I ran across an MT forum thread yesterday that stumbled into an interesting MT licensing issue. I really, really wanted to post there, but my views on MT's license aren't exactly welcome there. At first I let it go, then changed my mind because it had been a long time since I had posted anything about software licensing.
The usual disclaimer applies: I am not a lawyer. This is not legal advice and should not be construed as such. If you have legal difficulties in this area, seek out and consult with a competent attorney.
Quotes from the forum discussion are in colored text; my comments are in black:
My host installed MT as part of my hosting package.
Oops! Six Apart and the MT forums are pretty sensitive to seeing "Movable Type" and "hosting" used in the same sentence.
BTW, I didn't realize hosts were allowed to offer installation services as part of their hosting package?
If you ask Six Apart, I would expect them to agree with that statement. It's exactly what they came down on Kathy Kinsley for last year.
Who is your host? I'm interested, because on the face of it, that is a breach of the MT license...
Honestly, not enough facts are known to say whether this is a violation of the MT license or not.
Ooops.... hmmmmm... out of curiosity, what is the difference if I install MT or some Admin? As far as I know it is just an added bonus like a forum or a chat and the host does not charge for it. If any, it seems like a host who offers MT as part of its hosting package helps promote MT and distribute it. Isn't that the case?
There is no problem with hosts helping promote MT. No one can distribute MT (provide copies of MT to others) unless Six Apart allows it - this is specified in both federal copyright law and MT's license:
(from Restrictions on Use)
You may not redistribute the Software without Licensor's prior written consent.
This brings up the first question of fact in determining whether there is a license violation: Is there any written agreement between the host and Six Apart that allows this? At this point, only Six Apart and the host know whether such an agreement exists.
Assuming that there is no written agreement between the host and Six Apart, it makes a world of difference whether the host is installing the user's licensed copy of MT, or the host makes a copy of their own (hopefully licensed) copy of MT to install. The first is legal; the second results in a illegal copy. This brings up the second question in determining whether there is a license violation: Which party (the host or the user) is providing the copy of MT software to be installed?
In addition, the users have no license for the newly installed copy of MT if the host installed it by making a copy of their own MT software (unless there is a prior written agreement), because licensing rights are non-transferable:
(again from Restrictions on Use)
You may not rent, lease, lend, or in any way distribute or transfer any rights in this Agreement or the Software to third parties without Licensor's written approval.
If the host installs from their own copy of MT, the users end up with illegal copies that they have no license (legal right) to use.
Nah, it's a direct violation of the MT user license. "But isn't MT free?" you ask? Yes... but Six Apart makes money by charging for installations. So it's a free product, but no one other than them can install it for you AND CHARGE YOU (I think there is one host who is an exception, but they have a special agreement).
Because it's "part of the deal" with your host, they ARE charging you for it, even though there isn't a specific "MT Install" charge.
His provider appears to be "Cyberpixels" http://cyberpixels.com/.
As I said, there could be a license violation, but without more information, that cannot be determined at this time.
The fact that MT is free for personal, non-commercial use has nothing to do with this issue. The fact that Six Apart makes money by charging for installations also doesn't really have anything to do with this issue.
I believe the license clause that results in "no one other than them can install it for you AND CHARGE YOU" is illegal. There indeed was a host who was granted an exception to this clause: Blogomania (references here and here).
The statement "Because it's 'part of the deal' with your host, they ARE charging you for it, even though there isn't a specific 'MT Install' charge." appears to be an attempt to imply that CyberPixels is violating the MT license clause prohibiting "receiving compensation for any service that uses the Software, including support services". As noted above, I believe this license clause is illegal and therefore unenforceable. Even if the clause is enforceable (unlikely), the statement is a weak assertion I don't think would hold up in court.
I don't know that outing the host is really helpful here, but it's done now.
Hm... from their forums:
But, CP does have it's own version of an autoinstaller for MovableType (but it's usable by us admin's) so feel free to submit a ticket to have it installed,
we really don't mind.
Systems Administrator email@example.com
Report Post | IP: Logged
The autoinstaller sounds pretty cool - I know a lot users wish they had one when installing MT on their accounts. In and of itself, it does not violate MT's license. What would violate MT's license is to use the autoinstaller to do something that, if a human did the same task(s) the same way, violated MT's license.
Thanks for clarifying that point. I wasn't aware of that and was under the impression that pretty much everyone can install it. I would like to make it clear that my host did not charge me for it and offered the option after I opened the account with them. As far as I know, once someone asks to have MT installed he isn't charged anything so wouldn't you say that in that case, there is no breach of the MT license?
Everyone can install it, but care must be taken in how it is done so that copyright law and the MT license are not violated.
The key question to answer is "Who is providing the copy of MT software to be installed?". If the host is (illegally) copying their copy of MT to install on your account, it violates both federal copyright law and MT's license, so it does not matter whether they charge you a fee to install MT or not.
Ultimately, any questions about the licenses should be directed to firstname.lastname@example.org, for reasons stated before elsewhere on the forum.
But a few words that spring to my mind are "redistribution" and "single copy use".
From what I can tell, legal-at-movabletype-dot-org is pretty much of a black hole. I've only read of a few instances where users received responses to questions sent there, and seen many instances where users have stated that their questions went unanswered. If 'legal' won't answer user's questions about licensing issues, and MT's forum moderators won't allow it to be discussed in the forums, exactly where are users supposed to get answers?
Even if 'legal' did answer questions, the advice given needs to be taken with a grain of salt. 'legal' works for Six Apart - it is their job to look out for Six Apart's interests. Where the license and the law are not clear-cut, I would expect 'legal' to be biased in Six Apart's favor - 'legal' will interpret the license broadly for Six Apart and narrowly for users. If a user wants a legal opinion free of bias towards Six Apart, the user really should consult with their own attorney.
If the MT forum moderators allowed licensing issues to be discussed in the forums, the forum moderators themselves must necessarily be biased towards Six Apart as well - they serve as moderators at Six Apart's discretion (not to mention that six of the forum's eight moderators are now Six Apart employees). What are the odds that any of the moderators would be willing to publicly state that they believe one or more of their license terms are illegal? My guess - zero.
If the MT forum moderators don't want licensing issues discussed on the forum, they need to follow their own rules.; Telling users that all licensing questions should be directed to Six Apart's legal department but sneaking in their own opinions (such as "I'm interested, because on the face of it, that is a breach of the MT license..." or "But a few words that spring to my mind are 'redistribution' and 'single copy use'.") and not allowing others to challenge or comment on those statements smacks of "do as I say, not as I do". Allowing only one side of an issue to be presented is not in the spirit of a 'forum'.
McMurphy: There is cause for concern if the host (CyberPixels) did not install a licensed copy of MT downloaded by McMurphy from the MT web site. If this is the case, McMurphy would need to delete the illegal copy of MT and install a properly licensed copy to be in compliance with MT's license.
CyberPixels: If CyberPixels is not installing licensed copies of MT that users provide to them directly but instead performing the installs by making a copy of MT it already possesses, I would highly recommend discontinuing this practice. This would be a pretty clear case of copyright infringement unless CyberPixels has written permission from Six Apart to do this.