ArchiMate 3: What do the license changes mean?

With the release of ArchiMate 3, The Open Group has changed the text of the license as well as their explanation. What has changed, and what does it mean? (Note, as this is not about modelling with ArchiMate but about ‘what is an open standard and how does ArchiMate stack up?’, this has not been published on the Mastering ArchiMate blog).

A while back, I wrote about ArchiMate, especially answering the question: is ArchiMate actually an open standard? Most people assume ArchiMate is an open standard, especially because it is owned by a standards organisation called The Open Group.

photo-1457369804613-52c61a468e7d

Photo by Patrick Tomasso (I just was looking for a royalty-free picture, nothing special intended, except maybe that legal stuff is a maze of unstructured data)

Here is a short recap:

The recap

  1. There are various definitions of ‘open standard’. Most of these consider a standard to be truly open if it is
    1. Royalty-free (no barriers for any use)
    2. Maintained by a not-for-profit organisation
  2. ArchiMate fulfils neither of these requirements.
    1. ArchiMate is not (entirely) royalty-free
    2. The Open Group is a for-profit entity (The Open Group is a trade name of X/Open Ltd registered in the UK, which is owned by The Open Group LLC, which is registered in Delaware in the US. Neither are registered as not for profit and it is unclear what happens with te money.
  3. The Open Group subscribes to the definition of ‘open’ that says it must be licensed under ‘fair, reasonable and non-discriminatory’ (FRAND) terms (something quite common with respect to patents in the tech industries). By the way, when The Open Group uses the term ‘the standard’ it is equivalent to ‘the documentation’, or in other words: the text of the standard, not ‘the method’.
  4. Most countries that have rules about the use of open standards, e.g. in the public sector, subscribe to royalty-free and not-for-profit. Even Microsoft subscribes to this definition for crying out loud. Note: for those that do not want to commercially exploit ArchiMate (end-user organisations, which includes most of the public sector), ArchiMate is royalty-free — if they sign the Non-commercial License. The second requirement is still not met, though.
  5. The Commercial License for ArchiMate (at a minimum of $2500/year, depending on revenue of the license taker) only covers the copyright on the Documentation (not the method). However if you buy the paperback, you have already paid for that copyright in full and you can do everything you like with it, including using it for commercial purposes, exactly as you could use any other book you have bought. TOG tries to hide this fact.
  6. According to TOG, if you implement the ArchiMate standard in a tool, it counts as commercial use of the standard and you have to buy a commercial license. This is most likely utter legal balderdash, given how copyright works, though with a caveat — see below.

Though The Open Group cannot really force you to pay for the Commercial License if you just buy the paperback (with that caveat — see below), it is hard for anyone who wants to sell a tool that supports ArchiMate to tell people that the tool supports ArchiMate. Or to provide a training in ArchiMate. This is because the name of the standard — ArchiMate — is also a registered trademark. It is not perfectly clear what TOG can enforce here. Some things one can certainly not offer without TOG’s permission:

  • Certification of tools or training (this is what TOG can certainly protect with their trademark, because it is what they do themselves)

Some other things are uncertain:

  • Can one legally use the ArchiMate name in the name of a tool or a training? This is uncertain because ArchiMate is both the name of the standard and a registered trademark. It could be that because TOG uses the registered name as the name of the standard, they are not entitled the trademark protection that they like, because that name is the only way one can actually refer to the standard. Try this, though, and TOG will probably come after you.
  • Can one use the ArchiMate name in the description of a tool or a training? This is most likely legally allowed, but it is also possible that TOG will try to stop you, nonetheless.

I have asked TOG if they can clarify, but they are unwilling to do so. The only reason for that refusal that I can imagine is that they do not want to be open and transparent, because they are protecting a (hidden) commercial setup.

The very short recap is: TOG uses trademark on the ArchiMate name to make sure they can force those who want to use ArchiMate commercially to pay the legally unenforceable (yearly) commercial (copyright) license for the documentation.

ArchiMate is thus a semi-open, commercial standard. The most telling is this:TOG manages ArchiMate as a commercial product. It doesn’t act to spread that standard as far and wide as it can, it acts as a party that wants to make money from the standard as much as it can. Here is what The Open Group itself writes about its licensing conditions: “aimed at maintaining the value of the ArchiMate language in the market place“.

The full original story is here.

The caveat

(This is new information with respect to the original article). If you download the PDF with the standard from The Open Group web site, The Open Group tells you that it comes with a free 90-day Evaluation License. Before those 90 days are up, you are told you have to do one of three things:

  1. Buy a (yearly) Commercial License
  2. Sign a (perpetual) Non-commercial License
  3. Remove the downloaded document from your systems

Signing the Non-commercial License means that you sign that you will not use ‘the Documentation’ to sell tools, training and so forth. This is a bit of a question mark, because it does not say ‘the downloaded Documentation’, but ‘the Documentation’. Does that include the paperback that you may have bought separately? And the question thus becomes: if you sign the Non-commercial License,have you signed away your rights to use the paperback as you are allowed to under normal copyright?

I have asked TOG if they can clarify but they are unwilling to do so. The only reason I can imagine is that they do not want to be open and transparent about this, because they are protecting a (hidden) commercial setup. Uncertain as it is, my guess is that legally the evaluation (and thus the non-commercial) license holds for what you have downloaded only.

The summary is: if you want to use the standard (‘the Documentation’) commercially without having to cough up for a Commercial License: get the paperback. If you also download the PDF, don’t sign the Non-commercial License for it, but remove the PDF from your systems within 90 days and keep using the paperback. If you want to sign the Non-commercial License for the PDF, make sure you add ‘the downloaded’ before ‘Documentation’ so it is absolutely clear that you have only signed for the downloaded Documentation, not the published book. If TOG protests, the explanation should be entertaining.

I don’t think, by the way, that many end-user organisation or individual (not selling tools or training) have actually signed the Non-commercial License. And TOG never bothers about it. Let’s check: Are you using ArchiMate? Yes? Do you have signed any license? Probably not. See?

What has changed with ArchiMate 3, license-wise?

The first thing we notice is that both the web site and the license now explicitly state: “For the avoidance of doubt, the use of the Documentation for writing books or the provision of consultancy services does not require a commercial license.”. That sounds like an improvement, but frankly, given the earlier analysis and the limitations of copyright, this was already (legally) the case. TOG has just confirmed it and has stopped claiming something that was not based in legal fact anyway (namely: ‘using the ArchiMate standard for consultancy requires a Commercial License’). This leads to a couple of questions:

  1. Can the consultancy provide consultancy with respect to the use of the Documentation specifically, without a commercial license?
  2. Can the consultancy mention the (trademarked) ArchiMate name for the description of those services, without a commercial license?
  3. Can the consultancy specifically offer ‘ArchiMate modelling consultancy’, without a commercial license?

I have asked TOG if they can clarify but they are unwilling to do so. Maybe someone else can get them to clearly answer these questions (in the sense of ‘yes’ or ‘no’).

The second thing we notice is that the license now has stopped mentioning the real company that owns ArchiMate. It used to say: “Copyright © 2009 – 2013 X/Open Company Ltd., trading as The Open Group.” and now it says “Copyright © 2009 – 2016 The Open Group.”. Now, I don’t think ownership of ArchiMate has moved to The Open Group LLC in Delaware US. It looks more like that TOG does not like the world to know they are actually a company called X/Open Ltd., because that only facilitates nosy people with difficult questions :-).

TOG apparently still holds the utter silly position that creating a tool that supports ArchiMate modelling is a sort of ‘copy’ of the documentation under copyright law and thus requires a commercial (copyright) license. One is reminded (even if the situations are different) of the failed attempt by SCO to stop Linux in its tracks.

Conclusion

I would not classify ArchiMate as an open standard. ArchiMate is a commercial standard with a “value in the market place” that TOG wants to protect. TOG’s recent changes to the legal stuff change effectively nothing, except that they seem to try to hide that fact even more.

Note: People may get the impression that I am some sort of open source geek who wants everything to be free. Quite the opposite, I can assure you. I like commercial enterprise, I really do. I dislike piracy and illegal downloading (it’s theft, whatever excuse you use). But I can’t hide that there are things here that I do not like. And in this case it is a form of dishonesty. Being a commercial enterprise (or a collaboration of enterprises) is fine. Being a commercial enterprise that poses as some sort of public good (and does its best to hide certain information, or keep people confused, in order to protect that ‘value’) doesn’t fit my value system.

It is also time to end this line of research for now. I’m back to using ArchiMate and writing about it (and about Enterprise Architecture in general). I’m getting very unpopular in TOG circles as it is, and I actually like ArchiMate a lot.

Afterthought

I suspect TOG’s legal minds have taken the legal setup surrounding UNIX® and used that to protect other things, such as ArchiMate. At one time, TOG said it was an “international vendor and technology-neutral consortium committed to delivering greater business efficiency [through interoperability testing]”, in other words: a collaboration of commercial vendors trying to protect shared commercial interests by collaborating on interoperability.

But there are fundamental differences between ‘interoperability between software products’ (based on a standard) and a methodology standard such as ArchiMate is. If anything comes close to these ‘interoperability’ origins it might be the ArchiMate exchange format.

Disclaimer

The conclusions I draw in this article and the previous one are without any warranty. I am not even a legal specialist, in this case more akin to an investigative journalist. If you want a real legal opinion, ask a legal professional. My knowledge about matters like this comes from having been slightly active on this subject in the 90’s, having worked (as architect) in a legal environment, and from close reading and asking questions.

Appendix, July 28

When I announced this post in the ArchiMate LinkedIn Group, it was deleted by the Group’s owner (Marc Lankhorst of BiZZdesign). This led to a lengthy discussion between him and me about censorship and such. In the end, Marc let me repost that announcement, but he would close the discussion immediately and point people here. He has done this, but not after putting the following in his comment (to which I cannot comment there, only here):

My personal take on this: I wouldn’t go to Gerben for legal advice on this matter, since he is no lawyer (as he also states), and I find his conspiracy theories rather silly. But he is of course entitled to his own opinion.

I do object, however, to his implicit suggestion of wrongdoing and his veiled attacks on the Open Group staff (e.g. initially using a picture of a vulture on this blog, insinuations about their salaries in the previous one). I consider these tasteless, inappropriate and not in accordance with group policy. I have therefore closed this discussion. If you want to comment, please go to Gerben’s own blog.

This was unnecessary and it requires me to write a reaction here.

I am not a lawyer. But my original article was read by two legal experts in this field. One publishes about these matters, the other is a lawyer in these matters and they could not find a fault in what I wrote. I also have some past experience in copyright discussions surrounding software (as part of my work) and have in the past once written a legal contract for selling of a domain name which was afterwards judged as perfect/faultless by a university professor in the field of copyright. So, no, I am not a lawyer, but that does not mean what I actually wrote was wrong (as Marc suggests). Actually, the fact that I am so careful to point out that I am not a lawyer, nor a legal specialist only illustrates that I know one needs to be very secure in these matters.

With respect to the vulture picture, it was a quick choice to get something there and it was chosen to more or less represent me, putting my ‘claws’ in a subject. To prevent misunderstanding, I replaced that picture with the one above. This represents how much I had to study and read for all of this…

With respect to ‘conspiracy theory’ and ‘insinuations’. During my discussion with Marc, he was unable to point to anything I had written that was not based in fact. E.g. the story about the salary cost of the people working for X/Open Ltd (the firm behind the The Open Group name) comes factually from their own records. The fact that you cannot copyright a method is (legal) fact (and a ‘suggestion’ in the meantime, possibly as a result of my exposure, has been removed by TOG from the license text). I challenge Marc or TOG to point out anything in my posts that is factually incorrect or that does not clearly signal uncertainty where uncertainty (e.g. about legal opinion) is warranted. I have not accused TOG of any ‘wrongdoing’, everything they do is perfectly legal and I have stated that. However, ArchiMate remains a commercially exploited standard, it is ‘open’ (under FRAND terms) but not ‘royalty free’ (as most definitions of ‘open’ demand).  It is not maintained by a not-for-profit organisation (as most definitions of ‘open’ demand). There is nothing wrong or illegal with that state of affairs. It is, however, in my view somewhat deceitful (though not illegal) to hide that fact. It is also in my view somewhat deceitful (though not illegal) to suggest claims that are in my estimation ‘unsupported by a legal basis’. And it is legal, but not very open, to hide behind the protection that the state of Delaware offers to The Open Group LLC, the owner of X/Open Ltd. That is not a conspiracy, but it does suggest a very, very commercial attitude.

I write with a sharp pen (even if it is a keyboard), a sharp pen can be part of the entertainment that is provided by writers to their readers. Writers like one thing above all: readers enjoying themselves. But nothing I have written was wrong, all interpretations have been marked as such and are presented with an appropriate level of uncertainty. The anger of those that were subject of these posts suggests to me that they were unwelcome because they were correct and not easily countered. With that, I’d like to close my writings on this subject. ArchiMate is a commercial standard. I’m fine with that.

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9 Responses to ArchiMate 3: What do the license changes mean?

  1. Pingback: Follow-up to “Is ArchiMate Open?” | Mastering ArchiMate

  2. Ian Mitchell says:

    Reblogged this on the artful modeller and commented:
    This may seem like a really involved and arcane legal argument, but the author makes some really important points about the nature of ‘open’ standards, as they apply to Archimate.
    And he does it in a clear, concise and witty style, which makes it well worth a read. And you’ll learn LOADS about the legalities of intellectual property, and what DELAWARE means. Highly recommended for anyone thinking of basing their business around Archimate products or services.

    Like

  3. m3b says:

    Dear Gerben, should’nt you write ArchiMate® instead of ArchiMate (without that little®) all over your posts, following the example of the official ArchiMate® website ? http://www.opengroup.org/subjectareas/enterprise/archimate 😉

    Like

    • gctwnl says:

      It is generally not required to print the ® everywhere you use a registered trademark. It is generally OK to mention it once at the beginning and put somewhere that you acknowledge the fact that it is a Registered Trademark. As an interesting aside, not even in the text of the ArchiMate Licenses is the word ‘ArchiMate’ always followed by an ®.

      Like

      • m3b says:

        Good to know. Interesting that the new Opengroup standard is another kind of open standard : I’m speaking about IT4IT™ .

        Joking aside, all this legal stuff should be fully explained in layman’s terms by the OpenGroup to us, architecture practicioners.

        Like

      • gctwnl says:

        I had a quick look (just insatiably curious) and it seems to me that the licensing conditions for IT4IT are indeed completely equivalent to those of ArchiMate. The fact that one is a Registered Trademark (®) and the other just a Trademark (™) is not a big deal. See http://info.legalzoom.com/registered-vs-unregistered-trademark-21089.html

        Like

  4. m3b says:

    I went to that website and read : “You can register a trademark using an online legal document preparation service; the fee depends on the application type. **Once your trademark is approved and registered***, you may legally use the registered trademark symbol — an encircled letter ‘R’ ” . As IT4IT is relatively new, let’s wait a little longer to see if IT4IT™ becomes IT4IT® .

    Like

  5. Steve says:

    This is really important discussions and I am surprised it is not of more importance to architects in our field. Perhaps a new truly open language that uses the many

    For clarity on X/Open Limited you can use a useful tool from the British Companies Register. This link has the full accounts for X/Open Limited
    https://beta.companieshouse.gov.uk/company/02134862/filing-history

    The companies financial accounts are there to see as are their objectives for IP protection. $628,000 profit in 2015.

    Like

  6. Roger James says:

    Leaving the somewhat sneaky presentation of itself by the Open Group to one side, the trademark/copyright idea originates with Marc Lankhorst. He was already threatening people back in 2005 with trademark infringement proceedings.

    Like

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