Licensing for developers and users: a route
through the legal minefield
Sebastian Rahtz
Information Manager
Oxford University Computing Services
and JISC Open Source Software Advisory Service
November 2003
1. Licensing?
Overheard today at work:
Open source software? that doesn't need a licence, does it?
it's free.
Sorry, it is more complicated than that!
2. DISCLAIMER
- I am not a lawyer
- I am not giving you legal advice
- I am not speaking on behalf of Oxford University
everything you hear today is anecdotal! all we can do
is suggest questions for you to ask yourself and your lawyers.
3. Some software history
In the beginning (well, 30 years ago):
- Hardware cost serious money
- Operating system software was usually patched locally
- Application software was thin on the ground
- Users were highly computer-literate and were expected to develop their
own programs
so who cared about whether software was ‘free’?
4. …and then we had the PC revolution…
- Desktop computers had to be sold cheaply
- ‘Ordinary people’ got computers
- Some clever folks wrote killer applications
- Bill Gates saw the value of a standard operating system
and lo! a market was created and all was well in the world.
5. Well, almost
- people got greedy and wanted ‘free’ software
- some big companies woke up to the value of the assets they had
previously given away
- a community of amateur programmers was unleashed on the world
- a few people realized that there was a danger of being locked
out of developments entirely
6. Red herrings
We had a curious interregnum where:
- Lots of people stole (pirated) software
- Some people tried selling on trust (shareware)
- Other people thought public domain would solve
everything
- Yet other people thought a vague ‘don't use it to make money
or war’ condition would be binding
but now we have largely settled into a stable mixed economy.
7. Software deployment today
We have three main types of deployment:
- Licensed use from a commercial company (eg Microsoft or
Oracle), not necessarily with a direct cost
- Effectively ‘free’ software which you
can pick up and reuse as it suits you, so long as you don't claim it
is yours (eg Apache)
- ‘Free’ Software which imposes stringent conditions on
what you are or are not allowed to do with it (eg MySQL).
Note that there is still some genuinely public domain software
(TeX, sort of)
8. Licensing issues for deployment of OSS
Open source software is licensed to you by its owner. They
are not giving it away! Remember:
- Both Microsoft and the long-haired hacker from Siberia both claim
copyright on their work
- Neither Microsoft nor the hacker need offer you support or
accept liability of any kind
- All software deployment has a total cost of
ownership which is unrelated to how you license it
- Not all licensed software for which you pay no money
is open source
See
http://www.opensource.org for a description of what
OSS implies.
9. The open source definition
This is the formal text from the Open Source Initiative:
- 1. Free Redistribution
- The license 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.
- 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.
10. Open Source definition (continued)
- 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.
- 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.
11. Open Source definition (continued)
- 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.
- 9. The License Must Not Restrict Other Software
-
The license must not place restrictions on other software that is
distributed along with the licensed software.
12. Does any of this impact me as a casual user/deployer?
If you stay as a pure user, no. It's free beer.
But if you plan to
- redistribute software (eg to students)
- integrate it with your own systems
- fix problems with it
you're bound by the licence you got with the program.
13. Typical licensing issues
- you must (sometimes) redistribute the software intact with source
code
- if you integrate it with your own system and then redistribute
that, your software may covered by the licence too
- most OSS licences are (I think) perpetual but the
author is not bound to release revised versions under the
licence
- if you do not submit patches back to the author, expect to have
maintenance issues in the future
- your tiny patches are copyrighted works in
themselves, and licensing issues apply to them
14. The GNU licence question
50-80% of OSS uses the GNU General Public License.
‘The GPL does not require you to release your modified version. You
are free to make modifications and use them privately, without ever
releasing them. This applies to organizations (including companies),
too; an organization can make a modified version and use it internally
without ever releasing it outside the organization. But if you
release the modified version to the public in some way, the GPL
requires you to make the modified source code available to the
program's users, under the GPL. Thus, the GPL gives permission to
release the modified program in certain ways, and not in other ways;
but the decision of whether to release it is up to you. ’
15. GPL urban myths exploded
- You can sell GPLed programs with no problem
- The GPL does not apply to things you create with GPLed
tools
- You can change the programs and keep the changes to yourself; so
long as you don't distribute them
- GPL software does not have any stamp of approval or follow any
special standards
- The copyright owner is not bound by the licence
16. Does the GPL limit you?
It limits you if plan to make money selling modified versions of
GPL programs, or incorporate them into your own.
But many people make a living from GPLed software.
17. Companies mixing OSS with business
- MySQL
- RedHat and SuSE (suppliers of Linux)
- IBM
- Sun
- Novell
All these companies see a place for licensing some software under open
source terms as part of their business.
18. What about dual licensing?
Some companies offer their software under more than one
licence. MySQL is a good example. They are a reasonable-sized company
with three main sources of revenue:
‘
- Online support and subscription services sold globally over the
MySQL.com website to all users of the MySQL server.
- Sales of commercial MySQL licences to users and developers of
software products and of products that contain software.
- Franchise of MySQL products and services under the MySQL brand
to value-added partners.
’
MySQL is available under GPL or commercial licence
19. Licensing issues for development
- Who owns the IPR?
To what extent do universities control the lives of their
employees?
- Which basic licence decision?
- GPL: control the future
- Apache: give it to a neutral third party
- MIT: let a thousand flowers bloom
- Who is the best person to protect your rights?
20. Exploitation concepts
UK HE/FE institutions typically do not understand
that open source licensing is a form of exploitation which
- can protect the instiution's investment
- can generate revenue from consultancy and teaching
- does not exclude commercial exploitation
- can provide intangible benefits (reputation)
so expect problems when you raise the issue. But don't hide your head
in the sand.
21. Heads up
Three warnings:
- Institutions are getting much more interested (legally) in what you
do
- The Research Councils may start saying that funded work should
be open-source licensed unless specifically over-ridden
- The market for casual software is shrinking; more people are
insisting on open source for security and archival reasons
22. We've written some software…
A model you might like to adopt:
- If the program is immediately exploitable for cash, do so
- Protect your own future with a GPL licence, but allow for
commercial licensing as well
- Consider a neutral third party as copyright holder,
if you want to protect yourself
- If staff make patches open source software, relinquish your rights on
their contributions, and allow them to send code back to the developers
23. Licence Q and A
- Are you authorised?
- Check whether you own the copyright. If you don't, you cannot
add an OSS licence
- Do you care what happens to your work?
- If you just want to make sure your stuff remains freely
available for ever, choose an MIT-type licence
- Are derivatives to be free as well?
- Insist on the GPL
- Do you simply want to make your program free?
- (As in beer).
Don't feel you have to choose an open source licence
24. Conclusions
Free and open source software has many benefits
so long you accept that:
- you are bound by copyright law
- most employers claim rights over their employees work
- most software does need patching
- ‘free’ does not mean automatic ‘suitable for purpose’
It is licensed under the
Creative Commons Attribution-ShareAlike 2.0 England & Wales licence.
OSS Watch is funded by the Joint Information Systems Committee.