Technology Weblogging

Kicking the baby squirrels, again

Recovered from the Wayback machine.

I received an email from Kevin Marks, one of the new members of the Wayward Weblogger Co-op this morning about a posting Steven Den Beste wrote. It would seem that a person running a small hosting service is in violation of MT’s license. According to den Beste:

A couple of days later I posted that Kathy Kinsley, she of the Third Hand, was going to start a small hosting service whereby people could pay a small fee per month for a site which would have Movable Type on it.

Even in the most optimistic of predictions, Kathy isn’t going to become wealthy doing this. Likely about the best she’ll do is break even or make a bit of pocket-change out of it, running a system with a few dozen users. And it appears she’s still going to offer this service, but it isn’t going to be based on Movable Type. Kathy received a nasty letter from the folks behind MT telling her she was violating their license agreement, and demanding either that she cease forthwith or that she fork over a big fee for a professional license.

Den Beste also points to a comment thread related to this letter, with entries ranging from the reasonable to the rant.

Kevin sent this link to me because of concern about the use of Movable Type on the new co-op, particularly since I’m helping many of the webloggers install this software. He wondered if we would need to get a commercial license. Good question – and stripping aside some of the hyperbolic (nasty letter? How can Den Beste know if the letter was nasty if he hadn’t read it?), my take on this situation and how this impacts the co-op:

First, there was no indication from Kathy, the recipient of the letter that it was “nasty”, but I imagine that it did ask her to cease using a non-commercial license of MT on a commercial site. Kathy’s site is commercial, she is charging folks for hosting, and she does hope to make a profit – that’s commercial. So her use of the non-commercial licensed product for her new service’s main pages was in violation of the license agreement.

I have a clue for Mr. Clueless on this one: Kathy’s use of MySQL for this same purpose, if that’s what she uses as the backend, is also in violation of the MySQL non-commercial license agreement. And it’s in violation of most software of this nature, as the creator of pMachine wrote in the comments.

Additionally, bundling MT in with site installations on a commercial site is also a violation of MT’s license, and this, again, isn’t unusual for software of this nature – if you want to bundle MT in with your hosting service, you must do with a commercial license. Same with MySQL. Same with most software that is freely available for non-commercial use. This is the policy I’ve adapted for all my software, and used this policy to push back at several commercial porn sites who wanted to use a scripting-based game software I created – though NOAA and several non-commercial web sites are using it with my blessing.

Using MT for commercial purposes or bundling pre-installed MT at a commercial hosting service doesn’t seem to be the question – hiring a software developer to install MT for you is, and that’s one that I completely disagree with the MT folks on. If I read the license correctly, that is.

According to the Personal Use license:

Prohibited uses include, without limitation, using the Software on commercial websites; providing, or offering to provide, any service using the Software; using the Software to provide web design or other services to commercial and non-commercial websites; receiving compensation from others for copies or modified copies of the Software; hosting, or offering to host, the Software, on any basis; receiving compensation for any service that uses the Software, including support services. (Emphasis added.)

As some of the more reasonable comments in the thread noted, how do you distinguish between providing support for MT and providing support for a web server when users install MT on a commercial hosting service? After all, providing a T1 connection, or maintaining the hardware is considered ’support’ for a MT weblog.

The ambiguity of the license wasn’t as much of an issue until now; before now, this was software provided by Ben and Mena Trott – just plain folks like you and me, and we all donated to help support their efforts. Now when the newly venture capital funded Six Apart is about to start their own commercial hosting service, this license has more than a little potential for being a problem. What about companies such as Hosting Matters and others, who are used by a great many Movable Type webloggers? What about design folks who help design weblogs, which just happen to use Movable Type? What about the software developers just trying to survive, who charges 10.00 to help someone install the MT software, after the client downloads it?

Six Apart did respond with a clarification on this issue at the MT web site:

Currently, if you’re a web developer or designer, and you want to offer Movable Type to your clients so they can update their own site, or you want to use it to perform updates on their site, one License Fee must be paid per server installation, either by you or your client.

So what can’t you do? You can’t sell the software yourself, or redistribute it with changes, or offer it installed as part of a hosting service, either bundled or as a pay option.

According to this, if I read it correctly, if you get the software and hire me to install it, this should not be in violation of the license – because I’m not bundling this with a hosting service, or providing a copy. I’m just helping you install some Perl code on your machine.

Still, this is then confused with the further statement:

Based on the comments and questions raised about offering support services, we’ll be working on creating a Movable Type Developer/Service Provider Network that will rely more on a software/service-provider relationship rather than that of licensor/licensee. We’d love to hear what you think about this sort of a program and if you have any ideas or suggestions of how it would work best for you as a service-provider or developer.

This concept of developer network is supported by what you find in the FAQ:

Q: I want to charge for installations. Is this allowed?
A: No. Movable Type’s development is supported from user donations, commercial License Fee payments, and our own pay installation service, and further development depends on our ability to provide related services to Movable Type users. Therefore, offering pay installation is prohibited. If, however, you represent a client and you or the client purchase a commercial license, you may charge for support services for that one client, as described in the Limited Commercial Use License.

Yet this is somewhat contradicted by:

Q: I run a business, and I am interested in additional services relating to Movable Type: initial setup of Movable Type, system and template customization, and/or additional design work.
A: Six Apart does not currently perform customization or design work around Movable Type, but we are in the process of developing a referral network for those seeking and providing services around the Movable Type platform. If your organization has a need for such services, please feel free to contact us and we will try to find an appropriate consultant for your needs.

These comments, rather than clarify leaves the issue confused. Very confused. The first QA does imply that you can’t charge someone to install MT for them, and does leave open issues about even using MT in a commercially hosted site, such as Hosting Matters. The second QA contradicts this.

And this issue is further complicated because of a statement in the original comment thread on this issue:

It is *not* true that you can not offer for pay Movable Type support services. The payment of the $150 commercial license (by either the client or the contractor) entitles you to charge for support (installation, customization, design work). When we came up with that number, we figured that most contracts would far exceed the $150 amount and for most contractors, the fee would be nominal. We *never* imagined that a market of providing services for personal users would have flourished. We assumed that businesses (that could easily pay the $150 fee) would be contracting support services. We underestimated the personal user as client demand.

If I read this correctly, if I help someone install Movable Type and charge a fee, I or my customer must pay a 150.00 license fee, even though I may have only charged 10.00 to help the person. Additionally, if a client uses Movable Type on my commercial hosting site, and I answer a question about this for them, and perhaps charge a fee for this, I have to then pay the fee.

Just having MT on a commercially hosted site such as Hosting Matters, with no direct intervention on the part of HM in regards to MT could infringe on this one, as ambiguous as the licence is.

Sorry – this bird won’t fly. The license agreement is between the person who downloads and uses the software and the developers of the software. What other arrangements the person makes to ensure that the software runs is incidental to the issue. If it wasn’t, you might as well close the Internet down, right now, because we’ve been doing all of this wrong.

Point blank, without having to resort to the blawgers in the audience, I cannot see how Six Apart can restrict anyone from hiring a developer to install software for them – the license is between the person who downloads the software, and the company. The license can, in no way, prohibit anyone from helping that person, even at a profit. Not bundling MT with hosting services, sure. Not using MT on a commercial site, okay. Not providing a copy of MT as part of commercial services, fine. These are very reasonable, and clearly understood restrictions.

But trying to insert your software license between a professional helping to install software, manage, modify, or maintain that same softare for their customer? No.

Not a chance, babies.

I’ll even be a test case on this – someone out there who isn’t using Movable Type, but wants to: download a copy for personal use, and hire me for 10.00US to install it.

I’ve never begrudged Six Apart making money, and have donated for the use of MT for my weblogs. If I even dig out of my current financial hole, I had planned on donating more. And I wish Six Apart the best in their new commercial venture, Typepad. But I think it’s time that they get a lawyer to define for them what they can or cannot restrict, because this is not just Ben and Mena Trott writing free software any more.

However, back to Kevin’s original concern, this issue won’t apply to the co-op, in any way. Reasons:

1. The co-op is non-profit, every penny goes back into funding the machines on which the co-op is running.

2. Commercial sites are not allowed on the co-op machine.

3. I don’t charge to install MT for any co-op member. Hopefully the co-op members will help each other with installs in the future.

4. I ask that the members download MT on their own before I install, unless I’m helping to port a weblog that was already running in Movable Type. This way the direct relationship between MT user and Six Apart is established, and my butt is protected if the person decides to go commercial – which they can’t do on the co-op, anyway. Additionally, my hope is that the person will also donate for the use of the software, if there is a relationship established directly between the company and the person. And it doesn’t hurt for Six Apart to keep a count on downloads.

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