Legal Aspects of Open Source Software

What is Free Open Source Software?

This is an essay reviewing recent software licensing decisions and the problems associated with "shrink wrap licensing." There are three blocks discussing the legal ramifications of Free Open Source Software licensing agreements. This was published in [http://www.murdoch.edu.au/elaw/issues/v10n4/halbert104_text.html E-Law: Murdoch University Electronic Journal of Law]. The essay is written by Debora Halbert, PhD, Associate Professor of Political Science, Otterbein College.

I have quoted ''en bloc'' the last three blocks from her essay here, I placed the last two blocks first followed by the explanation of the GPL.

'''Open Source as an Alternative to Expansive Copyright Protection'''

Open source technology is based upon a set of fundamentally different principles than proprietary software. First, the building blocks of any open source system, the source code, must be available to anybody. Second, if you use source code that is protected under an open source license you must contribute your code to the community of users. Third, a business makes its money not from the source code, but from its product and the support that is provided for the product. Finally, intellectual property is not a part of the business model, so piracy is not an issue. Thus, by redefining the rules of the game the problem of piracy is eliminated and the need for absolutist licensing agreements like those endorsed by UCITA becomes obsolete.

In evaluating the potential future of an open source model, it is important to outline the basic premise of open source technology and evaluate how the open source movement creates an alternative to the mainstream method of protecting commercially created projects - primarily copyright law. In this section, I'd like to briefly outline open source philosophy, explain its advantages and disadvantages, and why it offers a promising alternative paradigm for businesses and governments wishing to avoid the more stringent demands of intellectual property and associated licensing regimes.

Open source technology has a rich history and shares the philosophy of free exchange and development with many other models including Richard Stallman's GNU software, shareware, and public domain software.[59] Professors Josh Lerner and Jean Tirole break down the history of the open source movement into three distinct phases moving from the early days of the software industry when all programs were essentially free through the late 20th century when the Internet came to dominate and the Linux phenomenon emerged.[60] Originally, computer software was not proprietary. Instead, computer programmers, mostly working from their homes or Universities, shared computer code as they collectively developed functional software. These original computer designers used the word "hacker" to describe their activities.[61] As computer technology and software developed into a money making enterprise, much of what used to be traded and exchanged freely became the property of companies interested in making a profit on their computer code.

Open source recognizes that while programming is a creative art, it is based upon a process emphasizing efficiency and stability. If a person wants to write a program to complete a specific task, it makes no sense to have to rewrite the code for that same task in a different program. Instead, it makes much more sense to copy the already existing code (or improve upon the already existing code) and uses the copy in the new program. Copyright prohibits this functional approach by walling off source code behind proprietary walls. Open source encourages the idea that one should build upon what already exists - even if what already exists was created by someone else. Accompanying the source code is a list of contributors. Thus, open source code can work in the same was as an academic bibliography that lists the many people who contributed their ideas and research to the final product, even if it was only a line or two. In many ways it reintroduces the idea of authorship to software creation.

While systems such as open source technology, shareware, and public domain software all operate from the common understanding that there is value in contributing to the public domain with or without compensation, there are differences in these approaches. Shareware is premised upon the idea that a software programmer will distribute his or her program for a contribution and/or registration fee.[62] This particular business model is premised upon trust - it assumes that ethical people will pay for the computer program, but doesn't worry too much about people who don't pay.[63] By eliminating the need for marketing and litigation, the programmer can focus on the quality of the program. Shareware programs tend to be smaller projects designed by an individual to meet his or her own needs and then publicized by word of mouth or the Internet to others with similar needs.[64] They serve an unintended consequence in the process, however. Shareware helps build relations of trust over the Internet and also provides the creator with some recognition for the work they have done.

Public domain software is different than shareware. Shareware includes a license agreement of some sort and retains copyright for the author. While copyright is automatically assigned to creative work fixed in a tangible form, it is possible to contribute a software program to the public domain. Public domain software is freely available to anyone to use as they see fit and to appropriate into commercial and private projects that steal these programs from the public.[65] The threat posed by commercial interests for the development of public domain software is part of the motivation behind the General Public License (GPL) and the Free Software Foundation.[66]

Open source, while closely linked to Stallman's GPL, has moved beyond the Free Software Foundation and is most closely associated with the Linux operating system phenomenon. Linux began as many typical hacker projects - in the bedroom of its creator, Linus Torvalds. Torvalds' project originated from his desire to better learn the capabilities of his newest computer. The earliest postings of Linux were rudimentary. However, Torvalds' kernel began to develop a following of interested users. At first, there were only a few programmers who would email Torvalds their recommendations. However, as the project developed, additional programmers joined and helped with different components of the code. Emails came in from all over the world. By the time Torvalds w as ready to release the official Version 1.0 of his software, Linux was already an international phenomenon.[67]

Torvalds took an academic approach to his work. He did not want to be paid for Linux instead, as he put it,

I felt I was following in the footsteps of centuries of scientists and other academics who built their work on the foundations of others - on the shoulders of giants, in the words of Sir Isaac Newton. Not only was I sharing my work so that others could find it useful, I also wanted feedback (okay, and praise)¦ Regardless, I didn't want to sell Linux. And I didn't want to lose control, which meant I didn't want anybody else to sell it, either.[68]

Torvalds, in other words, did not oppose the idea of intellectual property. However, while wanting to protect the creation of his intellect, Torvalds was not necessarily motivated by monetary factors. His drive to create Linux did not come from a desire to become a millionaire (though he has become one), but rather from his quest for a better understanding of what he could make his machine accomplish.[69] Torvalds turned to Stallman's GPL license because he was interested in protecting his creation, but not tightly controlling it.[70] As a result, Linux source code remains open, but a variety of companies have built upon Linux to create their own products and enhance the options available to the larger public. In turn, they help improve the Linux source code through their own innovations. The system developed by Torvalds works because instead of focusing on property rights, programmers work together to contribute to something larger than themselves.

Computer programming seems to have come full circle since the early days of the software industry with the relative success of the open source movement. Original adherents to the software should be free ideology were marginalized as proprietary software came to dominate the market. The open source movement is moving these programmers back to center stage. In part because programmers create software for more than the love of money, the open source model has been unexpectedly successful. There are advantages to the open source movement that should be seriously considered as an alternative to copyright law and to a growing degree patent law as well.

First, and crucial to developing countries, open source software is cheaper than proprietary software. For example, a copy of TurboLinux 4.0, an open source product, sells for around $49 in China today. A copy of Windows 98 is priced at $245.[71] The cost difference makes TurboLinux a more popular seller via legal avenues in China than Windows.[72] However, given the state of proprietary software piracy in China, it is difficult to really assess the market penetration of the Linux system. The difference is that TurboLinux wants the Chinese to "pirate" their software and has handed out thousands of copies in order to create a critical mass.[73] It makes economic sense to use an open source model both as a means of developing an indigenous software industry and as a means of having access to the best software and the best prices.[74]

A second advantage of open source is the ability of businesses and governments to tailor existing code to specific needs. Traditional software companies make their profit by retaining all rights over the code that makes the product work. Thus, if a specific feature does not work or tends to crash the machines, a business must wait for the next version of the software and hope the bugs have been fixed. As computer journalist Mark Minasi notes in The Software Conspiracy, software companies feel the end user doesn't care about quality, only about features.[75] They knowingly ship software with design flaws and bugs that end up costing businesses crucial down time as they attempt to make the new software work.

With a proprietary system a company must wait for an upgraded edition to fix problems in the earlier version. The business that has bought proprietary software cannot look at the source code in order to fix problems because the code is the property of the software maker. Thus, the business with a proprietary software package has lost control over their business process because they are forbidden from changing the software. Eric Raymond highlights the problem with the proprietary model for most businesses:

The brutal truth is this: when your key business processes are executed by opaque blocks of bits that you can't even see inside (let along modify), you have lost control of your business. You need your supplier more than your supplier needs you - and you will pay, and pay, and pay again for the power imbalance. You'll pay in higher prices, you'll pay in lost opportunities, and you'll pay in lock-in that grows worse over time as the supplier (who has refined its game on a lot of previous victims) tightens its hold.[76]

The open source model, by contrast allows the business to use the source code to build a better product. With open source, the building blocks are available and can be manipulated to by the software owner (not copyright owner) to best suit the needs of the business and/or government office. Because most software is created to be used by business, government, or private citizens to make their own computers run smoothly, the ability to change the code is an important "right" granted to the software buyer. Given that most users want workable software, open source software provides more flexibility for the end user.

Additionally, what open source companies provide is support as you develop your products. Control over software reverts to the business owner instead of the software owner. As Raymond points out,

Contrast this with the open-source choice. If you go that route, you have the source code, and no one can take it away from you. Instead of a supplier monopoly with a chokehold on your business, you now have multiple service companies bidding for our business - and you not only get to play them against each other, you have the option of building your own captive support organization if that looks less expensive than contracting out. The market works for you.[77]

Thus, the open source option can provide a comparative advantage to a business that needs specific software tailored to specific needs. According to open source advocates, at least 75% of computer programming is done in-house as software engineers and systems operators do what is called "vertical maintenance" for their systems.[78] This type of work takes long hours and quite a bit of programming time. Open source provides all programmers with access to a vast toolbox from which to draw code when writing these types of software that will make any business more efficient.

Furthermore, unlike some proprietary packages that have backdoors that allow the software vendor to deactivate the program if they feel it violates the licensing agreement, open source software becomes the property of the company.[79] In return for the flexibility of the open source system, the company must contribute its source code to the general community of users. The company also has access to the programs that can improve the functionality of their own systems.

A third advantage of open source technology is that the resulting products are substantially more stable and bug free than their proprietary alternatives. Linux followed a truly revolutionary and anarchistic development model. Thousands of programmers around the world donated their time, creativity, and energy to the project. With thousands of programmers, each focused on the type of code that most interests him and/or her; the end result would inevitably be excellent. This code is continually built upon as new uses are developed and as bugs are fixed. Torvalds continues to devote a substantial portion of his time updating Linux. He remains quite involved in the decisions of what will be included in the operating system. However, he does so in a way that allows for users to decide on the best features. Essentially, he lets the people who deal with the system on a daily basis decide what works best. The final result has been a stable and well-built system.

A fourth important advantage of open source technology over the prevailing intellectual property paradigm is the fact that licensing is much easier and facilitates the exchange of information and innovation of code. Open source technology does not come with monopolistic licenses that require high costs for installing the software or operating systems. Major computer manufacturers in the United States have adopted Linux ports because the licensing is less difficult than it would be with proprietary software. Additionally, contracts of adhesion that govern the proprietary software market in the form of shrink-wrap licenses (which state that once the product has been opened you agree to the terms of the license before you have installed the program on your system.) are not a part of the open source paradigm. Open source, with its less restrictive licenses and its collaborative framework establish an ideal setting for growth in software development in areas outside the U.S. who would like to remain independent of powerful American software interests. As the COO of MIMOS, a Malaysian computer company said, "In the Malaysian context, this translates into the enablement and propagation of creative and innovative software development activities in a collaborative manner over the Internet."[80] In the words of Rob Hart, an executive at Red Hat Asia-Pacific, "Open source levels the playing field by breaking down the entry barriers put up by proprietary software companies."[81]

Finally, the open source movement is an important alternative model to the global standards established by TRIPS and the WTO as well. These organizations, and the private policing forces of the technology industry like the Business Software Alliance (BSA) and the Software Information Industry Association (SIIA), are enormously concerned with intellectual property piracy. The SIIA's research suggests that 51% of software in Singapore was pirated in 1999 resulting in US $61,758 million lost.[82] The total loss in the Asia/Pacific region, according to the SIIA, was US $2,791,531 billion. While the SIIA does not publish its methodology it is clear that a significant amount of money is thought to be lost. Virtually all international agreements and organizations are devoted to stamping out piracy, a type of piracy that does not exist in the open source model.

The elimination of piracy is perhaps one of the most interesting advantages of the open source philosophy. It is only possible to "steal" information under open source if you fence it off and do not allow others to use it. Contrast this understanding of piracy with the more traditional definition - which defines any unauthorized use as an act of theft. When choosing a future path, it is best to choose one that will benefit society as a whole. There seems to be some evidence to suggest that open source is a viable and advantageous path to follow. As an alternative, the open source model will eliminate piracy without the huge buildup in police power necessary for the current anti-piracy campaigns.

Ultimately, the open source movement provides us with an avenue to assess who benefits and who loses from contemporary intellectual property regimes. It is clear that TRIPS was designed to primarily benefit businesses in the global north, with the United States being the primary beneficiary.[83] h If stronger intellectual property rights will help developing countries at all, it will only be when they have reached a sufficient level of development to support local industries. Until that time, developing economies will benefit more by being able to mimic and reverse engineer technologies from developed countries, both activities that have become much more difficult under contemporary international regimes.

The open source alternative also helps illustrate the problems inherent in the proprietary system. Strong property barriers provide monopolists with the ability to charge the maximum amount for that property. However, open source is a philosophy that emphasizes the good of the community over the good of the individual. It recognizes that many creative people innovate for the challenge and willingly share their creations with others. This type of value system is the one that ought to be emphasized in the economic realms of technology. Thus, open source as a philosophy, while currently focusing on software development, is a model that could be applied to a variety of structures. For example, it may be useful to apply some sort of open source model to drugs necessary to halt the spread of AIDS. It is also very likely that music is an open source community that contemporary intellectual property laws have forced into a proprietary model.

The open source phenomenon could be the beginning of a substantially different information technology future premised upon a non-proprietary model of sharing. Instead of centralizing ownership in the hands of a few wealthy individuals, open source decentralizes ownership and in the process builds upon the creative energy of thousands. Open source, because contributions must be made available to the larger community, serves a public function. Once part of the open source community, contributions help everyone. As an industry in its infancy, it has problems that must be worked out. However, without being given the chance to develop into its full potential, we will never know how important open source may be.

In response to the "threat" posed by open-source to its own monopoly power, Microsoft has launched a full fledged attack against the idea, thus there is reason to be concerned that we will never see the full potential of the open source system. In February of 2001, Microsoft Windows operating-system chief Jim Allchin warned United States lawmakers "open source is an intellectual-property destroyer. I can't imagine something that could be worse than this for the software business and the intellectual-property business."[84] He went on to say, "I'm an American, I believe in the American Way. I worry if the government encourages open source, and I don't think we've done enough education of policymakers to understand the threat."[85] In May of 2001, Senior Vice President of Microsoft, Craig Mundie took up the topic of open source technology. He publicly denounced open source software as instrumental in the destruction of many of the dot-coms, a security threat, and unsuitable for the mass market.[86] Additionally, the license agreement accompanying Microsoft's Mobile Internet Toolkit software (in its second beta version) specifically prohibits the use of their software with any software licensed under the General Public License (GPL).[87] Microsoft calls all open source software "viral" software and prohibits users of their new toolkit from developing any programs that will contain open ource code.[88] Such statements from arguably the most powerful Software Company in the world are curious. Many people interpret Microsoft's public comments to mean they are feeling the threat of open source technology. This position is supported with evidence from Microsoft's internal communications.[89]

In part, Microsoft was responding to the growing popularity of open source technologies. The Linux operating system and products using the open source model like Apache and Red Hat are developing izable market shares.[90] Red Hat has successfully negotiated agreements with IBM, Intel, Dell, and Compaq and now has an international presence with offices throughout the globe.[91] Additionally, the US President's Information Technology Advisory Committee recommended that the federal government back "open source software as an alternate path for software development."[92] Thus, not only is Microsoft responding to the increasing popularity of the software, but to the fact that it begins from a radically different set of assumptions about what motivates people to create, what makes a successful business model, and how to realize the best possible software.[93]

Conclusion

Despite the opposition from Microsoft, the idea of open source and the GPL has continued to gain power. Open source has become a worldwide phenomenon with countries around the world establishing their intent to shift government functions to open source technology. It is yet to be seen how successful the open source movement will be in reclaiming computer code as an intellectual commons, but it is clear that as a pragmatic approach to future development, the method has much to offer.

Interestingly, the idea of open source has become popularized in a variety of intellectual property related fields.[94] For example, Salon.net is attempting a publishing experiment following the open source model where it posts chapters from a book on open source for outside criticism and discussion. The author of the book then uses the discussion when revising the chapters. Additionally, at the same time many colleges and universities are beginning to privatize their curriculum, MIT has begun an experiment as an open source University where all its curriculum and coursework is available on-line. One would not even have to be a student to learn at MIT. Other small experiments abound like the music website where public domain beats and songs are available to future creation. Finally, numerous groups and individuals are working on licensing agreements that will protect copyrighted works as open source works available in the public domain or as some sort of hybrid. Thus, the open source idea is spreading and becoming popularized.

In creating a vision for a future that is not governed by the strict licensing agreements of shrink-wrap commercial software and UCITA, open source is an important alternative. It has politicized and popularized the idea that sharing continues to have value in a world gone mad over property rights. As the world of intellectual property is re-thought by its critics, the work of the open source movement is a critical step in the process. While it may be impossible to reject the current trajectory of increased protection, resistance such as that created by open source is important if an alternative world is possible.

'''GNU/GPL License'''

The primary license used to protect open source software is Richard Stallman's General Public License (GPL). The basic idea behind the GPL is that all computer code designed under the license is available to all users.[55] Programmers can use the code, update it, improve it, or rip it apart. In other words, the user is given all rights to improve the code to their own specifications. However, any and all improvements they make to the code must be contributed back to the general pool of users. GPL is based upon the idea of share and share alike, a fundamental principle learned early in our moral development. This unique part of the GPL ensures that a person cannot privatize portions of the code created by programmers under the GPL and then force others to pay them for use of the code.

If a person does not want to share their code, then they can write the entire program themselves. Nobody makes a programmer use GPLed code. Additionally, if a person wants to create a product that will remain proprietary they should not use GPLed code. The GPL is designed to eliminate the ability of proprietary firms to take publicly available code and use it to create private systems. Thus, a software program that is built upon code created under the GPL must also be GPL software. Essentially, Stallman has codified sharing in order to prevent profiteers from stealing from the public domain. The GPL cleverly uses the power of copyright law (which allows the author of the product to control its use and distribution) to provide software for free.[56] In this way he transformed the rules of the game and redefined copyright (what he calls copyleft) into a tool the supports the creator and users of software.

It is crucial to remember that the word "free" in this context does not mean an individual must give away their software. Instead, the word "free" is intended to clarify the state of the computer code. The basic problem with proprietary systems in the minds of those dedicated to the open source movement is the lack of free access to the code. To a programmer, lack of access to the underlying code of a program is much the same as prohibiting access to the engine of a car. Thus, much like one should have access to the car engine in order to fine-tune it for optimal performance, so must a software engineer be given access to the source code of a computer program. To be denied access to the source code is to thwart the programmer's freedom.[57] In order to avoid confusion over what exactly the word "free" should mean, the term open-source, which utilizes the GPL, has grown in popularity.[58]