Would closing the ASP loophole create more problems than it solves?

I and others have argued that it's critical to open source's future that licenses like the Affero GPL close the "ASP loophole" by requiring companies like Google to contribute back derivative works of open-source software that they distribute as a service, rather than as packaged software. Now Gordon Haff is suggesting that requiring Web 2.0 to Contribute 1.0 may cause more problems than it solves, and he could well be right.

The problem has nothing to do with whether Web 2.0 vendors like Google are required to contribute back. The problem is all the so-called Web 2.0 users:

Distribution in the GPLv2 and GPLv3 licenses draws (mostly) a hard-edged line. If you're an enterprise using software internally, anything goes. If you're using GPL code in software you're selling to the public--whether downloaded, on a CD, or in embedded firmware--you must make the relevant sources available. However, as more and more companies of every stripe make parts of their computing infrastructure available to their customers--think online banking, for example--where does it end? The boundaries become very fuzzy--which would inject lots of uncertainty into just about any use of open source in an enterprise environment.

This is a very, very good point. I'm not sure how to answer it.

On the one hand, open-source vendors might cheer as this should lead to more potential customers buying their way out of open-source licensing terms so as to skirt the need to contribute back. This would apply not only to the Googles of the world, but also the Citigroups that have adopted open source en masse.

It's an open question, however, whether this would result in more open-source adoption or less. Yes, these companies currently buy a lot of proprietary software and so they might simply treat open source as the new proprietary software and buy from vendors able to dual-license them out of uncertainty, but I'm not convinced this would actually happen.

Why? Because open source has become the new innovation platform for enterprises, and most want to experiment before they purchase, if they purchase at all. Closing off open source might well have a dampening influence on adoption, and that is something none of us wants, or should want.

Gordon has a point. Perhaps with the difficulty of directly monetizing pure open-source software will lead us into novel licensing/business models that will prove far more profitable than the traditional software licensing model ever did. Think Google. Think Salesforce.

But perhaps stop thinking about AGPL? I'm torn. What do you think?

[jrepenning]

I think we're closing in on an optimal model. The AGPL tries to correct something that needed correction, but seems to be a bit too far on the other side. Dual licensing with an AGPL base would be a move back toward the center, where hopefully the optimum lies.

[stormypeters]

I'm not seeing a big difference between a company like Google and a company like Citibank when it comes to open source software. They are both using it in solutions that fuel their business. The licenses should - and do - apply the same.

[Matt Asay]

I kind of agree with you, Stormy, but I guess I have a hard time shaking the idea of Google as a technology company - as a software vendor. I know it's basically an advertising company, but it's hard to stop thinking of them as a software vendor to me and, hence, subject to different rules from a Citigroup. But that's probably just my wrongheaded thinking.