Free the Code: Solution for ip headaches or mp3-like suicide?

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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”,

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”,

"[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 existence1. 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.

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


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. Stallman2. In 1971, the Artificial Intelligence Lab at MIT was working on an operating system called ITS3 which all staff hackers4 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 develop and 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 system7 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 Unix8 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 Linux10as its kernel11. 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" instead16. 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 growth17 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.

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