phil ringnalda

Like most people, I pay very little attention to software licenses. There’s usually a plain English description of roughly what the license is supposed to say somewhere along the line, and beyond that what a license actually says is whatever a lawyer can convince a judge it says, and in any disagreement I expect my lawyer to be cheaper and less effective than the other guy’s. If I’m looking for code to redistribute, of course I carefully check the license, but when I’m looking for something to use, I read a paragraph or two, just enough to make my eyes glaze over, and then click “Otay, I’ll do what you say!”

That’s not always a great idea. Sometimes, the license says “we reserve the right to fill your computer with spyware and adware, and disable your antivirus program and your firewall too, my pretty.” Other times, the license says “we reserve the right to completely change the terms at any time, and you are required to keep checking the modification date on our website to determine whether or not we have.”

Thanks to Pete’s constant prodding and the whole explosion of interest in Movable Type’s license, now that for lots of people it says “get out your wallet, please,” I finally took a closer look. From the top:

“Non-Commercial Purposes” means use of the Software by an individual for publishing on a personal blog site on a single sever [sic]

We’ve already established that we are talking about me, a chunk of meat and bone, and not any other sort of me. But, publishing on a single server? Does this mean that all the people who are thinking they’ll be okay with the free license because they have two blogs on one domain, and two blog on a different domain on a different server, are wrong, and in fact they are not allowed to publish on more than one domain? Can I have two free blogs on two different servers (or, six free blogs, three each on two servers)? For that matter, can I buy a five weblog personal license and split it between two servers? Can I even buy more than one personal license, to publish on two servers? And what about non-publishing, non-server use? I’m only allowed to make one backup copy, so am I no longer allowed to install a copy locally on my laptop? In some ways it’s a server, since it’s running Apache, but it only answers on 127.0.0.1, which makes it not very server-like. Are you allowed to do anything you please when using MT as a private diary program, or are you not allowed to do so at all? Also, I use the Software to create syndication feeds that are used to publish me on at least two other servers, along with an unknown number of semi-public personal aggregators than run on servers and are web-accessible to anyone.

“Weblog” means a single Web site viewable at a single URL (Uniform Resource Locator), consisting of one or more weblogs as generated by the Software via the “Create New Weblog” function of the Software.

This definition is certainly more palatable than the previous “a weblog is what you get when you click ‘Create new Weblog’ in the interface,” but it’s vastly less clear, comprehensible, and defensible. The out-of-band (and thus, by the terms of the Agreement, not a part of the Agreement) explanation has been that things like linklogs and photologs don’t count as separate weblogs, but that just stitching together a single aggregated view of multiple separate weblogs isn’t enough to make them only count as one. That’s completely unworkable and unenforceable: depending on how you look at it, my linklog is a wholly separate weblog, with all the standard templates of any weblog (because I didn’t bother to turn them off, mostly), or an integral part of my one weblog. I have an abandoned photolog, developed as a totally separate thing: should giving it a template that produces thumbnails I include here, without changing anything else, make it not a separate weblog?

Use of the Software for automatic computer-generated publishing is not permitted under this Agreement.

I honestly don’t have the slightest idea what that means, or why it’s a bad thing. Does it mean you can’t write a random entry generator program and feed its output through MT? Why on earth not? Does it mean that Scoble can’t use MT to publish his aggregated posts feed? If there’s some actual bad thing here that we really need to not do, we’ll need it spelled out a bit more than that.

Six Apart owns all rights, title and interest in and to the Software (including all intellectual property rights, and reserves all rights to the Software not expressly granted in this Agreement.

I’m down with all of that, it’s maybe the clearest and most sensible and obvious sentence in the whole Agreement, but aren’t you supposed to be programmers, running a software company? Unbalanced parentheses! Compiler errors!

You must maintain, on every site generated by the Software, an operable link to http://www.sixapart.com/movabletype/

Oops, the default templates put every single user in violation of the license, then, since they link to http://www.movabletype.org.

You may not:

• Create derivative works based on the Software;
• Reproduce the Software except as described in this Agreement;
• Sell, assign, license, disclose, or otherwise transfer or make available the Software or any copies of the Software in any form to any third parties;
• Translate or attempt to reverse engineer the Software, subject to applicable law which permits such activity notwithstanding this contractual prohibition;

Interesting thing about creating derivative works based on the Software: the code is beautifully object-oriented, perfectly designed for the creation of derivative works, and the perldoc throughout the whole thing carefully explains how to create derivative works. I’m not quite sure what reverse-engineering is in the context of Perl, or any other unencrypted scripting language, but I suspect that it means most of how I’ve spent my free time for the last couple of years, poking at the code and figuring out how it works. Oops. I thought I was debugging, and hacking in useful new ideas.

I do know that previous versions of the license said that

Although you may modify or alter the Software for your own use (including copies that extend, or enhance the Software), you may not distribute, transfer, or resell the modified or derivative copies of the Software; you may not use such copies for other than personal, non-commercial purposes; and you may not use such copies in a way that violates the terms of this Agreement.

a section which is now completely missing from both the personal and the commercial licenses, which would seem to leave the developers, for whom 3.0 is tailored, rather hamstrung.

No Warranty. THE SOFTWARE IS OFFERED ON AN “AS-IS” BASIS AND NO WARRANTY, EITHER EXPRESSED OR IMPLIED, IS GIVEN. SIX APART AND ITS SUPPLIER

Its supplier? Don’t tell me that Santa and the Tooth Fairy wrote MT, too! Or, er, is that another bit of blind copy-and-paste from whatever license agreement you reverse-engineered ?

Personal license:

You may use the Software under this Agreement until either party terminates this Agreement as set forth in this paragraph. Either party may terminate the Agreement at any time, upon written notice to the other party. Upon termination, all licenses granted to you will terminate, and you will immediately uninstall and cease all use of the Software.

Commercial license:

The term of this Agreement shall be for the period corresponding to the fee you pay and set forth in your copy of the Software, unless terminated earlier as provided herein.

Unfortunately, “give us your billing information” comes earlier in the purchase process than “here’s the details about what you are buying,” so I don’t actually know what the term of the commercial license is. However, I don’t see any sign (on this side of the credit card wall, at least) that there’s more than one Personal license: there’s just the one, where the number of users and weblogs and the possibility of help will vary based on whether or not you paid, but nothing else does, including the fact that they can tell you to uninstall it at any time for no reason. So far as I know, 6A is still currently not-Evil. However, you could buy a $149 personal license today, add a few hundred dollars worth of extra authors next week, and when they sell out the week after that, be ordered to delete your copy of MT.

One of the stated benefits (stated in advertising, not in the license) of the paid versions is “A guaranteed path to future versions.” Under the terms of the license, that guarantee could just as easily mean “we guarantee that you will upgrade, because your license for your existing version will be terminated.” One of the purposes of an equitable contract is to protect both parties. That term, allowing Six Apart to unilaterally terminate your use of your paid-for personal license at any time, for no reason, isn’t the least bit equitable.

Six Apart may modify the Software and this Agreement with notice to you either in email or by publishing content on the Six Apart Website, including but not limited to charging fees for the Software, changing the functionality or appearance of the Software, and such modification will become binding on you unless you terminate this Agreement.

Just in case it wasn’t clear to you before: they can change absolutely anything about the contract, unilaterally, and they don’t even have to tell you: you are responsible for tracking every single change on every single page published on their website to determine, day to day, whether or not you want to delete your copy of Movable Type or continue to use it under that day’s terms (including but not limited to paying them (more) money).

I’ve seen a number of people saying over the last few days that they would just continue using their existing copy of MT 2.x, under the terms of license when they downloaded it. Well, I’m not sure what terms you got your copy under, but I just looked at the copy in my MT directory, and it screams:

CHANGES TO TERMS. LICENSOR RESERVES THE RIGHT TO CHANGE THIS AGREEMENT AT ANY TIME BY POSTING CHANGES ONLINE. IF THIS AGREEMENT IS REVISED, THE CHANGES WILL BE POSTED THROUGH THE “LICENSE AGREEMENT” LINK ON THE DOWNLOAD PAGE ON LICENSOR’S WEB SITE. A MORE RECENT DATE AT THE TOP OF THE POSTED AGREEMENT THAN THE DATE AT THE TOP OF THIS AGREEMENT WILL LET YOU KNOW THAT A CHANGED AGREEMENT HAS BEEN POSTED. YOUR NON-TERMINATION OR CONTINUED USE OF THE SOFTWARE AFTER CHANGES ARE POSTED CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT AS MODIFIED BY THE POSTED CHANGES.

Sweet! By continuing to use MT after the current license was posted, whether or not I even read it, I have already accepted it. Sure, that’s utterly unenforceable, you cannot have a contract where one party hasn’t even seen the contract, but none the less, those are the terms of the license I agreed to.

I’ve got a really sour taste in my mouth right now. I think I’ll brush my teeth, and try to sleep, and think about this in the morning. Or, more likely, all night.