Open/Free – Beyond Software

December 20, 2011

For lawyers, Open Source software throws up a number of issues which, by and large, present themselves as problems; for developers, OS might seem to be a boon, with some traps along the way.

Underlying the headline points are some deep underlying issues which arouse not just commercial but more particularly political and philosophical controversy. Whilst for convenience I may refer to Open Source, or OS, this itself would be read as a political act in some quarters; the adoption of convenience might be regarded as another political statement. Trying to be apolitical is a political act in itself. So I start with an apology for that; though I doubt I’ll get away with it.

The relatively simple issue is the legal status of OS – or more specifically (and here the first whiffs of controversy start) Free Software.  The Free Software Foundation believes  that source code should be free for copying, sharing and modifying; not free as meaning without a price, but (as they say) free as in freedom; not free as in free beer, but free as in free speech. 

What this means is that free software is not unregulated; to the contrary, it is always made available subject to one of a number of ‘open source’ licences (some 70 odd are popularly in use). One of the first OS licences is the GNU GPL (General Product Licence), the current version of which is version 3. There are a number of other GPLs, including the Affero licence which specifically adds conditions making free software accessed over remote networks open or free; and the GNU Lesser GPL, the Library GPL and the Documentation GPL (which covers manuals). Licenses approved by the Free Software Foundation can be accessed at

The headline ‘lawyer’ issue is that software which uses open source components, and where those products are governed by licenses such as the GPL ones, are then ‘infected’ by a requirement to allow the sharing, copying, modifying and free distribution of the product’s source code.  This is the ingenious concept of ‘Copyleft’ –  turning copyright on its head so that the rights granted by the GPL are automatically attributed to products from which the components are derived. There is a distinction between derivatives, to which the GPL applies, and aggregates (ie collections of components which are not intrinsically connected); in the case of aggregates the free characteristic is not transmitted.

For lawyers advising companies developing and licensing proprietary software, the use of OS components therefore comes with a big health warning – the use of those components may create an obligation to distribute the source code of the product with the product itself, or to make it easily accessible. This is an entirely deliberate attribution. Since the source code is generally regarded as the crown jewels of these companies, guarded jealously and being the font of their livelihood (or wealth), only rarely will they wish to release the code. When they do, it will only be to escrow agents under tightly bound escrow agreements, and under the release conditions of these escrow agreements.

Source code is also therefore the repository of value for most software companies; this is where revenue and shareholder value lies, and a buyer of a software business will generally be extremely diligent in searching for OS components. Those fine people at The Practical Law Company (PLC) have published a set of enquiries to be raised to winkle out the use of OS on acquisitions. Certain companies offer comprehensive OS audits so that sellers can prepare for sale by identifying and swapping out OS components. In Computers & Law in August 2008 (Open Source Software: Top Ten Licences by Bill Jones, Brian Meenagh and Sally Mewies, vol 19, issue 3), and on other occasions, Permissive and Restrictive OS licenses have been discussed; Black Duck, for one, maintain a register of these licences at In these terms, permissive licenses are regarded as the ‘goodies’, in that they permit the use of OS components without themselves making the products from which they are derived Open Source, with a requirement to distribute and disclose source code. The GPL and other licences – the majority – are regarded as the baddies, and the use of terms such as ‘viral’ and ‘infected’ carries a connotation of negativity. These licenses are seen as contrary to the beneficial and bona fide commercial exploitation of software products. The Free Software Foundation (Free Software, Free Society – Richard Stallman 2010) will beg to differ – the vendors of proprietary software are, to them, agents of evil – no less. Their control of source code is contrary to freedom, and a price not worth paying. They should seek other and less personally-intrusive means of generating revenue.

Of course not all Open Source components are in distributed products, and their greatest use may well be embedded within equipment which may be a product but is not an overtly software product. There appear to be no reported cases on OS violation in the UK, but the case of Jacobsen v Katzer  & Kamind Associates (US Court of Appeals, February 2010) has been widely reported here (see, for example, Computers & Law, January 2010 – The Open Source Software Licence: UK Perspective on Jacobsen v Katzer by Clive Thorne and Nicole Mellors, vol 21, issue 6). This case involved the use of model railway controller software known as Decoder Pro, an OS product distributed under the ‘restrictive’ Artistic licence, without attribution and without disclosure of code by a rival company.  There has also been a spate of activity through the Munich District Court where Skype was found to be liable for distributing telephone headsets with embedded OS software without simultaneously distributing the source code.  Other well-known names have also featured.

It has been said that the growth of hosted IT facilities and products would not have happened without the availability of Open Source operating systems to run on the servers, where Linux – or GNU Linux, as it might correctly be called – makes server farms commercially viable, allowing  operators to be free of the near-monopoly cost and upgrade paths of the proprietary server software giants (see The Cloud & Open Source – the New Darlings of Enterprise Computing  by Richard Graham, Computers & Law, September 2011, vol 22, issue 3) .

But here’s the rub; there’s a whole different narrative to this story which can turn it on its head and which raises, at a fundamental level, issues of personal and political freedom, and present itself as a critique of the role and properties of proprietary software which go well beyond shareholder value.

At the core of this is the Free Software Foundation, and its originator and – you may say, and his hirsute messianic appearance may support this – prophet, Dr Richard Stallman. In what is necessarily a simplification, this takes as its starting point that anyone should, out of principle,  be free to share, copy, modify and distribute any source code. This isn’t because this is some fundamental human right; it isn’t. It’s because being prevented from doing this restricts the potential for beneficial development of software, which benefits the whole community, and places control in the hands of proprietary software companies who are able to exert an unacceptable level of control in the name of convenience. This manifests itself as a radical, libertarian philosophical/political construct.

Whist on the face of it the philosophy is libertarian – preaching freedom – it is also highly prescriptive in its fierce disapproval of non-compliant conduct. Developers who work for or on proprietary software are denounced, because proprietary software is described as a predatory practice.  The big software companies – Apple with their ‘iBad’, Amazon with their ‘Swindle’ – are regarded as agents of evil – the moral element, in defence of freedom, is confrontational. Governments are described as agents of occupation representing the interests of mega-corporations.  You are required to consider whose side you are on.

Were this not based on technological sophistication, this might be regarded as antediluvian – Dr Stallman himself avoids staying in hotels in his travels (relying on friendly sofas, and having his suitcase with him on stage) to avoid checking into hotels  and  therefore disclosing his location. He eschews software with surveillance back-doors – and of course he knows what he’s talking about. He will not be found with phones with GPS capability, and will use landlines rather than mobiles.

We know that we live in a surveillance society where everything is known about everyone; we know how prevalent CCTV is – but we also opt for convenience and deep compromise – the automatic security patches, the trusted status for software vendors, the joy of clever apps which can tell us where things we want are; and most of us unthinkingly trade convenience for our privacy.  We don’t have the time or knowledge to search out free or OS alternatives to the big-brand, default programmes which come with the equipment we (or our employers) use.  These are, perhaps, pacts we make with the devil. The FSF would tell us, in moral, fundamentalist (with all that entails) and uncompromising terms, that this is what we are doing, and that it’s the road to secular hell. 

Open Source, then – call it Free Software, and you’re in a different world. And to borrow a phrase from another context – the personal is political. 

Paul Berwin is Managing Director of Berwins and looks after the IT-related and wider commercial requirements of the firm’s clients in the technology sector: