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Open Source Licensing

Roger Clarke

Chair, AEShareNet Limited

Principal, Xamax Consultancy Pty Ltd, Canberra

Visiting Professor, Baker & McKenzie Cyberspace Law & Policy Centre, University of N.S.W.

Visiting Fellow, Department of Computer Science, Australian National University

This is a companion resource to papers on The Spectrum of Content Licensing and Open Source and Open Content as Models for e-Business

Version of 25 September 2003

© Xamax Consultancy Pty Ltd, 2003

This document is at http://www.rogerclarke.com/EC/OSLic.html

Abstract

This paper provides background information on the dissemination of software by means of open source licences.

Contents

• 1. Closed, 'Lock in' or 'Proprietary' Software
• 2. Public Domain Software
• 3. Open Source Software
• 4. Open Source Software Licence Terms
• Resources
• References
• Examples of Software Available under Open Source Licences

1. Closed, 'Lock in' or 'Proprietary' Software

'Open source software' is distinguished from software that is only available under highly restrictive copyright licence terms. Very commonly, owners of the copyright in software use copyright law to prevent their software from being copied, adapted, or re-distributed (either in the original or an adapted form). If those actions are permitted at all, then they are likely to be subject to tight limitations and high fees.

Such an approach is sometimes referred to as 'proprietary', but that is not an appropriate term. The term 'closed' is better. Another descriptor that has been proposed is 'lock in' software (Scott 2003).

Whatever the approach many be called, it represents the active exercise of copyright law by the owner in an endeavour to maximise financial returns, and as a direct weapon against both competitors and customers.

2. Public Domain Software

The owner of 'open source software', on the other hand, seeks to ensure that software is readily available to anyone.

The obvious thing to do would be to release it into the public domain. Unfortunately, this is not an effective way to achieve the aim. One reason is that copyright law enables other people to use the public domain materials to generate copyright-protected works, even if, in doing so, they make no significant intellectual contribution. Another reason is that the executable code might be readily available, but the source-code might not be.

3. Open Source Software

The open source software approach works within conventional copyright law in order to achieve openness. The owner asserts ownership of the software, but then makes it available under relatively very liberal licence terms.

The motivation for openness is that software should not be thought of as being a fixed product. It needs to evolve. The only efficient way for evolution to occur is by enabling copies to mutate. That requires free availability of both the executable code, and of the source-code from which the executable is derived. Open source software is readily subjected to peer review, bugs and insecurities are more likely to be discovered, and cumulative progress is more likely.

• Within these broad parameters, there are two major flavours:
• the 'Free Software' movement, which has been active since 1984. Driven by Richard Stallman, the movement is strongly ideological; and
• the related but somewhat different 'Open Source' movement, which has been active since 1998. Its orientation is less ideological and more commercial.

A key difference between the two is that 'open source' software can be used to create 'closed source', proprietary software; whereas the 'free software' philosophy precludes that. The Free Software Foundation provides an explanation of the distinctions between the two. The Open Source movement distances itself from Stallman, claiming to be "a pitch for 'free software' on solid pragmatic grounds rather than ideological tub-thumping".

It is important to appreciate the concepts of 'free' and 'open':

* 'open' means 'openly accessible'; and

* 'free' does not mean 'gratis', but rather refers to 'freedom to exploit'.

An open source software licence might be gratis, but that it may require the payment of a fee, and possibly a high fee. In any case, services associated with open source software very probably do cost money, e.g. the media on which it is stored, installation advice, customisation, and maintenance services.

4. Open Source Software Licence Terms

Features of open source software licences fall under the following broad categories. Note that some are absolute requirements, but many are implemented in a variety of ways.

It is fundamental that there be ready availability of:

• the copyright licence; and
• both the executable-code and the source-code from which the executable was derived;

The licences needs to provide a number of permissions, in particular:

• the licence must grant permission to run the executable;
• the licence must grant permission to copy both the source and executable forms of the software;
• the licence must grant permission to re-distribute copies of the source and executable forms of the software. This may be subject to the further requirement that no kind of fee is charged for it;
• the licence must grant permission to adapt the source and executable forms of the software;
• the licence must grant permission to distribute an adapted version of both the source and the executable, but this may be subject to some conditions that are discussed below; and
• the licence must grant permission to re-distribute the software as a component of a larger collection of software. Once again, further conditions may be imposed.

The licence may then impose a number of constraints, in particular:

• the terms of the licence under which a distribution is made. There are two flavours of this:
  • the addition of any further restrictions is precluded, i.e. the licence is required to be no less liberal than the original licence. If so, then it is 'free software', and the term 'copyleft' is used to describe the nature of the licence. The GNU General Public Licence (GPL) is an example of a copyleft licence; or
  • the re-distributor may be permitted to impose restrictive conditions on the new licences. If so, the adapted versions might still be 'open source', but are not 'free software'. But the licences might be highly restrictive, i.e. closed or lock-in software. To find out, it's necessary to read the licence conditions very carefully;
• additional terms are generally necessary, because the intricacies of copyright law leave loopholes which could be used to subvert the intention of the original licensor.

Software may be available under an open source licence if used for some purposes, or by some categories of person; but not otherwise. For example, not-for-profit use may be permitted, but not for-profit use. (Differential licences are, however, a subject of some debate).

Resources

The following are resources relevant to 'open source':

• the 'free software' movement:
  • Free Software Foundation (1985-)
  • Gnu Public Licence (GPL)
  • Gnu Lesser General Public Licence (LGPL), for code-libraries
  • CopyLeft
• the 'open source' initiative:
  • Brendan Scott's 'Open Source AU'
  • FreeBSD Licence (1979-)
  • Shareware (1983-)
  • Open Source Institute
  • Design Science Licence
• economics of open source:
  • The Free/Open Source Software (F/OSS) Research Community

References

Gabriel R.P. & Goldman R. (2002) 'Open Source: Beyond the Fairytales' August 2003, at http://opensource.mit.edu/papers/gabrielgoldman.pdf

Green E.L. (2002) 'Economics of Open Source Software', rev. December 2002, at http://badtux.org/home/eric/editorial/economics.php

Iannacci F. (2002) 'The Economics of Open-Source Networks', October 2002, at http://opensource.mit.edu/papers/iannacci.pdf

Lerner J. & Tirole J. (2000) 'The Simple Economics of Open Source' National Bureau of Economic Research, Boston Mass., Working Paper 7600, at http://www.nber.org/papers/w7600

Pal N. & Madanmohan T.R. (2001) 'Competing on Open Source: Strategies and Practise' January 2002, at http://opensource.mit.edu/papers/madanmohan.pdf

Raymond E.S. (1998) 'The Cathedral and the Bazaar' First Monday 3,3 (March 1998), at http://www.firstmonday.org/issues/issue3_3/raymond/

Scott B. (2003) 'Lock in Software', March 2003, at http://www.members.optushome.com.au/brendanscott/papers/lockinsoftwarebrendanscott.html

Stutz M. (2000?) 'Copyleft and the Information Renaissance', at http://dsl.org/copyleft/

Stutz M. (2000) 'Open Source Beyond Software' O'Reilly Network, August 2000, at http://linux.oreillynet.com/lpt/a//linux/2000/08/01/LivingLinux.html

Examples of Software Available under Open Source Licences

• 'free software licences'
  • the Gnu Operating System and associated code-libraries
• 'open source software licences' (there is a register of licence-types approved by the Open Source initiative):
  • the Unix Operating System (although the history is long, complex and vexed)
  • the Berkeley Software Distribution (BSD) Unix Operating System (although there are four of them, and they evidence varying degrees of openness)
  • the Linux Operating System
  • the SSLeay code-library for SSL/TLS;
  • the OpenPGP code-library for Pretty Good Privacy (digital signatures)
  • the Apache web-server
  • the Mozilla web-browser
  • the OpenOffice alternative to the Microsoft Office suite
  • the Mailman email list-server

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Created: 20 June 2003 - Last Amended: 25 September 2003 by Roger Clarke - Site Last Verified: 15 February 2009
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