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Comment by pclmulqdq | Hacker News Reader

The BSL (the proposed license) is fairly clear about this if you read the license. Most sole proprietorships and corporations of all types that make money or sell a product using it would have to pay. It's not clear that any of this is legally enforceable, though.

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> It's not clear that any of this is legally enforceable, though.

I'm pretty sure that it is legally enforceable in most jurisdictions, B2B contracts are almost always stronger/more binding than consumer ones (since that protections granted under consumer protection laws are gone, and there is a reasonable presumption that the parties have read and understand the contract). The blurrier part is for sole proprietorships, since it depends on whether their specific jurisdiction considers them as consumers under consumer protection laws (which uniformly weakens contracts to the extent that it does not comply with the guarantees for consumers).

(Note that in most jurisdictions, most "copyright licenses" are considered as contracts. For example, multiple cases in French courts have resolved that GPL2 is considered a contract.)

Also, the license text: https://mariadb.com/bsl11/

That's curious. In the UK a contract requires consideration and I can't see any here.

Contracts in the US also require consideration (IIRC from my intro biz law class). IANAL, but I think that the consideration is allowing you to use the IP (in exchange for your compliance with the license).

The software project gives the other party IP to use, and gets nothing in return. Might not even be told the other party is using their software.

I don't think accepting a contract can qualify as consideration for that contract, as otherwise there would never be a need for consideration in any contract.

Ah. Going at it from the other side, wouldn't compliance with the rules regarding distribution / improvement etc be what the project is getting in return?

I'm not sure if English laws allows substitution, but technically in US law this contract indeed don't have a consideration. While mutual consideration makes it enforceable, the lack of it doesn't automatically make the contract void. You could argue that there's promissory estoppel:

> Promissory estoppel/detrimental reliance: A contract without consideration is enforceable if the nonperformance of the promisor will cause injustice. Elements of promissory estoppel are (i) the promise has reasonable, foreseeable, and detrimental reliance on the promisor, and (ii) the enforcement of the promise is necessary to avoid injustice.

In this case, you are nearly correct that the performance to honor the terms of the contract is essential, but technically not a consideration. (The IP code is consideration though.)

FYI, consideration is required in English law, but not in Scots law.

As others have pointed out, a lot of common law jurisdictions require that contracts have consideration from both parties. This is the key issue with non-permissive open-source licensing (and it's an issue with the GPL/AGPL too).

Restrictive covenants on open source licenses might not be consideration, particularly because they apply to the IP licensed in the contract - something that the user/downloader of the software wouldn't have without the contract. In other words, you are giving them rights to use your IP in a few specific ways in exchange for nothing. They need to give up something of value that they wouldn't have otherwise had for it to undeniably be consideration.

> require that contracts have consideration from both parties.

Again (https://news.ycombinator.com/item?id=33587891), this is a misconception. Unless there's something in the contract that is outright illegal, mutual consideration automatically binds parties into the contract, but the absence of it does not automatically voids the contract (see one-way NDAs between companies and promissory notes). Worse, you've confused consideration with a monetary value. Consideration don't need to be a monetary value: often, it's performance. This can get confusing because often contracts have a monetary consideration for a performance consideration (for example, paying for mowing the loan), but in this case it has been inverted: for not using it commercially (performance consideration) you can use the IP (monetary consideration).

I think the issue is that not using it commercially may not actually be consideration depending on how you frame it. Your last sentence could easily be reworded as: "in exchange for nothing, you get the right to use the IP non-commercially." This is definitely not an enforceable contract as constructed under any theory.

Courts haven't yet determined which construction is correct.

Edit: I will also add that I said "of value" not "of monetary value." Lots of things with value don't have well-defined monetary value.

Conservancy v Vizio (in the USA) argues that the GPL is also a contract and that they are entitled to GPL compliance as a third-party beneficiary of the GPL contract:

https://sfconservancy.org/copyleft-compliance/vizio.html

> It's not clear that any of this is legally enforceable, though.

In the absence of an enforceable license isn't the default no rights, not all rights? So why would a user make that argument?

So if I work for a commercial company, but exclusively use the software for internal, non-sold activities is that ok? It is only when the software is used within a commercial product directly or is it anything that enable a commercial company to keep the lights running?

That's a decision for you (and your lawyer) to make after you read the license.

They might have an argument against you if the software is at all part of your value chain.

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