Share-revenues as an alternative to Non-commercial
David Christie
dc at samizdat.org
Tue May 3 17:13:53 EDT 2005
I've been lurking on this list for a while and reading the archives. This is
my first post. I'm primarily interested in innovative open-source software
licenses.
Has anyone here been involved in discussions of an alternative to the CC
Non-commercial license, analogous to the way Share-alike is an alternative
to No-derivatives?
I'm thinking of something like "Share-revenues", designed to (a) grant
commercial rights, but (b) oblige commercial users to share part of their
revenue with the copyright holder.
Please point me at any discussions or innovative licenses that may relate to
this.
The devil is always in the details, so I will explain how I think such a
license could work, for anyone interested. IANAL. I write "west coast code"
not "east coast code".
The basic principle is that the copyright holder grants the right to
commercial use, but is entitled to a per centage of the revenues thereof. In
the absence of an additional contract between copyright holder and licensee,
this right is for some fixed per centage of licensee's gross revenues --
say, 10% of everything earned using the copyrighted material. (The 10% is
fairly arbitrary as you will see, and open to debate; perhaps even the use
of a specific per centage is not the best approach; IANAL.)
This will be controversial, but I suggest a license that claims a per
centage not merely of direct revenues from the copyrighted work, advertising
that it hosts, etc., but of all the licensee's gross earnings facilitated in
any way by use of the copyrighted material. This is nearly punitive, and
deliberately so. (If you run my software to power your corporate web site,
am I entitled to 10% of your entire corporate revenue?) But in practice it
means we can ignore the details of how such revenue would be measured and
reported, especially the difficulty of determining what per centage of the
customer's revenue is "facilitated" by using the software (or other work),
because in practice, 10% of gross revenues is unacceptable. It is much more
than most customers can afford, and far too much to make using the work
competitive (e.g. compared to proprietary products).
Therefore, in most cases commercial users and copyright holders will
negotiate a separate commercial contract specific to the customer's use and
their respective business models, which defines specifically (and bounds,
i.e. reduces) the customer's obligations under the revenue requirement of
the license. Such contracts may be crafted specifically for each
relationship, and their terms may vary. They are not software licenses per
se but contracts bearing on the agreed interpretation of the
"Share-revenues" provision of the license. They are not an alternative
license (this is not a dual-licensing scheme).
Absent such a contract, the license is written to give the copyright holder
as much leverage in court as possible to garnish up to 10% the licensee's
gross revenues (or at least that fraction of it facilitated in any way by
the use of the copyrighted work). The contract specifically gives up these
punitive rights, replacing them with something more acceptable. Thus
"Share-revenues" defaults to something much like "Non-commercial", in
practice, in the absence of a separate commercial contract between vendor
and customer. [Honestly, I've no idea if such a license provision could be
enforced without at least a click-thru license, and we don't want those;
that's one of many issues for a lawyer to work on.]
The point is to have the "Share-revenues" license punt on specifying an
actual commercial contract that stipulates exactly how revenues are to be
shared. A commons license cannot specify such arrangements and still be
one-size-fits-all. The freedom to engage in an endless variety of commercial
relationships is what free markets (supposedly) guarantee; the license
should not constrain that. Also the commons license should not require user
acceptance (by click-thru or other means), while the revenue-sharing
contract would no doubt require both parties to sign it.
I would also like to see "Share-revenues" mean "from any compensation",
rather than exempting non-profit organizations/uses entirely as CC
Non-commercial (apparently) does. This is another reason why I suggest
basing it on gross revenues. The rationale is that the ability to contract
the revenue sharing model should be preserved in all relationships,
including those between the copyright holder and non-profits that earn
revenue from the use of the work, tax-supported organizations such as
governments, etc. The copyright holder is free to grant special contracts to
such customers, even at 0% revenue recovery if he likes.
One final point: unlike dual-license schemes which make the work available
to paying customers on one set of terms, and to non-commercial users on
another, "Share-revenues" is egalitarian: it would be a provision of a
single commons license available to everyone. Only the separate revenue
sharing contracts would vary. Thus, commercial and non-commercial users
would have the same rights and responsibilities. For example, commercial
users as well as non-commercial would be bound by "Share-alike", if it was
part of the license. [Nothing here prevents the copyright holder from also
using dual-licensing, for example to exempt some commercial users from
Share-alike, but it is not required.]
I'm sure this idea could be improved, but you see where I'm going with it no
doubt.
I'm also interested in other ideas in this vein.
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