Open Ownership Software Licence

Draft 0.2 — full text

Not yet a legal document. This is a plain-English draft for licence counsel to work from. Points that need a lawyer are marked For counsel. It replaces draft 0.1, which was abandoned.

0. Definitions

The Software: The work the Licensor publishes under this licence, including its source code, documentation, and any types, components, functions and templates published with it.
The Licensor: The person or body that holds the copyright in the Software and publishes it under this licence. For the Software to be under open ownership, the Licensor should be a trust or similar body that cannot sell it or profit from it. (For Kanecta, the Licensor is the Kanecta trust.)
You: Each natural person who uses the Software. Where an organisation uses the Software, each person who uses it on the organisation's behalf is "You", and the organisation is responsible for making sure each of them can comply.
Member Organisation: An organisation currently on the Licensor's public register, having met the Licensor's published criteria.
Extension: Any type, component, function, template, plugin or other work that is built on, built in, or designed to run within the Software.
Modification: Any change to the Software, and any Extension.
Field Data: The values You store in the Software — your content, records and files — as opposed to the structures that hold them.
Registry: A public registry for Extensions that the Licensor has certified.
Evaluation Period: Three months from the day You first use the Software.
Price: The single membership fee most recently recorded by the Licensor.

1. The grant

The Licensor grants You a worldwide, royalty-free, non-exclusive licence, for the life of the copyright, to:

run the Software for any purpose;
read and study all of its source code;
make Modifications;
copy and distribute the Software and your Modifications; and
start and maintain an independent version of the Software (fork it),

on the conditions in this licence, and no others.

The Licensor also grants You a licence under any patent it holds that the Software would otherwise infringe, on the same conditions.

2. The one condition

After the Evaluation Period, while You use the Software, You must:

be a member of a Member Organisation of your choice;
complete the Licensor's annual declaration through that Member Organisation; and
pay the Price to that Member Organisation, or declare hardship under section 3.

No organisation reasonably available. If no Member Organisation is reasonably available to You, this section does not apply to You for as long as that remains true. You decide that yourself and do not have to tell anyone.

Being refused membership by a Member Organisation does not put You in breach. A Member Organisation is not permitted to refuse anyone.

The condition attaches to each natural person, not to the code or to an organisation, so that no arrangement of forks or entities can remove it. Is a use condition on individuals enforceable as a copyright licence condition (rather than a contract term) in New Zealand and in major jurisdictions? How should organisational use be framed so that the organisation is liable without turning membership into something organisations buy on people's behalf?

3. Hardship

You may declare in your annual declaration that You cannot reasonably afford the Price. That declaration is final. Nobody may investigate it, require evidence for it, or refuse it, and it gives You the same standing as a member who pays.

A hardship declaration is visible only within your Member Organisation. Aggregate counts may be published. Names may never be.

4. The Evaluation Period

During the Evaluation Period, section 2 does not apply and You may use the whole of the Software. Nothing in the Software may limit what You can do during or after it.

Restarting the Evaluation Period, by any means, in order to avoid section 2 is a breach of this licence.

5. Share alike

If You make a Modification and use it, distribute it, or let anyone else use it, You must:

publish its complete source code, under this licence, freely available to the public — not only to people You gave it to;
where a Registry exists, publish any Extension to it; and
keep it under this licence in full, with nothing withheld.

This section applies whether You distribute the Software, run it as a service for others, or use it only within your own organisation. There is no exception for software that is never distributed, and no part of a Modification may be held back as a separate, closed product.

Field Data is never covered by this section. It is yours, and stays private.

This is a deliberately aggressive, non-OSI copyleft that must reach Extensions (types, components, functions and templates), not just the runtime. Precise drafting of "Extension", and of what counts as building on the Software, is the heart of it. Does triggering on private internal use go too far to be enforceable? Recommended: Heather Meeker plus New Zealand counsel, after free adversarial review on the OSI licence-review list.

6. Obligations only where they can be met

Every obligation in this licence applies only while there is a working way to meet it. In particular:

If no Member Organisation exists, section 2 does not apply.
If no Registry exists, section 5(b) does not apply.
If a Member Organisation or Registry later exists again, the obligation applies again from then on.

If the Licensor is dissolved, sections 2, 3, 4, 5, 7, 8, 9 and 10 cease to apply permanently, and the Software is available to everyone under the permissive terms in section 14.

How can the dissolution release be made effective after the Licensor no longer exists — for example, by an irrevocable grant made now and conditional on dissolution?

7. The membership reminder

The Software may display reminders about membership and the annual declaration. Those reminders are legal notices. You must not remove, disable or hide them, or distribute a version of the Software in which they have been removed, disabled or hidden.

The reminders must never block, limit or degrade use of the Software, and the Software must never send information about You or your use to anyone in order to check compliance. A version of the Software that does either is not licensed under this licence.

8. The operator badge

If You make the Software available to other people over a network, and You do not hold a commercial licence, You must show the Licensor's badge, stating that the service is run by members of a co-operative, in a reasonably visible place such as your About page.

9. Commercial licence

Instead of sections 2, 5 and 8, an operator may take a commercial licence from the Licensor. The commercial licence:

applies at the layer that hosts or serves the Software, not to each end user;
has a base fee by type of entity plus a fee scaled to how much of the Software's capability is offered and whether it is used for profit;
costs more again if the operator prevents its users from becoming members; and
is published, with its reasoning, so that anyone can see how it is priced.

The multiple of the membership Price is undecided.

10. The Price

There is one Price, the same in every Member Organisation. The Licensor records it as the result of a vote of members held under the Licensor's published rules. Member Organisations must charge the Price and may not agree any other.

If no new Price is recorded, the last one continues.

Blocking. A mandatory uniform downstream price set by a licensor may engage resale price maintenance law. Member Organisations never agree the price among themselves. Is it lawful, in New Zealand and elsewhere, for the Licensor to set it as a term of the licence? Whether the Price is a flat amount or a share of local purchasing power is also undecided.

11. Self-reporting and remedies

You are responsible for assessing your own compliance.
The Licensor may audit a sample of commercial licensees and operators.
If You are in breach, You have [60] days after being told to put it right. If You do, your licence continues as if the breach had not happened.
Termination is a last resort, available only if a breach continues after the cure period.

12. Substance over form

The substance of an arrangement, not its form, decides how this licence applies. If an organisation, shell or chain of entities is used to avoid an obligation — for example, by claiming hardship on behalf of a well-resourced organisation — the obligation falls on the real party behind it.

This section never applies to a natural person's own hardship declaration.

13. No warranty, no liability

The Software is provided as is, without warranty of any kind. To the extent the law allows, the Licensor and contributors are not liable for any damage arising from the Software or its use.

Standard text to be supplied, adapted for the Consumer Guarantees Act 1993 where it can't be excluded.

14. On dissolution

If section 6 releases the Software on the Licensor's dissolution, the Software is licensed to everyone under the following terms: permission is granted, free of charge, to use, copy, modify, merge, publish, distribute, sublicense and sell copies of the Software, subject only to keeping the copyright notice and section 13.

15. Versions

The Licensor may publish new versions of this licence. A new version may give You more freedom but may never remove the right to fork, the hardship provision, or section 7's ban on technical enforcement. You may use the Software under the version it came with, or any later version.

Open Ownership Software Licence, draft 0.2. Not reviewed by a lawyer. Questions we haven't settled are at open questions.