16.2: Software Open Licences

The Hacker Culture

Open software licenses had their origins in what Eric Raymond calls the hacker culture. (Eric Steven Raymond How to Become a Hacker 2001, latest revision 2007, http://www.catb.org/~esr/faqs/hacker-howto.html). For Raymond and those who work with open license software “hacker” has its original meaning of a committed software developer. It does not refer to a criminal who breaches computer security. Hackers share their discoveries and feel free to use the work of other hackers. This leaves hackers free to work on unsolved problems rather than waste creative energy repeating what others have done. Hackers who publish their work, either on the Internet or in other ways, have copyright in it. At first, however, few hackers bothered with copyright. Some were not even concerned with their moral rights, the right to be recognised as the author of original material.

It is not clear how to understand this in terms of copyright law. It could have been argued that this behaviour reflected or created a trade custom among hackers. Or, because hackers often used the Internet to share work, it could have been taken as evidence of an implied license that allowed members of the Internet community to use material on the Internet without permission. Certainly, many early Internet users assumed that they were free to use anything they found on the Internet. But it is doubtful that these arguments would have served as a defence if an author had sued for breach of copyright. The second argument reverses the usual legal position in which a copyright holder has to license another to use the copyright holder’s work. And with both arguments it would have been difficult to establish the terms of the license or custom and who qualified as a member of the community to which it applied. But whatever the exact legal position, this was how it was when software developers were mostly academics or researchers who often used the Internet to share scientific or technical information.

Some developers did claim copyright in software they developed. They did this by making their products available as freeware or shareware. Freeware is copyright material which the copyright holder allows others to use without charge. Shareware is copyright material which the copyright holder allows others to use subject to a small charge or condition. Freeware and shareware are not the same as open license software because they do not envisage users continuing to develop and distribute the material.

Growth of Commercial Software

Some of the lack of interest in ownership in computer software may have been because, in the early days of computers, the software was not seen as distinct from the computers on which it ran. But as computers for ordinary users became popular, particularly after the launch of the IBM PC in 1981, it became clear there was a separate market for software for these computers. This market grew as personal computers became more powerful and able to run more complex software. And it received another boost when, towards the end of the 1990s, ordinary users began to access the Internet through the World Wide Web. From the 1970s onwards most countries recognized copyright in software and in 1996 the WIPO Copyright Treaty made it clear that software fell under copyright law. Some commercial software developers became very wealthy from licensing the software they had developed. Some countries have even taken the controversial step of giving software added protection by allowing software patents.

Today businesses are always looking out for new and useful software. If they can acquire rights over the software they will invest in marketing it. When they do this they usually allow only those who pay their license fee to use the software. And they do not usually allow users access to the software’s source code. Source code is the human-readable version of the software used to create the computer program. Restricting access to the source code means that in practice only the software owners can develop the software. Software of this sort is known as “closed software” or “proprietary software”.

Software Open licenses

The hacker community and those who sympathized with their ideals saw the possibility that all software would become closed or proprietary. To stop this happening they developed open licenses of which the following are some of the more important.

BSD licenses

The Berkeley Software Distribution (BSD) license was developed by the University of California, Berkeley and first published in 1989. But some of the BSD software goes back to 1977 and the BSD license is said to embody the conditions under which this software was released. This means the BSD license may have been the earliest open license. Some important software is available under BSD licenses including the software that runs many domain name servers and a Unix-like operating system.

Different versions of the BSD license have developed. BSD licenses have few restrictions on how the software may be used. They differ from the GPL, discussed below, in not insisting that developments of BSD software be distributed on the same terms and in not insisting that source code be made available to those to whom the object code is distributed.

GNU licenses

Richard Stallman is a prophetic figure who campaigns for free alternatives to commercial software and, in particular, for a free alternative to the Unix operating system that AT&T, the US telecommunications giant, developed. In 1985 Stallman published the GNU Manifesto (GNU standing for Gnu's Not Unix) setting out his ideals and established the Free Software Foundation (FSF) to support this work.

In 1989 Stallman published the first version of the GNU General Public license (the GPL). There is also a GNU Lesser General Public license (LGPL) that allows for linking GPL software and software not published with the GPL and a GNU Free Documentation license (FDL) for software development documentation and manuals. The GPL is now in its third version and, about three-quarters of the world’s open license software uses the GPL. This software includes the Linux operating system, an alternative to Unix, that Linus Torvald released under the GPL in 1991. The following are some of the main features of this important license.

A powerful (and contentious) feature of the GPL is what Stallman calls “copyleft”. Copyleft, shown by a reversed © symbol, means that others are free to develop a GPL work on the condition that any work derived from a copy-left work is distributed subject to a similar condition. This means the GPL license is what some call “viral”, it tends to take over software originally published under other open licenses.

Another feature of the GPL is that GPL software must be conveyed with its source code. This is to make it easier to develop the software. Not every open license requires this.

To those who think of software open licenses as anti-commercial, a striking feature of the GPL is the absence of restrictions on using GPL software to make money. As the preamble to the GPL puts it: “Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for them if you wish) …” In the past few years this has begun to happen. Red Hat, for example, is a company listed on the New York Stock Exchange. It develops and distributes a version of Linux, Red Hat Enterprise Linux. Since 2002 IBM has been offering this as an operating system for IBM computers. Dell, a major supplier of personal computers, has previously offered its computers with Linux operating systems and is now selling some computers with Ubuntu Linux. Even a corporation like Novell that sells software rather than computers, is using a version of Linux, SUSE Linux, as an operating system.

The advantage to these and other corporations of using open license software is that they do not have to develop this software themselves or pay license fees for software others have developed. They get the benefit of the work independent developers put into open license software and can concentrate on improving the products or applications that are their speciality. In return, independent developers get access to the work these corporations put into adapting open license software. Open license developers are also well qualified to work for the corporations and provide support to the corporations’ clients. They are even free to market the software on their own account.

The growth of the commercial use of open-license software has not stopped individuals and groups supported by not-for-profit organizations from continuing to develop GPL software. The Shuttleworth Foundation, for example, has sponsored Ubuntu Linux. Ubuntu Linux is meant to be easy for non-technical people to use and, in particular, supports other languages than English. It is this version of Linux that Dell is offering on its personal computers. Ubuntu also has a commercial sponsor, Canonical Ltd, that provides training and support for Ubuntu users.

As already mentioned, anyone who acquires GPL software and develops it may only distribute the developed software under the GPL. But someone who develops original software, meaning here software that is not a development of other software, is free to decide how to license it. Such a developer is free to use more than one license. So software may be distributed under the GPL and another open or proprietary license. This raises the question whether someone who develops original software and distributes it with a GPL license may withdraw the GPL license? Because the GPL is perpetual anyone who acquires a copy of original software from the developer under the GPL is free to continue to use the software. It is not entirely clear whether the developer can prevent those who have already acquired the software from passing it on to others. But it is clear that the GPL does not require a developer to continue to distribute software and this may make it difficult for others to acquire the software. In addition, the GPL does not require the developer of original software to offer further developments of the original software under the GPL. By not offering further developments under the GPL the developer of the original software will lessen the attractiveness of the earlier GPL version.

The GPL came out in 1989. A second version, GPL version 2, came out in June 1991 and GPL version 3 in June 2007. Version 3 has two interesting new provisions. The first is in clause 11 dealing with the GPL and patent rights. The other is in clause 3: “No covered work shall be deemed part of an effective technological measure under any applicable law fulfilling obligations under article 11 of the WIPO copyright treaty adopted on 20 December 1996, or similar laws prohibiting or restricting circumvention of such measures”. This means a person is free to remove coding of this sort if it appears in GPL software.

Other software licenses

Some software developers use other open source licenses. They may do this because they want to avoid the copyleft restrictions in the GPL that make it difficult to use the software commercially or because they do not want to require licensees to distribute the source code. Or they may have to use another license because the software on which they are working began with a different license. The following are some examples of other software open licenses and how they came about.

Sendmail is a widely used program for managing email that was first published under a BSD license. In 1999, following difficulties in developing and supporting the software as an open license product, a company was formed to do this commercially while leaving the software available under an open license. This called for changes to the BSD license that resulted in the sendmail license. The sendmail license, it has been pointed out, is not listed as an open source license at the Open Source Initiative website discussed below.

Netscape, on the other hand, was a commercial software developer that produced the influential Navigator web browser and Communicator email software. Following competition from Microsoft’s Internet Explorer, Netscape decided to release the source code for these products under an open license while continuing to develop the software commercially. To enable them to do this they produced they Mozilla Public license. The successors to Navigator and Communicator, Firefox and Thunderbird, use this license. Other developers, particularly by those who want to have both commercial and open license versions of their software, also use this license.

The Apache Software Foundation has its own model for software development that has resulted in non-GPL licenses. The Foundation grew out of a community of developers who, around 1995, were working on projects that included the important Apache HTTP Internet server. According to the Apache Foundation website: “All software developed within the Foundation belongs to the ASF, and therefore the members”.

Open Sources Initiative

As the number of open licenses has grown so it has become difficult for non-specialists to understand the differences between them. In 1998 the Open Source Initiative (OSI) was founded to be “the stewards of the Open Source Definition (OSD) and the community-recognized body for reviewing and approving licenses as OSD-conformant” (http://www.opensource.org/about).

The OSD is a list of 10 requirements that software must meet to qualify as open source. The Open Source Initiative keeps a list of licenses it considers comply with its definition of open source. It has a trademarked logo that those whose licenses comply with the definition can use. It might seem it should be possible to use any OSD-compliant software with any other OSD-compliant software. This, however, is not always the case as some of the licenses contain incompatible terms.

Advantages and Disadvantages of Open license Software

Traditionally open license software users were technically sophisticated. They probably shared the ideals of organizations like the Free Software Foundation and may even have helped develop the software they used.

Increasingly, however, open license software users have little or no technical expertise. They simply want to save money by switching to open license software rather than pay for commercial software from suppliers like Microsoft. Stand-alone products like open license products like Firefox and Thunderbird should present these users with few difficulties. But non-technical users are likely to resent having to learn how to use the more complex products that are an alternative to Microsoft Windows and Office. In addition, some of the proprietary software on which an individual or institution depends may not may not be easy to run with open license software or be available in an open license version. Open license software is also likely to need as much support as the equivalent commercial software. Support here means help with installing the software, manuals, training for users and access to experts. Before committing themselves to open source software, users with little technical expertise should check these points and, in particular, be sure adequate support will be available and know what it will cost. Businesses using open license software should also bear in mind that most open licenses disclaim liability for any damage resulting from the software. They may need to consult their insurers.

It is worth noting that some software managers working in higher education institutions have reservations about using open license software for sensitive data. Their concern is that if the source code is available it is easier to attack the software and publish, change, or destroy the data.

Open licenses are popular among educators. But individuals and institutions that distribute their original software with an open license may be giving up the possibility of royalty revenue from those who use their software. They need to weigh this against the advantages of open licensing and the possibility of exploiting their software in other ways. They should also be aware, as has been mentioned, that they have the option of licensing the software with an open and a proprietary license.