Yeah, it's not open source, the licence violates point five of the OSD https://opensource.org/osd

It's also not Free Software, as it also violates the Free Software definition[0].

0. https://www.gnu.org/philosophy/free-sw.en.html

Of course. Has anyone ever found a case of a license that not one or the other?

The Free Software Definition and the Open Source Definition are structured differently, but pretty obviously map from one to another.

There's plenty of OSD licenses that don't fit the FSD, but a free software license is necessarily open source, so the opposite can't happen.

I’d really be interested in an example of such a license. Where is the difference in the two definitions?

Not OP, but I linked to some details here:

https://news.ycombinator.com/item?id=43581484

The NASA Open Source Agreement is the one I found.

Thank you!

GNU has a helpful chart where they clearly show that there is a sliver of "nonfree open source" licenses that are available [0].

> The term “open source” software is used by some people to mean more or less the same category as free software. It is not exactly the same class of software: they accept some licenses that we consider too restrictive, and there are free software licenses they have not accepted. However, the differences in extension of the category are small: we know of only a few cases of source code that is open source but not free.

I was able to find one example, the NASA Open Source Agreement, which is accepted by the OSI [1] but rejected by the FSF [2]:

> The NASA Open Source Agreement, version 1.3, is not a free software license because it includes a provision requiring changes to be your “original creation”. Free software development depends on combining code from third parties, and the NASA license doesn't permit this.

[0] https://www.gnu.org/philosophy/categories.html

[1] https://opensource.org/license/nasa1-3-php

[2] https://www.gnu.org/licenses/license-list.html#NASA

Guarantee that all "nonfree open source" is different readings. Take the NASA case. If youu read it as strictly as Stallman does then it violates the OSD also. The people at OSI at the time it was submitted read it more like a lawyer and decided it was compliant. Possibly today's OSI would disagree. Possibly tomorrow's FSF would agree. It's not a difference between free software and open source but a difference between how two sets of humans interpreted the text of the license.

Which point of the OSD would be violated by the NASA clause if read the same way that the FSF reads it?

OSD 3

And possibly 9

Eh, OSD 3 just says that derived works must be possible, it doesn't say that you must be able to incorporate third party source code into the derived work. Meanwhile the FSF's definition explicitly calls out this freedom as an essential component of Freedom 1:

> One important way to modify a program is by merging in available free subroutines and modules. If the program's license says that you cannot merge in a suitably licensed existing module—for instance, if it requires you to be the copyright holder of any code you add—then the license is too restrictive to qualify as free.

https://www.gnu.org/philosophy/free-sw.en.html#four-freedoms

Yeah, it's more of a "source available" than Open Source in its definition. I'd rather they use AGPL or something like that.

To put it another way they want to call it open source without actually being open source.

I don’t think they actually call it open source themselves – rather, the HN poster made a (probably benign) mistake.

The founder does. See: https://x.com/shl/status/1908090697984426227

Yikes :-(

It's not a mistake because someone doesn't subscribe to the same definition as you. There are 2 widely competing definitions that are both perfectly valid, if you want to be more specific you can say "not OSI approved" to more accurately reflect what you're talking about, if you don't want to do that then you can understand how others feel.

I used to make a bigger deal about this, but now I think that whether something calls itself Open Source is less relevant than if bait and switches are being done.

Teasing a release on X is less bothersome than what Matrix is doing by relicensing from Apache to AGPL and making what was billed as a vendor neutral communication platform not so vendor neutral. The people working at Element certainly don't want to use Matrix/Element under the AGPL, so why should they expect earlier users and members of their community like me to want to use it under the AGPL?

There was a time when saying Open Source meant something by itself. Now you have to include details like the license, what exactly is under the license, and the leadership.

> You may use the software under this license only if (1) your company has less than 1 million USD (2024) total revenue in the prior tax year, and less than 10 million USD (2024) GMV (Gross Merchandise Value), or (2) you are a non-profit organization or government entity. Adjust the revenue threshold for inflation according to the United States Bureau of Labor Statistics' consumer price index for all urban consumers, U.S. city average, for all items, not seasonally adjusted, 1982–1984=100 reference base.

Even more so for individuals.

Use the source as inspiration and create something new in a more modern language/framework.

It would be a bad idea to read any of this code if you're working on a competitor based on the license terms.

I would say the risk of a lawsuit is infinitessimal.

So if it someone uses this software to build a $10M GMV per annum business, it's completely unclear the pounds of flesh Gumroad et. al will want as their cut.

Yes but before you reach this point you probably have a bit of time to start discussing with them ?

By the time licensing becomes relevant, your business is built around the platform and this gives Gumroad an unreasonable advantage in any negotiations. Imagine what they could say:

- You're now a competitor. Stop using our software (you can still sell on gumroad.com, hint hint)

- Give us 20% for 1 year (next year, who knows...)

- We won't give you a license, but we'll buy you out for next to nothing.

And at that point they can ask for anything because the alternative would be rewriting all your code.