Open-source license
Open-source licenses are
After 1980, the United States began to treat software as a literary work covered by copyright law.
The two main categories of open-source licenses are
Background
Most countries, including the United States (US), have
In 1980, the US government amended the law to treat software as a literary work. Software released after this point was restricted by IP laws.
In the late 90s, two active members of the free software community, Bruce Perens and Eric S. Raymond, founded the Open Source Initiative (OSI). At Debian, Perens had proposed the Debian Free Software Guidelines (DFSG), which formed the basis of OSI's The Open Source Definition. An open-source license is one that complies with this definition to provide software freedom.[14] Eric S. Raymond was a proponent of the term "open source" over "free software". He viewed open source as more appealing to businesses and more reflective of the tangible advantages of FOSS development. One of Raymond's goals was to expand the existing hacker community to include large commercial developers.[15] In The Cathedral and the Bazaar, Raymond compared open-source development to the bazaar, an open-air public market.[16] He argued that aside from ethics, the open model provided advantages that proprietary software could not replicate.[17][18] Raymond focused heavily on feedback, testing, and bug reports.[19] He contrasted the proprietary model where small pools of secretive workers would carry out this work with the development of Linux where the pool of testers included potentially the entire world.[20] He summarized this strength as "Given enough eyeballs, all bugs are shallow."[21] The OSI succeeded in bringing open-source development to corporate developers including Sun Microsystems, IBM, Netscape, Mozilla, Apache, Apple Inc., Microsoft, and Nokia. These companies released code under existing licenses and drafted their own to be approved by the OSI.[22][23]
Types
Open-source licenses are categorized as copyleft or permissive.[24] Copyleft licenses require derivative works to include source code under a similar license. Permissive licenses do not, and therefore the code can be used within proprietary software. Copyleft can be further divided into strong and weak depending on whether they define derivative works broadly or narrowly.[25][26]
Licenses focus on copyright law, but code is also covered by other forms of IP.
Trademarks are the only form of IP not shared by free and open-source software. Trademarks on FOSS function the same as any other trademark.[31] A trademark is a design that identifies the distinct source of a product. Because they distinguish products, the same designs can be used in different fields where there is no risk of confusing similar sources.[32] To give up control of a trademark would result in the loss of that trademark. Therefore, no open-source license freely offers the use of a trademark.[33]
Permissive
Permissive licenses, also known as academic licenses,[34] allow recipients to use, modify, and distribute software with no obligation to provide source code. Institutions created these licenses to distribute their creations to the public.[34] Permissive licenses are usually short, often less than a page of text. They impose few conditions. Most include disclaimers of warranty and obligations to credit authors. A few include explicit provisions for patents, trademarks, and other forms of intellectual property.[35]
The
The
The
Copyleft
Copyleft licenses require source code to be distributed with software and require the source code be made available under a similar license.[25][45] They use the restrictions of IP law—contrary to their usual purpose—to mandate that the code remain open.[46] The term and it's related slogan, "All rights reversed", had been previously used in a playful manner by the Principia Discordia and Tiny BASIC; the modern usage begins with Richard Stallman's efforts to create a free operating system. In 1984, programmer Don Hopkins mailed a manual to Stallman with a "Copyleft Ⓛ" sticker. Stallman, who was working on the GNU operating system, adopted the term.[47] An early version of copyleft licensing was used for the 1985 release of GNU Emacs.[13][48] The term would become associated with the FSF's later reciprocal licenses, notably the GNU General Public License (GPL).[49]
Traditional, proprietary software licenses are written with the goal of increasing
Practical benefits to copyleft licenses have attracted commercial developers. Corporations have used and written reciprocal licenses with a narrower scope than the GPL.
Compatibility
License compatibility determines how code with different licenses can be distributed together. The goal of open-source licensing is to make the work freely available, but this becomes complicated when working with multiple terminologies imposing different requirements.[61] There are many uncommonly used licenses and some projects write their own bespoke agreements. As a result, this causes more confusion than other legal aspects. When releasing a collection of applications, each license can be considered separately. However, when attempting to combine software, code from another project can only be in-licensed if the project uses compatible terms and conditions.[62]
When combining code bases, the original licenses can be maintained for separate components, and the larger work released under a compatible license.[63] This compatibility is often one-way. Public domain content can be used anywhere as there is no copyright claim, but code acquired under any almost any set of terms cannot be waved to the public domain. Permissive licenses can be used within copyleft works, but copyleft material cannot be released under a permissive license. Some weak copyleft licenses can be used under the GPL and are said to be GPL-compatible. GPL software can only be used under the GPL or AGPL. [61] Permissive licenses are broadly compatible because they can cover separate parts of a project. Multiple licenses including the GPL and Apache License have been revised to enhance compatibility.[64]
Enforcement
Free and open-source software licenses have been successfully enforced in civil court since the mid-2000s.[66] In a pair of early lawsuits—Jacobsen v. Katzer in the United States and Welte v. Sitecom in Germany—defendants argued that open-source licenses were invalid.[67][68] Sitecom and Katzer separately argued that the licenses were unenforceable. Both the US and German courts rejected these claims. They ruled that the defendants could not have legally distributed the software if the licenses were unenforceable.[66][65]
Courts have found that distributing software indicates acceptance of the license's terms.
Developers typically achieve compliance without lawsuits. Social pressures, like the potential for community backlash, are often sufficient.[74] Cease and desist letters are a common method to bring companies back into compliance, especially in Germany.[75] A standard process has developed in the German legal system. FOSS developers present companies with a cease and desist letter. These letters outline how to come back into compliance from a violation. German judges can issue a court-mandated cease and desist order to unresponsive companies. Civil cases proceed if these first steps fail. The German procedural laws are clear and favorable to claimants.[76]
Uncertainties remain in how different courts will handle certain aspects of licensing.[77] For software in general, there are debates about what can be patented and what can be copyrighted. Regarding an application programming interface (API), the European Court of Justice noted in the 2012 SAS Institute case that "ideas and principles which underlie [computer program] interfaces are not protected by copyright".[78] In a similar 2021 case, the US Supreme Court permitted the recreation of an API in a transformative product under fair use.[79]
A long-debated subject within the FOSS community is whether open-source licenses are "bare licenses" or contracts.[77] A bare license is a set of conditions under which actions otherwise restricted by IP laws are permitted.[66] Under the bare license interpretation, advocated by the FSF, a case is brought to court by the copyright holder as copyright infringement.[66] Under the contract interpretation, a case can be brought to court by an involved party as a breach of contract.[80] US and French courts have tried cases under both interpretations.[81] Non-profit organizations like FSF and the Software Freedom Conservancy offer to hold the rights to developers' projects to enforce compliance.[76]
Public domain software
When a copyright expires, the work enters the public domain, and is freely available to anyone.[83] Some creative works are not covered by copyright and enter directly into the public domain. In the early history of computing, this applied to software.[10] Early computer software was often given away with hardware.[84] Developed initially at MIT, the pioneering video game Spacewar! was used to both market and test the PDP-1 computer.[85]
According to attorney
A
Limitations
One limitation of open-source licensing, exacerbated by cloud computing, is that a developer cannot prevent another business from commercializing the software.[90] With cloud computing, a vendor hosts the software, and their end users do not have to download, access, or even know about the code in use.[91] Since 2010, the cloud model has grown in prominence. Commercial vendors of hosted software have profited from open-source code bases, with some contributing back open-source code and others contributing nearly nothing. Because the cloud software is hosted rather than distributed, some copyleft licenses will not be triggered.[92] Some free software developers affected by this have used the AGPL, a copyleft license written for hosted software.[93] Others have shifted to using proprietary licenses with some features of open-source licensing.[94] For example, source-available software is a proprietary model, where software comes with source code as a reference.[95]
Another limitation inherent in open-source licenses is the potential for trademark overlap. Copyrights and patents are made freely available, but trademarks are not.[96] Trademarks for open-source software work the same as those for proprietary software.[97] Trademark restrictions can overlap copyrights and affect material otherwise freely available.[98] The US Supreme Court described using trademark law to restrict public domain content as "mutant copyright".[99] In Dastar Corp. v. Twentieth Century Fox Film Corp., the court "caution[ed] against misuse or over-extension of trademark" law without providing a firm decision on those mutant copyrights.[100][101] Trademark overlap can leave open-source and free content projects vulnerable to a "hostile takeover" if outside parties file for trademarks on derivative works.[102] Notably, Andrey Duskin applied for trademarks on the SCP Foundation, a collaborative writing project, when creating derivative works based on SCP stories.[103]
See also
- Beerware
- Comparison of free and open-source software licenses
- List of free-content licenses
- Multi-licensing
- Software Composition Analysis
- List of free and open-source software licenses
- List of copyleft software licenses
- List of permissive software licenses
Notes
- ^ Rosen 2005, p. 22.
- ^ Rosen 2005, pp. 22–23.
- ^ a b Rosen 2005, p. 15.
- ^ "Berne Convention". Wex. Cornell Law School. November 2021.
- ^ Fagundes & Perzanowski 2020, p. 529.
- ^ Rosen 2005, p. 17.
- ^ Rosen 2005, pp. 27–28.
- ^ Rosen 2005, pp. 28–29.
- ^ Rosen 2005, p. 28.
- ^ a b Oman 2018, pp. 641–642.
- ^ Williams 2002, ch. 1.
- ^ Williams 2002, ch. 7.
- ^ a b Williams 2002, ch. 9.
- ^ Perens 1999, ¶ 16.
- ^ Raymond 1999, "Memes and Mythmaking".
- ^ Meeker 2020, 2:33–3:06.
- ^ Raymond 2001, "The Cathedral and the Bazaar".
- ^ Brock 2022, § 16.3.4.
- ^ Raymond 2001.
- ^ Raymond 2001, "The Social Context of Open-Source Software".
- ^ Raymond 2001, p. 19.
- ^ Onetti & Verma 2009, p. 69.
- ^ a b Hammerly, Paquin & Walton 1999.
- ^ Smith 2022, § 3.2.
- ^ a b Sen, Subramaniam & Nelson 2008, pp. 211–212.
- ^ a b Meeker 2020, 16:13.
- ^ a b Rosen 2005, pp. 22–24.
- ^ Bain & Smith 2022, § 10.4.3.
- ^ Bain & Smith 2022, § 10.4.2.
- ^ a b Bain & Smith 2022, § 10.4.4.
- ^ Chestek 2022, p. 30.
- ^ Chestek 2022, pp. 184–185.
- ^ Rosen 2005, p. 38.
- ^ a b Rosen 2005, p. 69.
- ^ Rosen 2005, pp. 101–102.
- ^ a b Smith 2022, § 3.2.1.1.
- ^ OSI 2023.
- ^ a b Rosen 2005, pp. 73–90.
- ^ OSI 2023, "The MIT License".
- ^ Smith 2022, § 3.2.1.2.
- ^ Bain & Smith 2022, § 10.4.2.
- ^ OSI 2023, "Apache License, Version 2.0".
- ^ Bain & Smith 2022, ch. 10.
- ^ Bain & Smith 2022, § 10.4.4.
- ^ St. Laurent 2004, pp. 38–39.
- ^ Rosen 2005, pp. 103–106.
- ^ Keats 2010, p. 64.
- ^ "Full text of GNU Emacs copying permission notice". 1985.
- ^ Keats 2010, pp. 63–67.
- ^ Rosen 2005, pp. 103–109.
- ^ Meeker 2020, 6:00–7:22.
- ^ Joy 2022, pp. 990–992.
- ^ Onetti & Verma 2009, p. 71.
- ^ St. Laurent 2004, pp. 81–83, 114.
- ^ Ballhausen 2019, p. 82.
- ^ St. Laurent 2004, pp. 68, 75.
- ^ a b Tsai 2008, pp. 564–570.
- ^ Hammerly, Paquin & Walton 1999, ¶ 23.
- ^ Sen, Subramaniam & Nelson 2008, pp. 212–213.
- ^ Rosen 2005, refer to corresponding chapters.
- ^ a b Smith 2022, § 3.3.
- ^ Rosen 2005, pp. 243–247.
- ^ St. Laurent 2004, pp. 159–163.
- ^ See Smith 2022, p. 102 for: Apache License version 2.0 in 2004, GPL version 3 in 2007, LGPL version 3 in 2007, and AGPL version 3 in 2007. See Smith 2022, pp. 95–101 for: MPL version 2.0 in 2012 and EPL version 2 in 2017.
- ^ a b Ballhausen 2022, § 5.3.
- ^ a b c d Smith 2022, § 3.4.1.
- Fed. Cir.2008).
- Welte v. Sitecom (District Court of Munich 2004), No. 21 O 6123/04.
- ^ Smith 2022, p. 106.
- ^ Rosen 2005, p. 137.
- ^ Rosen 2005, p. 138.
- ^ Rosen 2005, ch. 6.
- ^ Meeker 2020, 17:04.
- ^ St. Laurent 2004, pp. 158–159.
- ^ Ballhausen 2022, p. 127.
- ^ a b Ballhausen 2022, § 5.4.
- ^ a b Walden 2022, § 1.1.
- ^ Smith 2022, § 3.1.3.
- ^ Google LLC v. Oracle America, Inc., 593 U.S. pinpoint=1203 (2021).
- ^ Smith 2022, § 3.4.2.
- ^ Smith 2022, § 3.4.
- ^ Ross 2021, "Spacewar: End of Development".
- ^ a b Rosen 2005, p. 36.
- ^ Walden 2022, p. 3.
- ^ Smith 2019, pp. 55–56.
- ^ Rosen 2005, pp. 74–77.
- ^ St. Laurent 2004, p. 98.
- ^ Fagundes & Perzanowski 2020, p. 524.
- ^ Joy 2022, pp. 1008–1010.
- ^ Brock 2022, § 16.3.3.
- ^ Brock 2022, § 16.4.2.8.
- ^ Brock 2022, § 16.5.2.
- ^ Brock 2022, § 16.4.2.2.
- ^ Brock 2022, § 16.5.3.
- ^ Kunert 2022.
- ^ Chestek 2022, § 9.1.
- ^ Chestek 2022, § 9.7.
- ^ Joy 2022, p. 986.
- ^ Joy 2022, p. 989.
- ^ Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 34 (2003).
- ^ Joy 2022, pp. 987–988.
- ^ Joy 2022, pp. 1004–1006.
- ^ Joy 2022, pp. 979, 1002.
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