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Producing Open Source Software by Karl Fogel

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Chapter 9. Licenses, Copyrights, and Patents

The license you select probably won't have a major impact on the adoption of your project, as long as the license is open source. Users generally choose software based on quality and features, not on the details of the license. Nevertheless, you still need a basic understanding of free software licensing issues, both to ensure that the project's license is compatible with its goals, and to be able to discuss licensing decisions with other people. Please note, however, that I am not a lawyer, and that nothing in this chapter should be construed as formal legal advice. For that, you'll need to hire a lawyer or be one.

Terminology

In any discussion of open source licensing, the first thing that becomes apparent is that there seem to be many different words for the same thing: free software, open source, FOSS, F/OSS, and FLOSS. Let's start by sorting those out, along with a few other terms.

Free software

Software that can be freely shared and modified, including in source code form. The term was first coined by Richard Stallman, who codified it in the GNU General Public License (GPL), and who founded the Free Software Foundation (http://www.fsf.org/) to promote the concept.

Although "free software" covers almost exactly the same range of software as "open source," the FSF, among others, prefers the former term because it emphasizes the idea of freedom, and the concept of freely redistributable software as primarily a social movement rather than a technical one. The FSF acknowledges that the term is ambiguous—it could mean "free" as in "zero-cost," instead of "free" as in "freedom"—but feels that it's still the best term, all things considered, and that the other possibilities in English have their own ambiguities. (Throughout this book, "free" is used in the "freedom" sense, not the "zero-cost" sense.)

Open source software

Free software under another name. But the different name reflects an important philosophical difference: "open source" was coined by the Open Source Initiative (http://www.opensource.org/) as a deliberate alternative to "free software," in order to make such software a more palatable choice for corporations, by presenting it as a development methodology rather than a political movement. They may also have wanted to overcome another stigma: that anything "free" must be low quality.

While any license that is free is also open source, and vice versa (with a few minor exceptions), people tend to pick one term and stick with it. In general, those who prefer "free software" are more likely to have a philosophical or moral stance on the issue, while those who prefer "open source" either don't view it as a matter of freedom, or are not interested in advertising the fact that they do. See "Free Versus Open Source" in Chapter 1 for a more detailed history of this schism.

The Free Software Foundation has an excellent—utterly unobjective, but nuanced and quite fair—exegesis of the two terms, at http://www.fsf.org/licensing/essays/free-software-for-freedom.html. The Open Source Initiative's take on it is spread across two pages: http://www.opensource.org/advocacy/case_for_hackers.php#marketing and http://www.opensource.org/advocacy/free-notfree.php.

FOSS, F/OSS, FLOSS

Where there are two of anything, there will soon be three, and that is exactly what is happening with terms for free software. The academic world, perhaps wanting precision and inclusiveness over elegance, seems to have settled on FOSS, or sometimes F/OSS, standing for Free/Open Source Software. Another variant gaining momentum is FLOSS, which stands for Free/Libre Open Source Software ("libre" is familiar in many languages and does not suffer from the ambiguities of "free"; see http://en.wikipedia.org/wiki/FLOSS for more).

All these terms mean essentially the same thing: software that can be modified and redistributed by everyone, sometimes—but not always—with the requirement that derivative works be freely redistributable under the same terms.

DFSG-compliant

Compliant with the Debian Free Software Guidelines (http://www.debian.org/social_contract#guidelines). This is a widely used test for whether a given license is truly open source (free, libre, etc.). The Debian Project's mission is to maintain an entirely free operating system, such that someone installing it need never doubt that she has the right to modify and redistribute any or all of the system. The Debian Free Software Guidelines are the requirements that a software package's license must meet in order to be included in Debian. Because the Debian Project spent a good deal of time thinking about how to construct such a test, the guidelines they came up with have proven very robust (see http://en.wikipedia.org/wiki/DFSG), and as far as I'm aware, no serious objection to them has been raised either by the Free Software Foundation or the Open Source Initiative. If you know that a given license is DFSG-compliant, you know that it guarantees all the important freedoms (such as forkability even against the original author's wishes) required to sustain the dynamics of an open source project. All of the licenses discussed in this chapter are DFSG-compliant.

OSI-approved

Approved by the Open Source Initiative. This is another widely used test of whether a license permits all the necessary freedoms. The OSI's definition of open source software is based on the Debian Free Software Guidelines, and any license that meets one definition almost always meets the other. There have been a few exceptions over the years, but only involving niche licenses and none of any relevance here. Unlike the Debian Project, the OSI maintains a list of all licenses it has ever approved, at http://www.opensource.org/licenses/, so that being "OSI-approved" is an unambiguous state: a license either is or isn't on the list.

The Free Software Foundation also maintains a list of licenses at http://www.fsf.org/licensing/licenses/license-list.html. The FSF categorizes licenses not only by whether they are free, but whether they are compatible with the GNU General Public License. GPL compatibility is an important topic, covered in Section 9.3 later in this chapter.

Proprietary, closed-source

The opposite of "free" or "open source." It means software distributed under traditional, royalty-based licensing terms, where users pay per copy, or under any other terms sufficiently restrictive to prevent open source dynamics from operating. Even software distributed at no charge can still be proprietary, if its license does not permit free redistribution and modification.

Generally "proprietary" and "closed-source" are synonyms. However, "closed-source" additionally implies that the source code cannot even be seen. Since the source code cannot be seen with most proprietary software, this is normally a distinction without a difference. However, occasionally someone releases proprietary software under a license that allows others to view the source code. Confusingly, they sometimes call this "open source" or "nearly open source," etc., but that's misleading. The visibility of the source code is not the issue; the important question is what you're allowed to do with it. Thus, the difference between proprietary and closed-source is mostly irrelevant, and the two can be treated as synonyms.

Sometimes commercial is used as a synonym for "proprietary," but properly speaking, the two are not the same thing. Free software can be commercial software. After all, free software can be sold, as long as the buyers are not restricted from giving away copies themselves. It can be commercialized in other ways as well, for example by selling support, services, and certification. There are multi-million dollar companies built on free software today, so it is clearly neither inherently anti-commercial nor anti-corporate. On the other hand, it is anti-proprietary by its nature, and this is the key way in which it differs from traditional per-copy license models.

Public domain

Having no copyright holder, meaning that there is no one who has the right to restrict copying of the work. Being in the public domain is not the same as having no author. Everything has an author, and even if a work's author or authors choose to put it in the public domain, that doesn't change the fact that they wrote it.

When a work is in the public domain, material from it can be incorporated into a copyrighted work, and thereafter that copy of the material is covered under the same copyright as the whole work. But this does not affect the availability of the original work, which remains in the public domain. Thus, releasing something into the public domain is technically one way to make it "free," according to the guidelines of most free software certifying organizations. However, there are usually good reasons to use a license instead of just releasing into the public domain: even with free software, certain restrictions can be useful, not only to the copyright holder but even to recipients as well, as the next section makes clear.

Copyleft

A license that uses copyright law to achieve a result opposite to traditional copyright. Depending on whom you ask, this means either licenses that permit the freedoms under discussion here, or, more narrowly, licenses that not only permit those freedoms but enforce them, by stipulating that the freedoms must travel with the work. The Free Software Foundation uses the second definition exclusively; elsewhere, it's a toss-up: a lot of people use the term the same way the FSF does, but others—including some who write for mainstream media—tend to use the first definition. It's not clear that everyone using the term is aware that there's a distinction to be made.

The canonical example of the narrower, stricter definition is the GNU General Public License, which stipulates that any derivative works must also be licensed under the GPL; see Section 9.3 later in this chapter.

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