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I am using syntevo's SmartGit software for hobbyist projects, which falls under their non-commercial license so I can use the tool for free:

3.2.1 If a SOFTWARE Non-Commercial License is agreed-upon with the licensee, the licensor grants to licensee the non-exclusive, non-transferable and permanent right, which is limited according to the terms of clause 7 and terminated according to the terms of clause 3.2.1.1, to have the SOFTWARE used on a arbitrary number of single-user computers or on a central server or via terminal server clients, simultaneously by a arbitrary number of users, solely for non-commercial purposes. A purpose is considered non-commercial only if the SOFTWARE is exclusively used

  • to actively work on open-source projects,
  • for learning or teaching on a public academic institution,
  • in the spare time to manage projects where you don't get financial compensation for (hobby usage),
  • by public charitable organizations primarily targeting philanthropy, health research, education or social well-being.

Now one of my projects may grow beyond the scope of a hobbyist game, and I was wondering where exactly the threshold lies between commercial and non-commercial use.

Specifically, if I start development of the game with commercial use in mind, but I don't make any money (no kickstarter, no external funding through government grants, etc). I don't employ anyone yet and I am making everything on my own. I don't have a publisher or anything like it but I am starting to build a community. I have a regular day job unrelated to game design.

Somewhere on the scale "hobby usage" --> "hobby, but possible commercial intent" --> "fully commercial development" the usage rights switch from non-commercial license to commercial license.

Can anyone help me draw that line?

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2 Answers 2

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Based on the ToS provision quoted in the question, the moment that the person receives financial compensation of any sort, in any amount, for the project, the project is non-commercial, and the person must obtain a commercial license. Note that if the project is open source, this wouldn't apply, even if the open source project charges a fee for the software, as some do. It also wouldn't apply if one of the other exceptions, such as teaching use, applies.

Furthermore if the project has become a full-time occupation for the developer, and can no longer be honestly called a "spare time" project, it no longer fits the "hobby project" category, and if it is not an open source project and none of the other exceptions apply, a commercial license must be obtained.

The intent to make a hobby project commercial in the future should not matter, as long as no money is being received by the developer for the project, and it is still a spare-time project.

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The difference between commercial and non-commercial software use is about as clear as it gets, outlined by the definitions in the license above. One makes money, the other doesn't. There is no gray area. Your intent or expectations for a project may seem to alter the difference between the two and add a gray area in your mind, but they don't. Once you are a commercial user, buy a commercial license and/or upgrade the non-commercial license to commercial.

That's the legal angle; and what is illegal and what is unethical are not always the same. If you still feel like your intent does make a difference and you feel unethical about using a non-commercial license - because you are building a community and hoping/planning on making money - buy the commercial license to begin with.

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    So if I understand you correctly, the project is non-commercial until I start receiving money? It seems a bit weird to me that someone can make a product using a non-commercial license, and once the project is finished and they do start making money on the product but don't need the licensed software anymore, the licensor has no right to any recompense under the license they chose? Is that what you meant by the distinction between ethical and legal?
    – Cerno
    Commented Jan 1, 2019 at 23:34
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    It's an odd software project where you don't need to make any more changes after you start shopping your first release to potential customers. Indeed, I've never seen such a beast -- normally, once you start trying to attract customers, they want features and bugfixes. And if you're making a change because a potential customer told you they'd become an actual customer if you made it... well, that's pretty clearly across the line where it's time to be paying.
    – Charles Duffy
    Commented Jan 2, 2019 at 1:29
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    @Cerno The license could state something like "if you think you'll ever make money with this in the future, or are simply using it to develop something that will make money and you'll dump us as soon as that, then you must buy a commercial license." But it doesn't, because that's onerous and probably may scare people away. A license can only attempt to take every situation into account. And that's where, I think, it gets into ethics; what you are doing is not against the TOS as written, but if you feel like it is, that's ethics. Buying a license could be the ethical thing to do.
    – BlueDogRanch
    Commented Jan 2, 2019 at 3:26
  • Does this include projects where they say "consider donating to support the development"? Do those donations, which are not linked to buying a license for the project, make the software commercial? Maybe that's what the OP was considering a gray area?
    – Bakuriu
    Commented Jan 2, 2019 at 9:12
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    @Cerno, ...frankly, with my software-developer hat on, I'd argue that getting comfortable using git itself (with no fancy UI in front of it at all, except maybe something trivial like tig) is well worth the time spent. Too many UIs try to isolate people from understanding how the tool works, and that's doing someone more harm than help; if you don't grok git's conceptual model because some UI isolated you from it, you're setting yourself up for suffering later. Better to bite the bullet and cram the model into your head early; once that's done, you don't need a UI.
    – Charles Duffy
    Commented Jan 4, 2019 at 1:54

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