Open Source Software

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Free and Open Source Software (FOSS): Licensing agreements and intellectual property rights issues -

Developing Countries point of view

  • Introduction

During the last decade the increasing success of FOSS has transformed it into a matter of debate.

Computer software consists of the object code and the source code. The object code is ‘the executable series of instructions into which the source code is complied, which is necessary to provide instructions to a computer to carry out a task', i.e. it is what the computer needs to ‘read' in order to run a specific piece of software. On the other hand, the source code is ‘the human readable programming language created by a software programmer, including notes as well as programming', i.e. it is what a human being can and needs to read in order to ‘support, adopt or modify computer software.'

Traditional commercial software licenses contain restrictions and limitations on the allowed uses of the software, i.e. restricting its use to certain computers or to a specified number of users, etc. On the contrary, most of the FOSS licenses intend to minimize or eliminate restrictions on users and allow the free use, study and even the further development and redistribution of the software.

The unique philosophy of Open Source plus the recent explosive growth in availability and usage of Open Source software have focused interest on how Open Source licensing works and its implications. As Open Source has come into the spotlight, a number of points have stirred special interest. The licenses on which the Open Source approach is based have never been conclusively tested in court.14 The interest and involvement of commercial software entities with conflicting agendas has stressed and tested the loose, community model of development that has served the Open Source movement so well. The notion of copyleft that forms the basis of Richard Stallman's view of Open Source and its assumptions about existing copyright law and its implications have been criticized from inside and outside the Open Source community.

This study will discuss in brief the FOSS history and describe the main types of FOSS licences, and furthermore, survey generally some of the legal issues raised in the Open Source approach and with the Open Source licenses, and draw some tentative conclusions about the likely impact of Open Source on traditional copyright and licensing law as it becomes a more significant component of the Internet and computer systems, as well as a part of our way of thinking about intellectual property and licensing in a rapidly changing world.

One of the very interesting issues raised by the FOSS movements is the potential of its introduction in the developing world. Many of the developing countries, such as Brazil, China, India and South Africa, have come to realize the opportunities offered by the

Free and Open Source Software (FOSS) Origins

FOSS is a term which includes both free and open source software movements, and is therefore preferred and will be used in this study for completeness purposes. In brief, it refers to software for which the source code is made available to the user and is distributed under a licence, which allows her to run, study, copy, modify and redistribute the software, as long as she complies with certain terms. It is usually produced by the collaboration of programmers making part of a non-for-profit community.

Although Free and Open Source Software share many characteristics, they also have some main differences, especially in the freedoms provided to the users. In the following section the main characteristics of both movements are going to be presented.

Free Software. ‘Free as in free speech, not free beer'

In the 1970s the University of Berkeley in cooperation with AT&T developed the first operating system for mainframes, namely Unix. During the first decade of its existence Unix's source code was shared freely amongst the University of Berkeley, AT&T and other scientists. In the 1980s, however, AT&T begun to ask everybody who used the Unix to sign non-disclosure agreements. A group of computer scientists found this deeply problematic as concerns openness and free sharing of knowledge. One of them, Richard M. Stallman, a former MIT academic, started in 1983 the free software movement by launching a project under the name GNU (which stands for “GNU is not UNIX”), in order to provide a replacement for the UNIX operating system. Furthermore, Stallman established in 1985 the Free Software Foundation, a nonprofit organization which holds the copyright in the software created for it and is responsible for enforcing the licences.

According to the Free Software Foundation definition, ‘free' in the ‘free software' term, refers to the freedoms provided to the users, not the price of the software. Thus, a computer program is considered free if it provides the user the freedoms to:

- run the program, for any purpose

- study how the program works, and adapt it to her needs

- redistribute copies

- improve it, and release the improvements to the public, so that the whole community benefits.

The Berkeley Software Distribution

A group of computer scientists who worked for the University of California at Berkeley, were also dissatisfied with AT&T and the practice of the non-disclosure agreements. As a result, they have decided to develop an open version of Unix, for which the source code of the software was made available to the users along with the software itself, namely the Berkeley Software Distribution (BSD), as well as a number of variants, such as FreeBSD and OpenBSD. The main problem with the BSD was that it was based on the source code originally developed by AT&T, a fact that gave rise to litigation. However, the law suit was settled, without any definitive court ruling on the licence itself. By the end of the legal dispute in 1994, BSD developers had furthermore, replaced all the code in the software originally written by AT&T and a few months after the settlement, they have also released the first completely free 4.4 BSD-Lite.

The Open Source Software Definition

The use of the word free in the term ‘free software' has many times caused misunderstandings since it was thought to mean anti-commercial, thus, many commercial entities were reluctant to associate their business with it.

In 1998, Netscape decided to release its browser software, the Netscape Navigator, the most popular web browser at the time, under a FOSS licence. Because none of the existing FOSS licences seemed to satisfy Netscape's specific needs, Netscape after taking into account the FOSS community's suggestions, drafted a new licence, the Mozilla Public License (MPL) under which it released its software. MPL is considered to be a form of compromise between the commercial needs and the FOSS community's principles, and as such has facilitated the use of FOSS licensing for commercial purposes.

In connection with the Mozilla project, Bruce Perens and Eric Raymond have developed and introduced the Open Source Definition. They have furthermore, established the Open Source Initiative (OSI) which holds a dual role. On the one hand it informs people about the use of OSS in commercial environments and on the other hand it provides certification of licences satisfying the OSD criteria.

According to the OSD in order for a software to be considered open source, pure access to the source code is not enough. It should furthermore, be distributed under a licence which will satisfy the ten principles drafted by the Open Source Initiative:

1. Free Distribution. ‘The licence shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale.'

2. Source Code. ‘The program must include source code, and must allow distribution in source code as well as compiled form. Where some form of a product is not distributed with source code, there must be a well-publicized means of obtaining the source code for no more than a reasonable reproduction cost preferably, downloading via the Internet without charge. The source code must be the preferred form in which a programmer would modify the program. Deliberately obfuscated source code is not allowed. Intermediate forms such as the output of a preprocessor or translator are not allowed.'

3. Derived Works. ‘The license must allow modifications and derived works, and must allow them to be distributed under the same terms as the license of the original software.'

4. Integrity of The Author's Source Code. ‘The license may restrict source-code from being distributed in modified form only if the license allows the distribution of "patch files" with the source code for the purpose of modifying the program at build time. The license must explicitly permit distribution of software built from modified source code. The license may require derived works to carry a different name or version number from the original software.'

5. No Discrimination Against Persons or Groups. ‘The license must not discriminate against any person or group of persons.'

6. No Discrimination Against Fields of Endeavor. ‘The license must not restrict anyone from making use of the program in a specific field of endeavor. For example, it may not restrict the program from being used in a business, or from being used for genetic research.'

7. Distribution of License. ‘The rights attached to the program must apply to all to whom the program is redistributed without the need for execution of an additional license by those parties.'

8. License Must Not Be Specific to a Product. ‘The rights attached to the program must not depend on the program's being part of a particular software distribution. If the program is extracted from that distribution and used or distributed within the terms of the program's license, all parties to whom the program is redistributed should have the same rights as those that are granted in conjunction with the original software distribution.'

9. License Must Not Restrict Other Software. ‘The license must not place restrictions on other software that is distributed along with the licensed software. For example, the license must not insist that all other programs distributed on the same medium must be open-source software.'

10. License Must Be Technology-Neutral. ‘No provision of the license may be predicated on any individual technology or style of interface.'

Liability and enforceability issues

  • Acceptance of liability for working together with other software?
  • Dispute on the validity and the enforceability of open source licences
  • FOSS Sources - The main FOSS Licences

FOSS is licensed under more than two hundred different licences which vary significantly in their terms and conditions. Thus, several compatibility problems may occur between the various licences, which might prove to be quite problematic for entities using several pieces of FOSS, released under different types of licences. In the following section we will explore the most important and popular ones.

  • The GNU General Public Licence (GPL).

The GNU General Public Licence is the oldest and the most popular FOSS licence. As mentioned above, in the 1980s Richard Stallman established the Free Software movement when releasing the GNU. In 1984 he published the GNU manifesto, where he declares his strong belief that users should be able to freely share their software. The first version of the GPL was drafted by Richard Stallman in 1989. Soon after that, in 1991, the second version of the GPL came out, which is also the version most commonly used. Fairly recently, in 2007, a third version of the GPL has been published, scoping to address some issues arising from the wording of GPL2. Whether this goal shall be achieved, still remains to be seen.

The basic principles in all three versions of the GPL

In the preamble of the GPL Stallman also describes the motivation behind the FOSS movement.

- GPL version 3.0

The publication of the third version of the GPL in June 2007 was the result of a long consultation amongst the FSF, the FOSS community, lawyers, but also large commercial entities.

- GNU Lesser GPL (LGPL)

  • The BSD Licence
  • The Mozilla Public Licence
  • The Creative Commons Licence
  • FOSS and Copyright Law
  • Software Copyright Protection
  • Copyright and Open Source
  • Authorship/Ownership (Joint Authorship Issues)
  • Economic Rights
  • Moral Rights
  • Liability
  • Service Provider Liability
  • Potential third party copyright infringement
  • Enforcement of FOSS licences
  • Effects and Legal Status of the licences
  • Enforcement in Practice
  • Recent Relevant Case Law
  • FOSS and Developing Countries


In the following section we are going to explore the potential of the use of FOSS in the developing world.

Some of the obvious benefits of the use of FOSS have to do with

  • Benefits
  • Problems
  • Conclusions, challenges, propositions and recommendations