Commons Clause or Cartel Clause?

I have been looking at the Commons Clause License again, after reading how open licensing blew its biggest opportunity of the 2010s linked from an opinion piece crossposted from this forum.

I really like the idea of license ‘patches’, and I am sure I have come across an online tool where you can select the clauses you want for a license and curate them together to make a customized license but I can’t find the link.

Anyway, I don’t know much about European law and even less about US law but what I do know is that agreeing not to compete with someone is an exenmplary case of a business cartel, which AFAIK is illegal in most european states.

As such, this clause feels as if it is motivated by an anti-competitive sentiment.

Now, I am the last person on earth to defend the ‘principles’ of the free market, and while my interpretation is highly speculative, the ‘cartel’ aspect of this clause I think may be a problem / oversight?

Even if it checks out legally for US developers, it’s certainly a misnomer/euphemism to call this clause a ‘commons’ clause… because I don’t see it as servicing the needs of a commons-based system. It seems squarely to meet the needs of the producers who sign up for it, and since these entities are likely to be firms, calling this a ‘Cartel Clause’ I don’t think is being too dramatic?

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The Cross License Collaborative (XLC) that Kyle has proposed is interesting to me as there is no central actor:

One still has to define / approve a contribution as being meaningful or how it relates to fairness amongst collaborators.

I don’t know if this can be considered a cartel? It seems much more Commons than the Commons clause :wink:

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I’m not sure I follow. Commons Clause users aren’t ganging up with each other and agreeing not to compete. Many of them are database companies, or cloud management software companies, in competition with one another.

There are laws, in the US and EU, about refusing to deal with other companies. But they’re usually predicated on having some dominant market position. So if you’re a national railroad monopoly, you can’t refuse to deal with a farmer to take their grain to market. And if you’re part of a railroad duopoly, you can’t agree with your only competitor to divide up the country and not compete in each other’s territories. But as one of many distributed database vendors, I don’t think competition law requires you to do a licensing deal with anyone who asks, for pay or for free.

This is all in very broad brush strokes. And please don’t mistake me for either a US antitrust specialist or an EU-qualified lawyers!

@boris, I’m really glad you’re still excited about XLC. I still think it’s one of the few really good, original ideas I’ve had in law practice. But I don’t hear too much about it from others.

I do think at some point I’ll also publish forms for one-off deals with “outside” contributors. But in many cases, I think XLC is actually how I’d prefer to work on a project.

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This is what happened. I took your generalization too literally:

+ But don't use it to compete with its developer.

That seems to explain the confusion about the cartel thing…

The ‘Commons Clause’ name does seem to be unconventional though… that issue seems to be simmering?

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Words can’t express the feeling I felt about that name choice and its reception. The people who picked it, plus the people scoring “points” by denouncing it, should all know better.

I’d’ve preferred to continue thinking we were all collectively better than wasting our precious energy like this.

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Not being facetious, but what is their game then?

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I may have picked up the wrong end of the stick with XLC, but my general impression is it tries to carve out a niche with technicalities, rather than with, (say) a broader approach to rule-making that include the political realities of persons and groups? If I’m right, then the target audience may well be more attracted to a framework something like in combination with something more tangible/less abstract/technical like maybe

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I think it’s a license that purposefully covers the software / rights parts while leaving wiggle room to bring tools like the ones you linked.

Both new to me! The collective I’m part of uses Loomio as another example.

I like the distinction. I don’t think we’ve seen enough usage in action to see where the XLC edge cases are. Defining a contribution, defining how revenue gets accepted individually but also pooled.

Open Collective is another tool here that could avoid having to create a formal legal entity.