Is the ‘commons clause’ a threat to open source?

Currently, free and open source software means anyone can modify and repurpose it for their needs. This also means that companies can take advantage of such open source software and use it for their commercial advantage. The ‘commons’ clause aims to change that and forbids monetization that mostly entails commercial use.

The case in favor of the commons clause

Companies that commercialize open source projects don’t give much back and this is an abuse of open source projects. The projects are open source for the idea to promote sharing and learning, not necessarily for tech giants to use it commercially make money from projects that were available freely. This is not illegal but can be just viewed as an abuse of open source projects where it is being used to make money without the creators/community getting anything back.

What is the commons clause?

The Commons Clause website states contributed by FOSSA, the founder and CEO is Kevin Wang. The task of drafting the commons clause was handed over to open source lawyer Heather Meeker.

It is not a license itself but an additional clause that can be added to open source project licenses. It adds a narrow commercial restriction on top of the existing open-source license. The additional clause restricts the ability to ‘sell’ the software while keeping all the original license permissions unchanged. This is in the interest of preserving open source projects and helping them thrive.

To avoid any confusion, when commons clause is added to a project, it is no longer ‘open source’ by the formal definition. Adding commons clause means the project still has many elements aligning to an open source project like free access, freedom to modify and redistribute but not sell. Basically, when commons clause is added to a project, the project can no longer be monetized.

The Commons Clause FAQ states: “The Commons Clause was intended, in practice, to have virtually no effect other than force a negotiation with those who take predatory commercial advantage of open source development. In practice, those are some of the biggest technology businesses in the world, some of whom use open source software but don’t give back to the community. Freedom for others to commercialize your software comes with starting an open source project, and while that freedom is important to uphold, growth and commercial pressures will inevitably force some projects to close. The Commons Clause provides an alternative.”

The case against the commons clause

There are discussions on various forums regarding this clause with conflicting views. So, I will try to give my views on this.

Opposers of the clause believe a software becomes propriety on applying commons clause. This means that any service created from the original software remains the intellectual property of the original company to sell.

The fear is that this would discourage the community from contributing to open-source projects with a commons clause attached since the new products made will remain with the company. Only they will be able to monetize it if they choose to do so.

On the one hand, companies that make millions of dollars from open source software and giving anything back is not in line with the ethos of open source software. But on the other hand, smaller startups and individual contributors get penalized by this clause too.

What if small companies contribute to a large open source project and want to use the derived product for their growth? They can’t anymore if the commons clause is applied to the project they contributed to. It is also not right to think that a contributor deserves 50% of the profits if a company makes millions of dollars using their open source project.

What can be done then?

The commons clause doesn't really help the open source community, it only prevents bigger companies from monetizing it unfairly. I think major tech companies can license open source software strictly for commercial use separately. Perhaps a financial profit benchmark (say $100,000) can be made for paid licensing. That is, if you make x money from the open source software, pay for a license for further use. This will help small companies from running out of money and force closing their source.

The commons clause currently is at 1.0, and there will be future revisions. It was recently adopted by Redis after Amazon using their open source project commercially. For more information, you can visit the Commons Clause website.

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