The ethics of selling open source

A few months ago on Twitter I read of an iOS app, which was freely available on the Apple App Store, had reportedly been lifted from the public GitHub repository, had minor modifications made (app name, creator, icon), and was being resold on the App Store for $9.99 USD. Quite predictably, the plaintiff (to use legal terminology) was rather upset, for his months of free work was stolen and published for profit on a market where such clones are not allowed by strict policy. He was outraged that the defendant would act so unethically. The people who initially replied were supportive of the plaintiff, even discovering the defendant was buying Twitter ads to promote the clone.

Like everything that gains much response, first come the supporters, then the haters or dissenters. Soon thereafter, people began to point out that since app was open source and licensed under the MIT license, it was perfectly legal to sell. Suggestions were made stating the plaintiff should have used a more restrictive license if he wanted to avoid this. Finally, there were comments like the following:

Can’t comment on App Store policy or ethics, but MIT license literally allows selling a clone. You gave permission.

How is this unethical? You literally said people are allowed to do this.

But ultimately, if you don’t want your stuff closed and sold for someone else’s profit, perhaps a more viral license is in order?

The plaintiff responded to each of these remarks with the same reply: he was outraged not because it is legal to sell his app, but because the defendant’s actions were unethical (charging for and promoting an already free app without making any significant changes) and because Apple let the clone pass through their infamously strict moderation.

Finally, there was a response from the defendant, which appeared to be an attempt to justify their actions.

This app is largely a parody, as is the price, read the iTunes description. Your github source code is MIT licensed. Deep breath.

This incident prompted me to think about the act of selling OSS on both a legal and ethical level. Legally, selling open source is allowed under the most prominent OSS licenses, so unless you use a license that forbids selling, anyone is perfectly allowed to reuse, and resell, your code. There are games on the Mac App Store that follow this model. If you can compile the game yourself it is free, otherwise it will cost $3.00 USD.

But what about ethics? Is is ethical to sell open source? That really depends on the context and personal point-of-view. Before we discuss this, we first need to define the words “legal“, “ethics“, and “ethical“.

1. permitted by law; lawful
3. appointed, established, or authorized by law; deriving authority from law.

1. a system of moral principles
2. the rules of conduct recognized in respect to a particular class of human actions or a particular group, culture, etc.
3. moral principles, as of an individual
4. that branch of philosophy dealing with values relating to human conduct, with respect to the rightness and wrongness of certain actions and to the goodness and badness of the motives and ends of such actions.

1. pertaining to or dealing with morals or the principles of morality; pertaining to right and wrong in conduct.
2. being in accordance with the rules or standards for right conduct or practice, especially the standards of a profession

As we can see from these definitions, legal and ethical are two different things. Legal is defined by law, be it local, state, national, or international. Laws are (usually) clear-cut, so it is obvious if something is illegal. For example, murder is an illegal action, as it arson and theft. These actions will land a person in trouble and jail, prison, or death, depending on the severity of the offense. On the other hand, an unethical action can be open to personal perspective, though there are general, common ethical beliefs. Plagiarism is near-universally considered unethical, as is not paying a worker for their hired work.

According to the plaintiff, the defendant acted in an unethical manner. In his perspective, though it was legal for his app to be sold it was not ethical, for it was already freely available and the clone added no new features to distinguish itself nor did it credit the plaintiff. His critics were confusing legally allowed and ethically allowed, the true root of the conflict.

Now that it has been established that under certain licenses OSS can be legally sold for money and the difference between legally allowed and ethically right explained, is it therefore ethical to earn money from code that is freely available? I would say it all hinges on the app’s specific situation and context. In the Mac App Store example such is acceptable, as the majority of people will not know how to compile the game, so the money spent goes towards purchasing the necessary resources for the developers to continue development. GitHub, despite having open sourced a lot (but not all) of its code, has tiered paid accounts. This is acceptable as they must host and pay for the resources to run millions of Git repositories, pay their staff, and upgrade their servers with new hardware/software as often as needed.

In the case of this clone iOS app, I agree with the plaintiff that the defendant’s actions were unethical. It is one thing to reuse and build on top of a person’s work for your paid code (provided proper attribution is given), but changing nothing but the name and removing attribution then selling it using the fact the original code was open source is wrong, no matter what your intentions may have been (the clone author later revealed this was done for unspecified “research”, an explanation that did not satisfy the plaintiff). As kids we learn that stealing and lying are wrong and get us in trouble. What we learned then still applies in the digital world now.

The ethics of selling open source is a tricky subject with much gray area, and this post certainly has not been an easy to write. While the legal right can be easily deduced by what kind of license the project is under, one must take into account the project’s context, community, usage and abilities, and if you made a derivative work the extent of changes made, in order to determine the ethical right. You never know if you will receive backlash or praise over your doings. We must be very careful to act in a legal and ethical manner when selling open source, and if you receive backlash, be sure to have logically sound and ethically right arguments to explain yourself or you will have no choice but to back down because you acted out of line.