper with a ten foot pole.
Not for Long
Posted Oct 1, 2005 5:33 UTC (Sat) by ncm (subscriber, #165) [Link]
I think drag has hit it. Nobody likes to be pushed around by one's software vendor. Mr. O'Sullivan himself might be switching his employer to a system that doesn't subject them to threatening phone calls. It makes me wonder, though, if his employer doesn't just resent his moonlighting on a Free Software project. Or maybe Mr. O'Sullivan doesn't plan to stay long with an employer so willing to be pushed around by its vendors. Perhaps he has found work helping users of other systems migrate to more modern ones and away from legally hazardous ones.Donning the tinfoil hat for a moment, I wonder if this isn't all a puckish game cooked up by Linus and Larry to provoke people. Larry doesn't need the money, and he actually does have (or once had) a sense of humor.
Not for Long
Posted Oct 2, 2005 2:32 UTC (Sun) by huffd (guest, #10382) [Link]
Donning the tinfoil hat for a moment, I wonder if this isn't all a puckish game cooked up by Linus and Larry to provoke people.Amazing, that itch I get behind my left ear just before I discover a new conspiracy, kicked into overdrive just moments before reading the above quote. I'll withhold my thoughts on this for now, but you'd be correct in a different timeframe, say a few years ago. Given the outcome of recent events it gets harder and harder to put it past either one of them.
Not for Long
Posted Oct 2, 2005 22:09 UTC (Sun) by aya (guest, #19767) [Link]
Sorry, what does Linus stand to gain from Larry's pissing people off?
What Linus stands to gain
Posted Oct 5, 2005 5:49 UTC (Wed) by xoddam (subscriber, #2322) [Link]
Amusement value, mostly. Walk the plank, landlubbers! Etcetera, arrr.
Mercurial loses a developer
Posted Oct 1, 2005 1:23 UTC (Sat) by TwoTimeGrime (guest, #11688) [Link]
> What, a supplier tells a *customer* what they can and cannot do? Isn't it> usually the other way around?
Read the EULAs for your software at work lately?
Interesting question
Posted Oct 1, 2005 5:22 UTC (Sat) by Ross (guest, #4065) [Link]
Which brings me to the interesting question of who is agreeing to EULAs on company software installed on company equipment. The company, the employee, or both?
I've recently decided to stay away from crappy EULAs, which is most of them, since they have been enforced against me. However I had assumed by employer's software was their own problem.
Do I now have to argue with my manager, the IT staff, and possibly lose my job if I don't want to "sign" away my rights by installing something at work?
Interesting question
Posted Oct 1, 2005 5:54 UTC (Sat) by Duncan (guest, #6647) [Link]
Well, pretty much, yes. The employer makes the pledge on behalf of thoseworking for it. In many cases, agreeing to abide by company policy, which
would include company policy regarding software they've signed EULAS for,
would be part of the employment contract/agreement. Even where it isn't,
the employer then has the choice of keeping the violating employee, or
continuing to use the software (and abiding by any clauses that survive
the termination of use of said software, no-compete clauses for a year or
whatever), or being sued. Guess which choice the employer is likely to
take?
Now, Larry McV has a reputation for taking this rather farther than at
least most in the FLOSS community can stomach, farther than other software
might, but regardless, one in that situation must be prepared to choose
between keeping their current job and keeping their current hobby, as
history HAS demonstrated that Larry is rather active in pursuing such
"violations" of his "license", and no company yet has been willing to
stand upto it and see who wins if it goes to court. (OSDL went farther
than others have, by refusing to kill Tridge's contract, but they ended up
losing the use of BitKeeper in the process. IMO, while the use of
BitKeeper did advance the kernel for a time, given Larry McV's attitude
vs. that of many kernel contributors, it had to happen some time, and when
it happened was as good a time as any. Glad the separation is over with
now!)
I think there are a lot in the community that wouldn't touch BK now, or
work for a company that did. That may or may not be BM's loss, but it's
certainly due to BM's attitude. Larry's obviously gambling that this
policy will be effective enough in keeping the FLOSS competition behind
him that it'll outweigh any loss from businesses choosing coders over his
product. Regardless of whether one believes in the inalienable rights of
Free Software or not, one must admit that as with other proprietary
software companies, the law is currently on Larry's side, giving him the
legal right to make those demands in exchange for use of his product,
regardless of whether he has the moral right to do so or not (given the
arguably inalienable rights of Free Software).
Duncan
Interesting question
Posted Oct 1, 2005 6:53 UTC (Sat) by Ross (guest, #4065) [Link]
It seems you are assuming there is a company policy on EULAs. The extent of that policy is that the legal department has to approve of software licenses before purchase. It doesn't say anything about the employee acting for themselves or as an agent of the company. If I had to agree to MS EULAs personally I'd be put in a very difficult position. I don't want to quit my job and trying to fight something like the requirement to run Windows due to licensing terms is pointless (and I even work for a MS competitor) and would look completely silly.
Mercurial loses a developer
Posted Oct 1, 2005 3:02 UTC (Sat) by rknop (guest, #66) [Link]
If the world had been like this 20 years ago, there'd be no GNU or Linux today. After all, RMS started writing replacement tools for Unix more than 10 years before Linux came on the scene, all the while using the proprietary operating systems that he eventually intended to make obselete. And when Linux came on the scene, it had that long history of GNU tools to lean in to make a fully functional free operating system.
If the Unix vendors at the time had a sense of what was coming, they'd probably have pulled a Larry.
-Rob
Mercurial loses a developer
Posted Oct 1, 2005 1:51 UTC (Sat) by jcm (subscriber, #18262) [Link]
I said for a long long time that BitKeeper would end in tears, and it did. But to add insult to injury, this kind of activity just seems to rub the whole thing right in our faces. This is behaviour I would not even expect to see coming from Microsoft, but it's an encouragement for those people.
I've used BitKeeper at work in my previous company. Fortunately, I'm now in a position to actively recommend against use of BK for this and similar reasons (sometimes it's not so much about the technology as doing the right thing - better to use git and live without the flashy interface). BitMover can sell plenty of product without calling up people and having this kind of conversation but they apparently choose not to do so.
Jon.
Mercurial loses a developer
Posted Oct 1, 2005 1:54 UTC (Sat) by jstAusr (guest, #27224) [Link]
Don't miss the next exciting episode of the Larry and Darl show. Will they be able to join forces to strangle the little bird-fish or will they be stuck on thin ice. Who will be their next target? Maybe the little devil? Find out in the next episode, same LWN channel, same GNU time.
One thing is certain for me
Posted Oct 1, 2005 3:14 UTC (Sat) by bojan (subscriber, #14302) [Link]
If anyone ever asks me about BitKeeper, I will tell them to stear clear of that crap - it's too poisonous to touch.
This whole thing is a good lesson to many people: read your EULAs carefully, because all kinds of idiotic promises are being asked. And this is not just related to BK/LM. Companies like Cisco ask you to promise to spy on people if you want to download their software.
So, one thing is certain me. Wherever and whenever I can, I will propose to replace proprietary software with open source. Less headache, more freedom.
Mercurial loses a developer
Posted Oct 1, 2005 4:01 UTC (Sat) by sbergman27 (guest, #10767) [Link]
Larry, despite his past care-free statements regarding how impossible it was for any open-source project to catch up with Bitkeeper, seems to have a very real worry about the possibility today. Perhaps Bitkeeper getting replaced by "git" in just a few weeks got his attention.
The message going out is that while it might take millions of dollars and years of time to come up with a generalized solution, developing a specific solution to a specific problem, or even a "good enough" solution to most problems, can take a few weeks, and be more cost effective. (And more effective, for that matter.)
Bitmover's legitimate business is all about corner cases. The rest Bitmover has roped in through other means.
McVoy may be in for a his worst nightmare. (And that does seem to be on his mind quite a lot.)
Mercurial loses a developer
Posted Oct 1, 2005 4:23 UTC (Sat) by drag (guest, #31333) [Link]
It's the classic developement in-house vs get a off-the-shelf product. Been going on for years. People get tired of supporting their own buggy creations made by overworked staff, then it becomes fasion to buy big projects, then the cost overruns, overhype, and empty promises drive them back to in-house solutions. rinse, repeat.. All very expensive, all a pain in the ass.
Maybe that's the partially why open source development model is such a success. You get a product that is probably still fairly small, or hopefully modular, that you can modify to fit your needs easily and quickly. In addition it's backed up by the distinct likelyhood that you'd be able to hire outside developers or, god forbid, consultants that are familar with it if need be.
So it's maybe the best of both worlds and avoids most of the pitfalls of either.
Mercurial loses a developer
Posted Oct 1, 2005 5:27 UTC (Sat) by Ross (guest, #4065) [Link]
Actually this isn't the first time he's enforced these rules and he's been saying they would be enforced for a while so there's no reason to be surprised. Though I agree he may now have more motivation than ever to do so.
I really wonder if he can pursue this developer legally. My question above about who exactly is a party to the EULA is really the key. Might be worth talking to a lawyer... especially if this developer ever leaves his current position and wishes to restart participation in SCM projects.
Also, is there a termination clause or is a person forever prevented from competing with BitKeeper if they use it, even once? Contracts which last forever have been found to be invalid, and many states have laws restricting non-compete agreements to short periods of time without fair compensation to the person who can't work in their field.
Mercurial loses a developer
Posted Oct 1, 2005 12:24 UTC (Sat) by sbergman27 (guest, #10767) [Link]
Good SCM is important enough that it would not be too surprising if the bigger, deeper pocketed OSS players decided to get involved if Bitmover goes too far. (I believe that in the past they have talked about pressing patent suits if anyone gets too close, or even implementing encryption so that they can use the DMCA.)
It would be interesting to see Bitmover on the bad end of a flurry of patent violation suits from, say, IBM.
Mercurial loses a developer
Posted Oct 3, 2005 7:14 UTC (Mon) by Wol (subscriber, #4433) [Link]
Note he did say "he wouldn't work on Mercurial while his employer used BitKeeper".
In other words he doesn't feel beholden to any non-compete that goes even minutes beyond the cessation of the relationship. If his employer dumps BK one day, he'll be back with Mercurial the next.
At the end of the day, whether we like Larry's stance, my feeling is that he has been open and consistent about what his intentions and motives are, and he's acted on them. This sort of thing was pretty obvious from day one, and nobody should be saying they're surprised.
Cheers,
Wol
Mercurial loses a developer
Posted Oct 3, 2005 18:21 UTC (Mon) by piman (guest, #8957) [Link]
> whether we like Larry's stance, my feeling is that he has been open and consistent about what his intentions and motives are, and he's acted on them.
Which is why he change the license repeatedly to make it more restrictive, eventually dropped the free version, and then started going after commercial users.
Larry's only been open and consistent if you classified him into "software hoarder" from the start, and few people did.
Mercurial loses a developer
Posted Dec 21, 2005 6:31 UTC (Wed) by amikins (guest, #451) [Link]
> Which is why he change the license repeatedly to make it more restrictive, eventually dropped the free version, and then started going after commercial users.
There is a consistency here; he changed the license repeatedly to remove what were effectively loopholes in his very clearly stated purpose. The removal of the free version was because he found that there was no way to prevent someone from accomplishing what he didn't want accomplished as long as there -was- a free version.
Ultimately, this path only happened because McVoy was too -optimistic- that people would do things 'his way' without a chain link fence with barbwire on top.
While I don't agree with the steps he's taken, they are logical reactions to events that have occurred given his goals as a proprietary software developer.
Ultimately, the problem is that he was trying to convince everyone -- even himself -- that he wasn't a proprietary software developer, and that's why we are where we are.
How can McVoy enforce this kind of crap?
Posted Oct 1, 2005 5:15 UTC (Sat) by dskoll (subscriber, #1630) [Link]
Let's say Person X works for Corporation Y, and X has an understanding withY that he's allowed to work on non-competing Free Software projects.
Now suppose Corporation Y buys Bitkeeper. I can't see how Bitmover can
have any leverage over what kind of free software X develops. After all,
Bitmover's agreement is with Corporation Y. Person X is not a party to
that agreement at all, and has no responsibility to Bitmover (beyond
the normal not-violating-Bitmover's-copyright, of course.)
This is really an ugly move on McVoy's part.
How can McVoy enforce this kind of crap?
Posted Oct 3, 2005 16:10 UTC (Mon) by southey (subscriber, #9466) [Link]
Easy because is it probably part of the license agreement signed by Corporation Y and, thus, by all current employees of Corporation Y. Employees are parties to the agreement because the terms of their employment would have something about upholding the Corportations values, interests etc. that makes any employee party to anything the Corporation does. The only way out is to leave Coporation Y unless Person X can change the Corporation's policies.
An 'understanding' is not sufficient unless it is a signed document that clearly states what is being done. Person X would be silly not to have this anyhow as it is the only way to protect themselves.
I do not see why this is 'ugly' as 'McVoy's part' is to act in the interest of his company. This is really a matter of someone ensuring the terms of the license are being followed.
How can McVoy enforce this kind of crap?
Posted Oct 3, 2005 17:31 UTC (Mon) by dskoll (subscriber, #1630) [Link]
Easy because is it probably part of the license agreement signed by Corporation Y and, thus, by all current employees of Corporation Y. Employees are parties to the agreement because the terms of their employment would have something about upholding the Corportations values, interests etc. that makes any employee party to anything the Corporation does.
I doubt that. Employees are not parties to agreements made by their employer with suppliers. They may be bound by certain rules if they are spelled out in the agreement (eg, most Non-Disclosure agreements compel corporations to enforce certain employee behaviours), but this sounds way too broad.
How can McVoy enforce this kind of crap?
Posted Oct 4, 2005 4:29 UTC (Tue) by aotheoverlord (guest, #3993) [Link]
Actually, most employees sign an agreement with their employer that signs over all code written by said employee to the employer(*). It's the reason that many GNU projects require copyright assignments signed by a contributor's employer before they will accept code from that person.
Assuming such an agreement exists between this employee and his employer, then it would stand to reason that code contributed to Mercurial is actual "owned" by the employer which is therefore in violation of the BitKeeper license the company has with Larry.
(*) While I doubt this has been tested in the courts, this usually extends beyond code written by the employee expressly for the employer, and includes all code written, including that written in the persons spare time. Be careful what you sign the next time you take a new job!
Mercurial loses a developer
Posted Oct 1, 2005 6:48 UTC (Sat) by nurhussein (guest, #16226) [Link]
Does the paid-for version of BK also come with the non-compete clause license? I recall it didn't, though I might be wrong.
Mercurial loses a developer
Posted Oct 1, 2005 7:14 UTC (Sat) by huaz (guest, #10168) [Link]
Yeah, my impression is also as long as you pay for the commercial license, you are not bound by the clause.
Otherwise, Larry would be an asshole and the company would be an idiot.
Mercurial loses a developer
Posted Oct 1, 2005 7:49 UTC (Sat) by piman (guest, #8957) [Link]
Well, you're not bound by it, apparently you're just 'politely' asked to stop...
The free version no longer exists
Posted Oct 2, 2005 3:52 UTC (Sun) by JoeBuck (subscriber, #2330) [Link]
... so it appears BitMover is now harrassing buyers of the commercial version.
Didn't once, does now
Posted Oct 1, 2005 8:09 UTC (Sat) by ncm (subscriber, #165) [Link]
Larry is infamous for changing license terms after the fact. He used to say that if you wanted to work on the competition, you needed a paid-up license. Then he said if anybody at the company did, it needed a paid-up license. Then he said he wouldn't sell you one. After he had lots of customers good and locked-in, he started threatening not to renew existing paid-up licenses. That's where we stand now.If it weren't so mean-spirited it might look like a big jape.
So, does this make Larry an [expletive deleted], and his customers idiots for tolerating it, as huaz suggests? I guess that's up to each of us to decide.
Didn't once, does now
Posted Oct 1, 2005 12:36 UTC (Sat) by BrucePerens (guest, #2510) [Link]
Thank you, Linus, for helping to inflict Larry on the world. It's not as if we didn't tell you...Nobody would have been working on Mercurial in the first place, if Larry had not been so Mercurial.
Well, I sent the engineers in my company a note that bitkeeper isn't safe to touch.
Bruce
Didn't once, does now
Posted Oct 1, 2005 12:54 UTC (Sat) by maney (subscriber, #12630) [Link]
Thank you, Linus, for helping to inflict Larry on the world. It's not as if we didn't tell you...From the Panglossian perspective, it has resulted in a truly great example of the problems that can arise when you're at the mercy of an unethical proprietary software vendor, no?
Didn't once, does now
Posted Oct 2, 2005 2:46 UTC (Sun) by huffd (guest, #10382) [Link]
From the Panglossian perspective, it has resulted in a truly great example of the problems that can arise when you're at the mercy of an unethical proprietary software vendor, no?Well, yes of course but hindsight shows us there might have been a better incentive than just optimistically helping a friend. Consider this, had public opinion played out a little differently, anyone who worked on the kernel might have had to cough up the money for a license, had the outcry of wrong doing not hit a fever pitch. Linus could have said, fine, it's a great product we aren't changing, we'll pay.
Which may have been the plan all along.
Didn't once, does now
Posted Oct 2, 2005 16:13 UTC (Sun) by jstAusr (guest, #27224) [Link]
> Which may have been the plan all along.
Linus has stated that he doesn't like getting involved in political issues. Turning that into a conspiracy is just ludicrous. I think its just a matter of him thinking that spending time with such efforts adds nothing to producing a proper kernel. You seem to forget that he layed the foundations for git within days after the Bitkeeper problem.
RMS has stated that he doesn't like dealing with political issues but that they are important and someone needs to do it. The truth of the need for his efforts seems to be proved over and over by the likes of SCO, Bitmover and many others.
Linus may not see eye to eye with the goals that RMS has, but I do hope that he will see that it is an effort that just can't be avoided and be glad that RMS is doing it.
Mercurial loses a developer
Posted Oct 1, 2005 19:07 UTC (Sat) by vblum (guest, #1151) [Link]
This stinks unbelievably. Copyright fears would be one issue, and that's legitimate. Preventing someone from taking an idea and implementing it somewhere else is quite another thing. Fine, if patents were involved, that's at least legal.
I used to think Larry was a nice guy, if maybe a bit on the paranoid side regarding his business model Now I do not think so. Demanding that your customers refrain from using their brain, unless in a manner that LM approves of, is not right. It's far worse than what e.g. M$ has demanded so far.
Larry, I might one day have considered using Bitkeeper, it had a good name for me. Now, I don't think so anymore. Never will I touch a product that attempts to restrict my ability to develop what I need later. I just hope that THIS particular business model goes down in flames, as it should.
Mercurial loses a developer
Posted Oct 1, 2005 19:49 UTC (Sat) by sbergman27 (guest, #10767) [Link]
The main thing to note is that the proprieter of Bitmover, who is in a postition to know, is increasingly uncertain of Bitkeeper's ability to stay ahead of the competition on its own merits. Otherwise, such heavy-handed actions would not be deemed necessary. Actions speak louder than words, and Bitkeeper has spoken.
The Linux Kernel guys have, remarkably quickly, extricated themselves from Bitmover's tendrils. That example is there for the world to see. Open-Source SCM systems are experiencing a renaisance.
I'm expecting that at some point the rest of us, meaning those who do not happen to be the proprietor of Bitmover, are going to have to wear shades... ;-)
Mercurial loses a developer
Posted Oct 2, 2005 1:03 UTC (Sun) by man_ls (guest, #15091) [Link]
I used to think Larry was a nice guyIt would seem that he played mister nice guy to free software developers while he had an interest in them. Now that you are of no use to him or his company, he can spend his energies protecting his way of life. While understandable, it is quite disgusting to watch.
Mercurial rules
Posted Oct 1, 2005 19:26 UTC (Sat) by karim (subscriber, #114) [Link]
I haven't seen a comment about this yet, so here:
This only further goes to show how good Mercurial is. Keep it up guys.
Karim
Mercurial loses a developer
Posted Oct 2, 2005 2:47 UTC (Sun) by emak (guest, #488) [Link]
What about this concept called 'freedom' ?
Freedom?
Posted Oct 2, 2005 8:10 UTC (Sun) by freddyh (guest, #21133) [Link]
You've probably seen too much of Braveheart lately ;)
FreddyH
(who has suddenly lost all interrest in using BK, or for that matter: anything developed by BitMover)
Mercurial loses a developer
Posted Oct 2, 2005 10:20 UTC (Sun) by peschmae (guest, #32292) [Link]
ESR replaced that with 'Open' - as in open to bullshit produced by proprietary software vendors ;-)
Mercurial loses a developer
Posted Oct 2, 2005 19:24 UTC (Sun) by frankie (subscriber, #13593) [Link]
I would expect that Bill Gates will call all Linux/BSD developers who use Windows at work and express the same worries.Bitkeeper CEO smokes crack, really.
Mercurial loses a developer
Posted Oct 3, 2005 8:14 UTC (Mon) by eru (subscriber, #2753) [Link]
I would expect that Bill Gates will call all Linux/BSD developers who use Windows at work and express the same worries.Please don't give him ideas...
Mercurial loses a developer
Posted Oct 2, 2005 19:33 UTC (Sun) by cventers (subscriber, #31465) [Link]
I know it's not likely to make a huge amount of difference, but I'm goingto email this BitKeeper crackhead and give him a piece of my mind. I'd
suggest everyone else do the same.
Mercurial loses a developer
Posted Oct 2, 2005 20:08 UTC (Sun) by gowen (guest, #23914) [Link]
It won't make the slightest difference. Larry's not just immune to public approbium, it just makes him more convinced he's right. He'll just end up telling you that SCM is simply too hard for mere humans to understand, and that he's preventing O'Sullivan from working on a BK alternative for the sake of Bryan's own sanity.
Mercurial loses a developer
Posted Oct 3, 2005 8:56 UTC (Mon) by peschmae (guest, #32292) [Link]
That would be equal to admitting that he is insane - which he sure won't do.
Mercurial loses a developer
Posted Oct 3, 2005 18:59 UTC (Mon) by gowen (guest, #23914) [Link]
Oh no. It's only non-BM employees who aren't bright enough to solve the difficult problem of SCM.
Would appreciate getting copy of BK/Pro no-compete clause
Posted Oct 3, 2005 17:53 UTC (Mon) by rickmoen (subscriber, #6943) [Link]
Everyone seems to be surmising that the BKCL (licence of the commercial version) has recently gained a non-compete clause similar to what the BKL had. The inference seems reasonable, but would be good to confirm. Would someone who's a commercial licensee be good enough to e-mail me that paragraph from the "bk bkcl" output (or whatever BK directive is required, these days)?
I ask in part because I track the history of SCMs available for Linux, and do comparative analysis of proprietary Linux apps' licenses on my Web site. It would thus be useful to get the exact text of Larry and co's recent changes.
Some the firms involved, over the years, have objected to my posting licence excerpts (or entire licences) as part of analyses on my site, a couple going so far as to assert copyright infringement. While I'm sympathetic to their concerns about commercial rights and marketing position, I do think the legality and propriety of licence analysis is well established, on several grounds. (Please pardon USA-centrism in the following; it's the applicable law in this case.)
- I doubt that the judge in any likely tort action would rule a software licence to qualify as a "creative work" at all, within the meaning of that term in copyright law. Mere text is not copyrightable at all (Harper and Row, Publishers, Inc. v. Nation Enterprises; Feist Publications, Inc. v. Rural Tel. Serv. Co.) and some degree of creativity must be present (1 M. Nimmer and D. Nimmer, Copyright ss 2.01[A], [B]).
- Purely functional elements in an alleged creative work are not subject to copyright encumbrance (Sega Enterprises v. Accolade, Inc.; NEC v. Intel). It strikes me that a software licence consists of nothing but functional content.
- Usage for in criticism, reviews, news reporting, teaching, or research (with the strength of your claim depending on other factors, such as whether your usage was non-profit, the nature of the copyrighted work, the amount and fraction of your excerpt, and the effect your usage has on the market for the original work) is of course lawful as a result of the "fair use" defence (e.g., see Sega case).
No firm has thus far attempted legal remedies after I've politely pointed the above out. Although I'm not an attorney (and nobody else should take personal or business stances based on nothing better than my analysis, please), it strikes me that this is because the complaining parties either didn't know the law or were bluffing quite shamefully.
Baseless legal threats tend to work extremely well against computerists, I've noticed -- copyright demands and trademark-infringement claims, mostly. A cynic might speculate that that's why they're attempted so often. It would be refreshing if they were to not prevail quite so readily. (Of course, this will require computerists to be more consistently careful about their stances and research thereof.)
Anyhow, the clause in question, if present, probably includes the phrase "this License is not available to You if You and/or your employer develop, produce, sell, and/or resell a product which contains substantially similar capabilities". I'd appreciate anyone having access to the licence e-mailing me the paragraph that contains that wording or similar in BK/Pro v. 3.2.6 (current) or other recent versions -- or would write to me saying no such clause is present.
Rick Moen
rick@linuxmafia.com
Would appreciate getting copy of BK/Pro no-compete clause
Posted Oct 3, 2005 18:42 UTC (Mon) by rickmoen (subscriber, #6943) [Link]
Oh, I forgot to mention: Tort law also provides for an equitable defence called "copyright abuse", under which a court can declare the work's entire licence unenforceable on account of such things as unreasonable, anticompetitive non-compete clauses, even where the infringing acts are totally unrelated to the non-compete clause itself, and even where there is a severability clause. See: Lasercomb Am., Inc. v. Reynolds, 911 F.2d 970 (4th Cir. 1990)
That's one of the reason why such clauses are a double-edged sword, and must be drafted very carefully to avoid anticompetitive language.
Whether any proprietary software for Linux of interest contains anticompetitive language I leave as an exercise for the reader.
Rick Moen
rick@linuxmafia.com
Probably not in the license text...
Posted Oct 6, 2005 7:27 UTC (Thu) by ncm (subscriber, #165) [Link]
I haven't seen the current text of BitMovers's license, but Larry insists it hasn't changed in a long time. My impression is that his threats are not of the form, "you are violating the license by allowing your employee to compete with me, and I am within my rights to revoke it". Rather, they are of the practically equivalent (husky-voiced) form, "your conduct is not up the the standards we expect of a BM licensee, so we are seriously considering not offering to renew your license when it expires."This is along the lines of "we reserve the right to refuse service to anyone" café and bar signs, and the first-amendment (U.S.) constitutional right to Freedom of Association, and whatnot. Anyone so threatened by Larry would be well-advised to notify him by indignant registered letter of any minority (and female majority) members on staff, and remind him that they are as deserving of service as anyone else (or else). Then, of course, migrate with all due speed from BK to a system that does not subject one to such threats.