Movable Type Licensing Issues at BlogHouse

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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 posted 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 services.

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 comments:

"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 other parties.

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.

3 Comments

Actually, when you say

The problem is that MT's licenses require everyone else to work for free

you're incorrect. They don't require anyone to do anything. They simply state what they cannot do with MT. They own MT and they can place restrictions on how the licenses work.

While, admittedly, my Contracts class last year didn't talk much about software (actually, not at all) or licensing issues---and I decided to take Civil Rights Litigation and Freedom of Speech this summer instead of Intellectual Property, I'm pretty sure that the owner of an intellectual copyright can restrict the way in which rights are granted under it. It doesn't matter whether they're instituting a "monopoly" (according to your definition) by refusing to let anyone else charge for it. There are lots of situations in which you can acquire something only from a particular vendor (a vertical market program I use, for one, called "DIAD" from Polylogics).

It comes right back down to the fact that the people who own the licensing rights can control what gets done with them. Heck, they COULD, if they wanted, say "Here's the really neat software we wrote. We even patented the algorhithms. And guess what? NO ONE IS ALLOWED TO EVER USE ANY OF IT!"

Next, you'll be wanting to say that Microsoft should be hauled into court because they won't give you their source code. ;)

I suppose I could have said "The problem is that MT's licenses require everyone else to work for free if they choose to do so." That didn't seem to be a distinction I needed to make, as a number of people have an expressed an interest in performing MT services for pay but are prevented from doing so by MT's license.

"It doesn't matter whether they're instituting a "monopoly" (according to your definition) by refusing to let anyone else charge for it."

I think it does matter - check out my post on "What is a software license supposed to protect? - Part 2."

"Next, you'll be wanting to say that Microsoft should be hauled into court because they won't give you their source code."

No, but I think Microsoft would be on questionable legal ground if they decided to haul me into court because I charge people $20 to install their legally owned copy of Windows.

Tweezerman, gotta say, your post on this was very very helpful.

I currently run a domain that has about 50 blogs on it. They all run on one installation of movabletypes software. I don't make any money from it or anything like that, though I hope to start to do so soon through advertising revenue (not on the blogs, on the mainsite).

Unfortunately, I have little idea of whether or not this will violate the limited-commercial license, as it says nothing about giving out FREE movabletype blogs on ONE installation of movabletype software that you yourself installed AND paid the $150 for. It's a little tricky...

But all that to say, if you DO want to move your blog (which is a very good blog by the way, very good blogging news!) over to something with a simply address, like tweezerman.chattablogs.com I'd be MORE than willing to set you up with a blog on my domain, and move all your old posts over (easy to do).