A detailed legal analysis of Prusa Research’s new Open Community License has been published.
The “OCL” was recently released by Prusa Research in an attempt to prevent competitors from using their open-source designs. However, this created a kind of paradox, where “open” was not actually open unless you weren’t a competitor. Many believe the OCL is really not open at all.
Prusa Research issued the license because true open-source licenses allow anyone to use them. The problem for Prusa Research is that competitors in low-cost Asian countries could legally use the open-source licenses to produce lower-cost products that could compete directly with Prusa Research.
Many companies don’t use open-source licenses at all for this very reason: they want to protect their inventions against copying. That’s the opposite of open-source licenses, which intend on letting anyone freely use a license, so long as the license persists.
But as companies get larger, the open-source approach simply doesn’t work. Large companies are large because they produce huge value, and that value would diminish if others used the same designs. In a way, that’s the intent of open-source licenses, but it effectively prevents companies from becoming large.
Prusa Research’s OCL attempts to get around the problem by making a closed license, with an exception for non-competitors.
But how is this done? There are plenty of words in the OCL to describe what they intend, but it has not landed properly in the community. We’ve seen continuing criticism of the OCL, and one developer even proposed the OCL is equivalent to a blank license.
Now we have an actual lawyer doing a line-by-line analysis of the OCL. Kyle E. Mitchell, “who is not your lawyer”, frequently writes on licensing and has a series of line-by-line analyses of licenses. His analysis of the OCL was published recently.
In the analysis, Mitchell points out a number of problematic areas in the OCL, which would eventually lead to legal confusion and misinterpretation. For example, the OCL’s use of “commercial” is undefined and inconsistent:
“No definition of “non-commercial”. None is coming later.
However, it’s clearly used here as a descriptor of users, rather than of uses. Whatever “non-commercial” does or doesn’t mean, that can work out easier for users if their status stays relatively fixed, and they don’t have to think about whether each particular use or project is commercial. But a lot of people cross over fluidly from personal to work and all kinds of places between, day by day.”
And then later:
“Subtle shift here: now ‘commercial’ gets used as a descriptor of purposes, rather than of users.”
These aspects may seem minor, but to a court, they are quite important and could cause unexpected judgements.
For example, due to the lack of a definition of “commercial”, courts would have to figure it out themselves, and the result may not be what Prusa Research intended:
“Without any definition of ‘commercial’ or ‘non-commercial’, US courts forced to decide whether some use is or isn’t would look around the licenses for contextual hints. One of the biggest is here: a clear association, if not strict identification, or ‘commercial’ with “BUSINESS”.
That could help organizations like charities and universities, which are rarely called ‘businesses’, but do a lot more commercial work than many suppose. That’s why the PolyForm team and I specifically addressed generally non-commercial orgs doing arguably commercial things in our noncommercial license for software.”
What’s the verdict? I encourage you to read the entire analysis, but Mitchell finishes with:
“I don’t see this as a particularly well-drafted license. The combination of both a commercial/non-commercial segmentation and share-alike terms makes it particularly complex, functionally speaking. At the same time, there’s little language here to help tame that complexity with clarity.”
Prusa Research’s intention is pretty clear; it’s just that the OCL as written might be open to misinterpretation.
Via Kyle Mitchell
