Kathy Kinsley set up Blog House to offer hosting
services to people who want to migrate their blog to another host, use
different blog software, or both. As a part of her service, she offered
free installation of Movable Type (MT),
one of a number of blog publishing software packages.
Kathy received an e-mail from the MT people a few days ago, alleging that
she was in violation of her MT license. She
the issue in her personal blog, seeking advice:
I just got a letter from MT about bloghouse. It says I'm in violation
of their agreement for offering to install MT for people. I thought it
was only if I charged for it that it was a problem. Sigh. Anyone know
how to make this legal?
Kathy has also been in contact with the folks at Movable Type; she received
the following reply:
"For Movable Type, you would not be able to install it free of charge for
them, but you can provide them with links to the download and install
instructions for their convenience."
Movable Type has two licenses - a personal, non-commercial one and a limited
commercial one. The crucial section in both licenses is the "Restrictions on Use".
From the "Commercial License":
Without limitation, uses which are prohibited under this Limited Commercial
Use License include 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
From the "Personal, Non-Commercial 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.
There are a number of issues just in these sections of the licenses.
1. No user is permitted to help any other user, for free or for pay, unless
a "Commercial License" is purchased.
I don't see how else the phrase, "Prohibited uses include.....providing, or
offering to provide, any service using the Software" (present in the "Personal,
Non-Commercial License") could be read. "Service" is not defined, but later in
the same paragraph, "service" is defined to include "support services". The
people at MT seem to interpret this as including installation, configuration,
and troubleshooting. This restriction is removed in the "Commercial License",
so it would appear you have to buy a commercial license in order to help
("provide service to") any other MT user.
2. A person / company can be a host, or be an MT licensee, but not both.
Anil Dash, a vice president at
Six Apart (the company behind Movable Type),
explains this by saying, "We just don't want preinstalled MT on hosting plans."
The question that first comes to my mind is, "Why?".
Rick Ellis posts a possible answer in Kathy's
"This is very different than, say, AOL, announcing that all their hosting accounts
will come with pMachine Free or MT pre-installed. In this fictitious scenario,
AOL would be leveraging a product that they did not develop, pay for, nor own
the copyright on, to generate more business and provide more value to their clients.
Should AOL be allowed to do this? For those of you who say yes, would you also
assert that AOL should be allowed to use someone's music on a TV commercial
without paying a royalty? Or to quote from someone's story in a print ad without
paying a reuse fee? Or to use photographs on their website that they didn't
commission? In these scenarios it's easy to come down on the side of the musician,
writer, photographer, and even the software developer.
Now, if we extrapolate down to a small hosting company, the same rules should
presumably apply. If AOL can't offer pre-installed software, then no one else
should be able to either.
I think the proper answer to the hypothetical AOL situation, as well as Kathy's
all too real predicament, is a commercial volume license agreement that scales
the total cost with the size of the host (the total number of users who would
be licensed to use MT on the host). AOL should have to pay a whole lot more
than Kathy would.
3. No one is allowed to make any money for any service provided in relation
to MT software.
I don't believe this one is legal. MT will install their software for you for
$40. If you perform the exact same installation for someone else, you are not
allowed to charge anything at all for your time.
Anil's reply contains at least some of the justification for the license terms:
FWIW, we've let hundreds of thousands of people download the software for free,
with a significant portion of the development effort being funded by our paid
service installing the program for people who found the process too difficult.
I don't think that's a terrible thing that we did, and I don't think we're
wrong to protect the part of our business that pays for so many people to use
MT at no cost at all.
MT's licenses protect MT's business by imposing a monopoly on providing services
for pay (only MT can charge for an install) and demanding slavery (free labor)
for all services provided by anyone else. That doesn't seem legal to me for at
least two reasons:
A. Contract rights: If I agree to perform an installation for a fee for another
MT licensee, the fact that MT's software is being installed does not make MT a
party to the agreement. Thus, I don't see how MT has any right to dictate what
I will or won't charge for my services. MT's licensing terms illegitimately
force MT into such an agreement as another party that dictates terms to the
B. Personal Rights: A person who wishes to provide MT services to another MT
licensee generally is providing knowledge, skills, and time. Considering that
there is not an employer / employee relationship here, a software license that
tries to assert rights in this area is reaching way too far. MT does not have
any right to limit what a person does with the knowledge and skills in their head,
what a person does with their time, and what a person charges to use their
knowledge, skills, and time. It is not really any of MT's business.
Paul (an ISP and a software developer) posts the following in Kathy's comments:
And on a highly personal note I find it really freaking nervy that people who
get this software for free (or donate a pittance) have the freaking nerve to
bash the guy that gives it to them free.
Write your own damn software!
OH-- You don't know how???? That's why he gets paid.
Nobody here would work for free but they'll bash others when they won't.
Nervy-- Real freaking nervy.
The problem is not the software or its price - it's the license terms. "Nobody
here would work for free but they'll bash others when they won't." That statement
does not reflect the situation here. No one expects the people at MT to work for
free. The problem is that MT's licenses require everyone else to work for free.
Kathy did what she had to - she stripped Movable Type from the BlogHouse web site
and is looking for an alternative. My advice to the MT people: You might want to
look at your licenses with respect to the points I raised above. You can only
protect your business so much; beyond that, you have to compete. Consider offering
a volume licensing option so hosts such as Kathy have an option to provide a good
service to her customers.
I started this blog about 6 weeks ago. As you can probably tell, I am using Blogger,
and hosting it on my web space provided with my Earthlink DSL account. Before I went
with Blogger, I had looked into Movable Type, but from what I could tell,
Movable Type won't run in Earthlink personal web space (no cgi scripts, I think).
I didn't really need a lot - the only readers I have are me and my girlfriend. As
great as Movable Type appears to be, their licensing terms will put me off from
ever using it.
Hat tip to Jeff Jarvis for linking
("Movable Type PR Crisis")
to Kathy's discussion on this issue.