Free the Code: Solution for IP headaches or MP3-like suicide?

Jean-Raymond Fayat, University of Strathclyde, Glasgow.

The idea that the proprietary software social system--the system that says you are not allowed to share or change software--is antisocial, that it is unethical, that it is

simply wrong, may come as a surprise to some readers. But what else could we say about a system based on dividing the public and keeping users helpless?

Readers who find the idea surprising may have taken proprietary social system as given, or judged it on the terms suggested by proprietary software businesses.

Software publishers have worked long and hard to convince people that there is only one way to look at the issue.

Stallman R., “The GNU Project”,

URL:

“The laws protecting software code are stifling creativity, destroying knowledge, and betraying the public trust. […]It's time to bust the copyright monopoly.”

Lessig L., “May the Source be with you”,

URL:

"[Open source] lacks of a central body to define common standards across all the different projects for things like security, management, documentation, internationalisation and accessibility. […] Everybody is along for the ride but no one is driving. And how do you build a profitable business when all the work you put into creating your software is given away for free?"

Miller D., group project manager for competitive strategies at Microsoft, “MS: A little More Open” URL:

The software industry is in turmoil: adapting existing Intellectual Property tools or designing a sui generis right to software is proving very difficult indeed.

On one hand, the recent heated debate at the European Parliament upon the patentability of computer-implemented inventions witnesses the complexity of the subject. Surveys show that IP actors and software giants are lobbying towards such a system, but that it is unlikely to foster small firms’ innovation and could even potentially endanger their existence[1]. On the other hand, copyright protection is proving unsatisfactory due to the lack of a satisfactory test to compare software.

Paradoxically, a way forward for the software industry could be not to protect the Intellectual Property or, more exactly, to use copyright protection so as to grant increased rights to the users. This is the way proposed by open source code community, which has created the notion of “copyleft”. Certain commercial companies such as Netscape seemed also interested in such a solution, which involves a really new business model. The novelty resides in the fact that companies providing “copyleft” software give away their Intellectual Property by giving access to the source code and focus on the associated services. Suitable licensing terms potentially constitute a way forward for the software industry, even though they also lead to new legal problems.

TABLE OF CONTENTS

Part 1 The approach of free software communities: free software and open source.

1.1 The underlying philosophy behind open source: software sharing communities

1.2 The ‘viral effect’ of the licenses and their different scope.

1.3 The success of open source products

Part 2: The reaction of the commercial software industry

2.1 Computer giant Microsoft worried about Linux competition.

2.2: The move of traditional software companies towards open source models: Dot-Net Initiative and the Commercial software Model.

2.3 Associating Linux and Windows?

Part 3. The legal limits of open source licenses force the creation of customised licenses.

3.1 Using licenses raise legal problems

3.2 Customisable licenses: the way forward?

Conclusion: The use of copyright law through customised licenses could be a way forward for the software industry

Bibliography

Part 1 The approach of free software communities:free software and open source.

1.1 The underlying philosophy behind open source: software sharing communities

The idea of free software came from MIT researcher Richard M. Stallman[2]. In 1971, the Artificial Intelligence Lab at MIT was working on an operating system called ITS[3] which all staff hackers[4] tried to improve by communicating their improvements to each other.[5] As a result of technological advances, the programs ran by the ITS operating system became obsolete and the AI lab community collapsed.

More, the way of working of programmers itself started to be restricted. Indeed, new Operating systems were following such license that obliged the users to sign a non disclosure agreement concerning the modifications on the software. The rationale behind those terms was that the company developing the software needed to be granted protection for its Intellectual Property investment. Those licenses actually provided that users of the software are not allowed to access or decompile the source code of the software except for interconnection purposes.

Being a programmer able to solve bugs and developand adapt the source code himself, Richard Stallman considered this denial of access to the source code was abusive. In particular, he pointed out that software companies do not have unquestionable right to own software and have subsequent power over the users of this software; indeed, he argued that "legal tradition does not grant copyright as a natural right but as an artificial right to grant monopoly that limits users' natural right to copy".[6]

Richard Stallman decided to set an example: he started to build the kernel for a 'free' operating system[7] that anyone would be able to use and modify without infringing any type of agreement. He gave the source code of the program away to the users. This OS was compatible with Unix[8] so as to make it portable and it allowed Unix users to switch to it. Such a project was called GNU, namely the recursive acronym "GNU is Not Unix"[9] and Stallman founded an organisation, the Free Software Foundation, in charge of the development of similar projects. In particular, the goal of the GNU project was to develop an entirely free operating system, i.e. to develop, write or commit people to write all the applications needed by such an operating system. The GNU system entails notably Linux[10]as its kernel[11]. The underlying philosophy is developed in the GNU Manifesto: programmers should want to help because they are unhappy about the commercialisation of software.

At this point, it all looked pretty unrealistic from an economical perspective: Stallman is betting that computer developers are ready to develop his software for free mainly because they are unhappy about the restrictive licensing terms. Nevertheless, this project was very welcomed by the developers’ community: these developers -the “free software community”- were indeed ready to give up their IP rights just to prove their worth by releasing their improvements to the source code to their fellow programmers.

In order to keep this phenomenon going, Stallman worked with lawyers in order to design a license enabling this phenomenon to keep going.

This license is using copyright law in a reversed way, where all the exclusive rights of the authors of the software, except the moral rights, are given up to the users. This is the notion of COPYLEFT.

The Free Software Foundation website states: “It refers to four kinds of freedom, for the users of the software:

  • Freedom 0: the freedom to run the program, for any purpose;
  • Freedom 1: the freedom to study how the program works, and adapt it to your needs. Access to the source code is a precondition for this;
  • Freedom 2: the freedom to redistribute copies so you can help your neighbour;
  • Freedom 3: the freedom to improve the program, and release your improvements to the public, so that the whole community benefits. Access to the source code is a precondition for this."[12]

Those freedoms aimed at setting standards for a free software community. They have been stated and -more or less- adopted by the different "free software" licenses.[13]

Therefore, the meaning of free software refers to the freedom given to its users, not to its price. There is allowed and even encouraged to "sell free software"[14] as this is one way to rise funding for the development of free software. Indeed, the Free Software Foundation encourages people to charge a fee to contribute to the development of the Foundation.

Redistributing free software is seen a good and lawful activity. Good because it allows to spread the use of the software and lawful because it is allowed by the terms of the license.[15] It is always possible to get copies of the software for 'free' (as in no cost); it is an issue left up to the distributor of the software. Some Free Software companies, such as Red Hat and SuSe, are actually selling free software but their business model is based on the technical support and added services they are providing.

The term 'free' being confusing as it made people believe they could have such software at no cost, part of the community decided to stop using such a word and call it "open source software" instead[16]. This happened in Palo Alto in 1998. The Free Software Foundation refused to take on this word: it argued that it put the focus on the availability of the source code for programmers worldwide and therefore emphasised the potential high-quality and astonishingly fast growth[17] of the software; in parallel, it deleted the original philosophy of freedom and community.[18] Therefore, the two names are still used to designate roughly the same type of product.

1.2 The ‘viral effect’ of the licenses and their different scope.

Different types of licenses have been written for free software so as to encourage their distribution.

There are two different types of free software licenses: these, which have a viral effect, and those, which do not.

The viral effect of the license refers to the subsequent use of the work: once the user has modified or copied the code and wants to redistribute it, he has no choice but to redistribute it under a similar free software license, including -or not- his own improvements as it may be. He cannot use it in closed source software, for instance.

This viral effect goes even further: if it is added to a separate piece of code, it “contaminates” it in that the whole software has to be released under a similar free software license.

The following licenses are the probably the main licenses following ‘the copyleft’ philosophy:

  • The most popular license implementing copyleft is the popular GNU General Public License. This license has been written by lawyers on the demand of Richard Stallman. Regarding the later right of modification, the Free Software Foundation proposes that the user of the free software is entitled to make modifications to the source code and use them privately in your own work or play, without mentioning that they exist. However, provided that the developer intends to distribute the modified program (for a fee or for free), he has to provide the full source code -including his value-added- under the GPL license.[19]
  • Other types of licenses for free software exist. In particular, the Berkeley Software Development License (BSL or BSD) is quite widely used as it is simple, easy to read and to understand. The main points are:
  • This is copyrighted material, owned by me [the author of the program];
  • You [the user] can use it however you want, including selling it for a profit, as long as [the user] includes a credit to [the author of the program], and do not claim [he] (the user) wrote it [the moral rights stay with the author];
  • Whatever happens to [the user] because of this material is [his] responsibility and [the author of the program] is not liable. There are no warranties, guarantees or refunds.
  • The name of the [author(s) of the software] may not be used to endorse or promote product derived from the software without specific prior written permission."[20][21]

The major difference with the GPL is that the modifier of such a BSLed software is free to distribute the work under the licensing obligations that he desires.

  • The Artistic License is another type of free software license quite similar to the BSL. In addition, it entails a definition section for more complex works, prohibits selling the actual material[22] and states requirements for any redistribution[23].
  • Yet another free software license is called X11. It grants its users the following rights, namely to use, copy, modify, merge, publish, distribute and/or sell copies of [the software]", provided that such a copyright notice and the herein permission granted to the users appear in all copies of the software and the enclosed documentation.[24] As opposed to all licenses detailed above, the X11 is a “non viral” licence, i.e. it does not spread by ‘contaminating’ the subsequent improvements made to the software.

The developers who have added code to the software can release their improvement under the type of license they chose. It could be noted that the reasoning followed by the creators of the X11 makes it quite similar to the old Berkeley license[25], i.e. little restrictions are placed by the license, the important thing being to advertise to popularise the use of the license. As a result, bits of code or even the entire software can be turned into a proprietary or ‘closed source’ software. This has the advantage of attracting ‘traditional’ software companies to develop those software.

Such “free software” licenses are really an alternative to the public domain, where all the exclusive rights granted by copyright law to the author are erased. Anybody can do anything with the code: modify it, rename it, claim it their own…

1.3 The success of open source products

The "free software" initiative of Richard Stallman met the enthusiasm of the hackers'[26] community. Numbers of products in open source have been released under the GNU GPL license or another. The targets of such products are networks as well as desktop (operating systems and applications). One really important role of open source is to keep standards open to everyone, away from the monopoly of one single company. As pointed out by some open source advocates, open source communities' achievements include the Internet itself and the World Wide Web. Indeed, the TCP/IP protocol was developed as part of UC Berkeley networking, and so were the HTTP language and the XML standards.[27]

Similarly, the most widely used application on the Web is the server Apache, an open source project which is now installed on more than half of all publicly accessible Web servers, dominating Microsoft and Netscape's software.[28] Users of such software find it "faster, more reliable, more up-to-date" than its commercial counterparts. It was originally initiated by a graduate from UC Berkeley[29]. He wanted to improve the then-most-widely-used NCSA Web server program (National Centre for Supercomputing Applications). This Web server software being in the public domain, he was entitled to access and modify the source code. He wrote a piece of new code as a 'patch' to the NCSA server allowing it to handle password authentication at a large scale. At this time, nobody was taking care of the NCSA server and 'patches' were growing uncoordinatedly. A believer in the co-operative software development, this programmer, Behlendorf, contacted 7 other programmers to rewrite the source code of NCSA. This project took the name of "A PAtCHy server". Once the rewriting completed, the group took the name of 'Apache' group. All original developers agree to say that there was no boss or person in control of the development of the program. For this reason, the Apache server is considered as "one of the most successful stories of open source software (OSS)"[30]. It has notably succeeded in keeping Internet protocols open.[31] Accordingly, the Perl language, most widely-used language for creating dynamic sites, is also an open source project[32] and so is the Sendmail e-mail server, the heart of the Internet e-mail backbone. An argument for the success of such Open Source Software is that they are directed towards public networks, while the most profitable part of the computer business happens behind the firewalls of the Web servers, i.e. in Intranets -Netscape is first provider in this field- and desktops programs -Microsoft Windows Operating System has 85% of rate penetration worldwide.[33] However, open source advocate Raymond states "the Internet is our killer application."[34]

However, the best-known Open Source Software is targeting this part of the computer industry: the Operating System Linux has managed to get 20% of penetration rate in the business world. Linux is a free, UNIX-like operating system, developed originally for home PCs, but which now runs on a variety of hardware platforms. The kernel[35] of Linux has been developed by the then-undergraduate student from the University of Helsinki Linus Torvalds and released under the GNU GPL license. Originally designed for a single processor and a mono platform system, Linux has benefited from the co-operation of numbers of programmers and can now be used for a wide variety of purposes including networking, software development and as an end-user platform. In particular, Linux is now the most popular Unix-like operating system and can be downloaded for free via the Internet or purchased on CD-ROM.[36][37] Linux is distributed by commercial companies such as Red Hat or SuSe. An increasing number of applications are available on Linux, including games previously only run under Windows Operating System. One of the advantages of Linux as an OSS is that it can be fleshed out of his non-relevant bits and customised for a specific use. Thus, it has been endorsed by the first commercial MP3 car-stereo-cum computer Empeg. This device can also surf the Web, send e-mails, and store dates and addresses.[38] Another OSS is X Window released under the X11 license and therefore not obliging developers to release any improvement they made to the source code. This slows down the improvement of the OSS. The GNOME project is a program aiming to develop an interface for such an OSS. It is distributed by few companies including Ximian company. [39]