MT3D's new licenses: Response to Anil Dash

Anil Dash of Six Apart left some comments on my first post about MT3D's new licenses:

Thanks for your feedback. The "charging for the free version is not permitted" item was just a holdover from the old version, I fixed that. Sorry to have left it in.

The term has been removed from the FAQ, but the remaining text still implies that no one can charge to install the free version of MT. I would suggest rewording the answer something like this:

Q: I want to charge for installations. Is this allowed?
A: You may charge for installation of any licensed version of Movable Type.

The user is not allowed to install unlicensed copies anyway, so there is no harm in implying that one cannot charge to install an unlicensed copy of MT that is illegal for anyone to install.

I'll try to check over and clarify the other points you've mentioned as well. I should mention that the educational version is generally *cheaper than the commercial version for those users, we just have some different terms that are appropriate for their uses.*

That's good to hear. But if it's cheaper for them, wouldn't that be incentive enough for educational institutions to obtain an educational license without the prohibition in the Commercial License? I don't suppose there's any harm in having it there though. I wasn't aware that an "Educational License" even existed before reading that clause.

I'd love to hear more about whether we addressed the earlier concerns you had. Your conversations last year were a big influence on all the work we've put into our new licenses. It'd be great to have some discussion as to whether those complaints were addressed.

I think Six Apart has done an outstanding job in addressing the issues I identified. If our conversations were a "big influence" on the new licenses, how about a little credit? ;)

I've read over the new licenses again, and I think there's a couple of small problems remaining in the Personal license. In the "Term, Termination, and Modification" section:

Either party may terminate the Agreement at any time, upon written notice to the other party.

This clause is very similar to one that was in the old license agreement:

Either Licensor or you may terminate this Agreement at any time.

My gut say that Six Apart does not have the right to terminate a user's Personal MT license at will. They can terminate a license for cause (violation of the license agreement), but it doesn't feel right to me that they should be able to terminate a license without cause. A user can voluntarily surrender (give up) their license, but Six Apart cannot take it away from a user unless the user violates the license agreement.

The second issue is in this clause (within the same section):

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.

This is the corresponding clause from the old license agreement:

General. This Agreement constitutes the entire understanding of the parties and revokes and supersedes all prior agreements, oral or written, between them and may not be modified or amended except in a writing signed by both parties hereto which specifically refers to this Agreement.

This new clause doesn't feel right either. Six Apart certainly has the right to charge fees for the software, and change the software itself (such as new versions of MT). Six Apart can even change the license terms, but the new terms cannot be made binding on prior licensees unless they take some sort of affirmative action to indicate agreement and consent to those new terms.

One way a user can indicate agreement and consent is by having to click an "I agree" button for the new license terms before downloading a new version of MT. But the new terms cannot just be automatically applied retroactively to all existing licensees of prior versions of MT.

There's some other terms in the licenses I think could use some clarification, but that's true of most licenses. I'm not sure a list of those terms would be helpful at this point in time, considering that the licenses are (probably) not in their final form yet.

Anil - If you think there's something else that merits more discussion, feel free to ask in the comments. What I've written in my two posts on the new license terms is really about all I have to say about the new licenses. I don't intend to look up and cite CA state law on the above two issues - you can change the terms or not, it's up to you. I don't think it would be a good idea for Six Apart to try to enforce those terms though.

Overall, the new licenses are a vast improvement over the old ones. No license agreement is (or will be) perfect, so make it the best you can before it gets cast into stone.

Update 20-May-2004: Phil Ringnalda posts about some of the terms that need clarification as well as the issues I identified above.