dosp-survey.ltx

to read recent research.  The license terms applied at the expiration
of these embargo periods permit the public to read articles at no
charge, but may or may not be equivalent to Open Source licensing.

\numberedsection{Conclusions}\label{conclusions}

DOSP has been in use since the early days of Open
Source.\footnote{Some of that period occurred before the term ``Open
  Source'' was coined in the context of software licensing; the term
  ``free software'' was the most commonly used term for this kind of
  licensing then.}  Companies (it's always companies) tend to use it
to preserve commercial advantage while attempting to keep as many of
the advantages of Open Source as they can.  To what extent and in what
ways they succeed in this attempt is not yet entirely clear to us, and
some of the questions in Section \ref{future} are meant to elucidate
this.  We suspect that as the delay increases, the benefits of Open
Source decrease.  Exploring the tradeoff between those benefits and
the period of exclusive exploitation might merit future research.

From our research for this report, and from our conversations with
Open Source projects and with our clients over the years, we see some
evidence that DOSP is most likely to achieve the licensor's goals for
fast-moving, cutting-edge software, where access to the latest
features is commercially significant.  For software whose year-old
versions are, for the typical user, suitable replacements for the
latest proprietary versions, the market segmentation offered by DOSP
weakens or disappears.  Those cases essentially collapse down to a
proprietary-licensing scheme with proprietary and A/GPL options.

By far the most important conclusion we draw from our research is that
there has been a \emph{lot} more experimentation and variety in DOSP
than we realized --- more projects have tried it than we knew, and
have tried it in far more varying ways than we knew.  Although there
seems to be a slight trend towards convergence recently, at least in
terms of DOSP license texts, there is no guarantee that this trend
will continue, and in any case the same licensing terms will often
lead to different outcomes for different projects.

This report should be viewed as a starting point.  We strongly hope
that qualified researchers will find opportunities to pursue some of
the questions suggested in Section \ref{future}, and that in doing so
they will discern patterns that lead them to even more important
questions that we haven't thought of.

\newpage

\numberedsection{Future Research Questions}\label{future}

\begin{itemize}

  \item \textbf{AGPL versus DOSP licensing.}

    % Sample discussion at
    % https://news.ycombinator.com/item?id=38162275 but it isn't the
    % only one.  But we plausibly don't necessarily need to point to
    % specific discussions.

    The GNU Affero General Public License (AGPL)\footnote{See
      \otsurl{https://www.gnu.org/licenses/agpl-3.0.html}.} arguably
    aims to address some of the same concerns as the BUSL or the FSL
    --- particularly concerns about some forms of free-riding by
    downstream adopters.  Instead of forbidding commercial (or
    competitive) uses, the AGPL imposes a copyleft-like requirement to
    publicly disclose and publicly license the source code of
    modifications, whenever those modifications are used to operate
    publicly-accessible services.

    The authors of this report have observed debates about the
    relative merits of the AGPL and BUSL.  Interestingly, proponents
    of each license often agreed that both licenses might, in
    principle, address similar concerns about companies adopting an
    Open Source code base --- sometimes in direct competition with the
    original developer's services --- without rewarding its original
    developer either with money or with code
    contributions.\footnote{Critics of both licenses have similarly
      argued that it might be hard to tell exactly which activities
      related to online service provision are meant to be ``caught'',
      in comparison to non-copyleft licenses.} However, the
    proponents didn't agree about which license better responds to
    this scenario; in at least some cases, that may imply a more
    basic disagreement about values and whether Open Source licensing
    is intrinsically preferable.

    Did any BUSL adopters seriously consider adopting AGPL?  If not,
    why not?  If so, why did they end up preferring BUSL's approach?

    % MongoDB was previously licensed under AGPL and then switched to
    % SSPL, which it has maintained should be considered an Open
    % Source license.  The OSI review process didn't agree, although
    % it was controversial.  Apparently from MongoDB's point of view,
    % it was just trying to shift from one Open Source license to
    % another (that would disincentivize some competitive behavior
    % that the developers found unfair or undesirable).  But from the
    % outside world's perspective, since SSPL isn't uniformly accepted
    % as Open Source, this was a switch from Open Source to
    % proprietary (and also not DOSP because there is no time period
    % after which the code reverts to a conventional license).
    % 
    % I haven't managed to find out whether it's correct that AWS was
    % offering MongoDB-as-a-service before the relicensing in 2018.
    %
    % I put in a brief reference to MongoDB's relicensing above without
    % entering into the question of the rationale or what AWS's
    % competitive offering might have been.

  \item \textbf{Effects on outside contributions.}

    How much are outside contributions affected by using (or switching
    to) a DOSP model rather than an Open Source license?  Can any
    contribution trends be clearly and confidently attributed to
    relicensing?

  \item \textbf{Taxonomy of BUSL Additional Use Grants.}

    The BUSL default is to prohibit production use, but most adopters
    of BUSL have used AUG clauses that grant permission for production
    use that doesn't compete commercially with the software
    developers' own business, or concretely that doesn't involve
    charging for access to a hosted instance of the software.

    How similar are the different formulations of this notion?  Are
    there any other permissions that appear in practice in BUSL AUG
    clauses beyond the notion of not competing with services run by or
    licensed by the upstream developer?  Is there a significant
    minority of BUSL adopters that aim to restrict (and sell licenses
    for) ``production'' use more generally?

  \item \textbf{Relicensing after initial Open Source publication.}

    Is it a conscious strategy --- or at least a conspicuous option
    --- to start out a new project under a purely Open Source license
    in order to garner interest and mindshare, and then subsequently
    relicense under a DOSP license?  Some of HashiCorp's critics noted
    that the company had given adopters incentives to become expert
    in, or otherwise reliant upon, the company's software while it was
    under an Open Source license, and then tried to benefit from that
    familiarity and adoption by changing the license terms in the
    future.

    If some of the most popular DOSP-relicensed projects had started
    out under DOSP rather than Open Source terms from the outset,
    would they have attracted the same level of interest and adoption?

  \item \textbf{Why has a fork of Terraform attracted so many
      contributions and so much interest compared to forks of other
      projects?}

    It's too early to say whether the OpenTofu project will broadly
    outcompete Terraform among various audiences, but it's clear that
    this fork started off with a bang, immediately garnering
    substantial interest, sponsorships and financial commitments, and
    endorsements from various companies and developers.  However, Open
    Source forks of other HashiCorp projects are comparatively
    stagnant and underpublicized.  Similarly, other BUSL relicensing
    events did not seem to result in highly active forks (although
    some may have increased interest in existing Open Source
    competitors to the relicensed projects).

    What's special about the OpenTofu effort, or about Terraform or
    its community, that could account for these differences?  Did
    Terraform's market share in its niche play a large role?  Was
    Terraform particularly indispensable for its users in comparison
    to some other relicensed projects?  And can answers to these
    questions about OpenTofu and Terraform be applied to other
    projects that have undergone similar relicensing schisms?

\end{itemize}

\numberedsection{Acknowledgements}\label{acknowledgements-sow}

The authors are grateful to the Open Source Initiative for giving us
the opportunity to explore this topic and to make, we hope, a small
contribution to the future health of Open Source by analyzing industry
trends likely to affect it.

Many people responded to our call for examples.  They always
accompanied their submissions with historical context, and often with
thoughtful analysis as well.  We thank them all sincerely; this report
would not have been possible without their help.  We list them here in
no particular order (in fact, in mechanically randomized order):
Matija Šuklje,
AntiCompositeNumber [sic],
Simon Phipps,
Damiano Verzulli,
Josh Berkus,
Marcin Koziej,
Alex Scammon,
Thomas Sandmann,
Royce Williams,
Ross Mounce,
Nick Vidal,
Stuart D. Gathman,
Mark Chapman,
Samuel Tardieu,
Chad Whitacre,
Johann Schöpfer,
Abby Kearns,
André Wolski,
Heather Meeker,
Neil Carpenter,
Sam Ramji,
Anthony Nowocien,
Stefano Maffulli,
and Jesse Bickel.

The authors are solely responsible for the contents of this report,
including but not limited to any errors.

% Two examples learned from https://blog.adamretter.org.uk/business-source-license-adoption/

\BLOCK{endblock}