FOSS Intro

Free and Open Source Software
An Introduction
Rowan Wilson
rowan.wilson@it.ox.ac.uk

What we will be talking about:
 What is 'free'? What is 'open'?
 How does FOSS licensing work?
 Three common FOSS licences

What is Free and Open Source Software?
Software that the user has the right to adapt and
distribute
Access to the source code
Often available at minimal or no cost
Often maintained and developed by a community
Basis of later open licences like Creative Commons
and Open Database License

Some History
Until the late 1970s most software thought to have little
intrinsic value
Exchange of software and its source code normal (with
licences that allowed adaptation and redistribution)
Arrival of personal computers in the mid 1970s changed
the perception of software's value
Software became productized, source code kept private
Many developers, particularly within academic
communities, felt that this was detrimental to software
quality

“The amount of royalties we have received from sales to
hobbyists makes the time spent [on] Altair BASIC worth less
than $2 an hour.
Why is this? As the majority of hobbyists must be aware, most of you
steal your software. Hardware must be paid for, but software is
something to share. Who cares if the people who worked on it get
paid?”
Bill Gates Computer Notes 1976

“I consider that the golden rule requires that if I like a program I
must share it with other people who like it. Software sellers want to
divide the users and conquer them, making each user agree not to
share with others. I refuse to break solidarity with other users in
this way…
So that I can continue to use computers without dishonor, I have
decided to put together a sufficient body of free software so that I
will be able to get along without any software that is not free.”
Richard Stallman, GNU Manifesto, 1985

Some More History
In 1985, as a reaction to the growing trend towards ‘closed
source’ software, MIT Artificial Intelligence researcher
Richard Stallman wrote a new software licence
His licence (the GNU General Public Licence or GPL)
permitted free redistribution and adaptation by anyone but
mandated that derivative works must carry the same licence
(“copyleft”)

Some More History
Stallman also founds the Free Software Foundation
(FSF) in 1985, committed to maintaining software 'Freedom'
as both a pragmatic and political aim
Unfortunately, in English, this use of 'Free' is widely thought
to refer to price, not liberty (free beer vs free speech)
Echoing President Franklin D. Roosevelt’s 1941 ‘Four
Freedoms’ speech, Stallman created four software-related
freedoms that his organisation sought to protect.
Being a computer programmer, Stallman started his
numbering from ‘0’

The FSF's Four Freedoms
The freedom to run the program, for any purpose
(freedom 0).
The freedom to study how the program works, and
adapt it to your needs (freedom 1). Access to the
source code is a precondition for this.
The freedom to redistribute copies so you can help
your neighbor (freedom 2).
 The freedom to improve the program, and release
your improvements to the public, so that the whole
community benefits (freedom 3). Access to the source
code is a precondition for this.

Yet More History
In 1991, a Finnish computer science student called Linus
Torvalds starts working on Linux, a Unix-like operating
system that will run on IBM-PCs and is licensed under the GPL
v2
Over the next five years, Torvalds builds a fully functioning
Unix operating system with help from other remote
programmers leveraging the power of the internet and the
freedom to adapt and redistribute provided by FOSS licensing
In 1997 programmer Eric Raymond publishes an essay
called 'The Cathedral and The Bazaar'

“Linux is subversive. Who would have thought even five years ago
(1991) that a world-class operating system could coalesce as if by
magic out of part-time hacking by several thousand developers
scattered all over the planet, connected only by the tenuous strands of
the Internet?”
Eric Raymond, The Cathedral and the Bazaar, 1996-7

Yet More History
In early 1998, partly as a result of the success of
Raymond's essay, Netscape decides to release the source
code of its struggling web browser to the world
Some within the Free Software community decide that
Raymond's apolitical, business-friendly explanation of the
virtues of the Free Software ought to have an advocacy group
In February 1998 the Open Source Initiative is founded,
with Raymond as its first president. The term 'Open Source'
begins to be widely used.

Open Source Initiative
 The OSI adapts the Debian Free Software Guidelines to
define what it means by ‘Open Source’
 The resulting Open Source Definition gives ten criteria
for an ‘open source’ licence

Open Source Definition
Freely Redistributable
Source Code Included
Derived Works Permitted
Integrity of Author’s Source Code (diffs and patches)
No Discrimination Against Persons or Groups
No Discrimination Against Fields of Endeavour
Distribution of Licence (no additional licences required)
Licence Must Not Be Specific to a Product (or distribution)
Licence Must Not Restrict Other Software
Licence Must Be Technology-Neutral (no 'click wrap')

Open Source Initiative
 Over seventy licences are accredited by the OSI as
meeting these criteria
The most commonly used are the BSD (permissive) and the
GPL (copyleft)
For practical purposes OSS Watch defines its remit with
reference to the OSI approved licence list

Words and Tensions
Many ‘Free Software’ supporters, including Richard
Stallman, see the OSI as a deliberate attempt to
appropriate their movement while stripping it of its political
aims.
The language itself has become politicised
Whether one says ‘Free’ or ‘Open’ has become an indicator of
which ‘side’ one supports
 The unwieldy phrase ‘Free and Open Source Software’ is
used by those who do not wish to take sides
Stallman also campaigns against use of phrases like
‘intellectual property’ and ‘secure’

FOSS and Mobile
 One area where FOSS has made huge inroads in recent
years is in mobile phones and other mobile devices
 Android (based on Linux), Google’s smartphone operating
system, is seeing very rapid adoption by Motorola, Samsung,
HTC, Sony Ericsson, Dell and many others
WebKit browser – used in all iOS and Android devices,
newer Blackberry devices as well as Safari, Opera and
Chrome on the desktop
Google 'forked' WebKit in early 2013 to create a new
project called 'Blink'

FOSS and Mobile
 Increasingly mobile devices compete on UX rather than
core functionality
 Linux provides a way for new entrants to a market to
concentrate resources on UX ('differentiating technology')
 Oracle sued Google, Microsoft sued HTC successfully,
Apple suing HTC and Samsung

How FOSS Licensing Works...
What is an FOSS Licence?
A licence to exercise rights normally reserved to the
owner by copyright law
Consistent with Open Source Definition (or Four
Freedoms)
Either explicitly perpetual or practically so
A licence which offers a grant of rights to anyone

How does copyright law protect FOSS software?
No explicit communicated acceptance necessary
Copyright law effectively prevents copying, adaptation
and distribution of copyright material without a licence
FOSS licences provide an avenue to licensed use if the
user abides by the conditions
Without the licence, it is likely no permission exists, and
the author can take action for copyright infringement
Generally considered to work, but little case law

FOSS Case Law
Since 2004 District Courts in Germany have repeatedly
confirmed the enforceability of the requirements of the GNU
General Public License v2
In 2005 a US District Court rejected a suit against the Free
Software Foundation alleging anti-competitive behaviour:
"[The GPL] acts as a means by which certain software may be
copied, modified and redistributed without violating the
software’s copyright protection… As such, the GPL encourages,
rather than discourages, free competition and the distribution of
computer operating systems, the benefits of which directly pass
to consumers. These benefits include lower prices, better access
and more innovation."
 Verizon, BT, D-Link, Gigabyte and many other large technology
players have met requirements under GPL once legal action was
threatened

FOSS Case Law
Jacobsen vs Katzer (US, California, 2009-10) -
Conditions in the licence serve to limit the scope of the
grant. Amicus briefs submitted by Wikipedia, Creative
Commons, The Linux Foundation, The PERL Foundation,
The Open Source Inititiative, Software Freedom Law
Center.
Compliance is usually all that plantiff demands
Social and community pressures play a large role (SCO,
Blackboard)
Large companies like IBM, Novell and Oracle have a
stake in the enforceability of FOSS licences

FOSS-adjacent Case Law
Oracle v Google (US, California, 2011-13) – Oracle
alleged that the Java-compatible runtime Dalvik used in
Google’s mobile Android operating system infringed their
copyright by reproducing Java API definitions
Oracle lost heavily, but got a reversal on appeal to the
Federal Court. The case is now back in District Court to
consider Google’s fair use defence.

SAS v. WPL (UK then ECJ 2011-12) – WPL created a runtime
environment for a language SAS created. SAS argued that this
infringed on their copyright in the language itself.
UK and ECJ found that computer languages, like natural
languages, are not copyrighted expressions in themselves but
structures for the building of copyrighted expressions
The same judgement found that the structures of data files could
be protected by copyright

How do FOSS Licences deal with patents?
Some licences (Apache 2, Nokia, Microsoft Reciprocal
Licence and many others) explicitly grant rights to
licensor's patents that are necessarily infringed by use or
distribution
Even those that do not will grant implied licences (in
some jurisdictions) by permitting acts that would require a
patent licence
Some licences terminate their patent grants if the
licensee initiates patent infringement litigation against the
licensor

Versata, Ameriprise, Ximpleware (US 2014-) – Case covers a
selection of FOSS issues: What is distribution? Are FOSS licences
conditioned licences or licences via covenant? Does a FOSS
licence include an implied patent grant?
 Still going on
 Passed back to state court, so no Federal precedent
 Interesting in that it represents an example of the
‘Doomsday Scenario’ that opponents of FOSS have been
warning of for years

Three Common FOSS Licences
 GNU General Public License v2
Modified BSD (Berkeley Software Distribution)
License
Mozilla Public License v2

GNU General Public License v2
Significant Features
All modified versions of GPL-licensed software
must also be distributed under the GPL (if they
are distributed at all) (section 2)
 All modified versions must advertise
prominently what has been modified, who
modified it, and when it was modified.
 Source code must be provided with all GPL-licensed
software, either directly or via a request
to the distributor (section 3)

 All licensees of the software gain their licence
directly from the original licensor (section 6).
 No redistributing licensee may impose further
restrictions on recipients (section 6)
 Additional restrictions placed on a licensee by
a court mean that the licensee cannot distribute
the software at all (section 7)

Notes
 Section 2 embodies the 'copyleft' or 'viral' aspect
of the GPL. Where GPLed code is used to produce a
'derivative work' (US term) the resulting work must
also be licensed under the GPL if it is distributed
 The intention of this section is to prevent code
that has been released to the community under an
open source licence being 'closed' again by licensee
who wishes to redistribute a work based on GPL'd
code without also providing the source code to
those who receive it. This usually happens when
someone wants to make a closed-source
commercial product using GPL'd code.

Modified BSD (Berkeley Software Distribution)
License
 Short
 Unmodified versions of the software must
retain the copyright statement, the licence
conditions and the disclaimer of warranties.
 Prior permission must be obtained from the
licensor before their name can be attached to
any modified version.

Modified BSD (Berkeley Software Distribution)
License
Notes
 The BSD licence does not prevent the code it
licenses being absorbed into a closed source
derivative.
 It is most appropriate for software which the author
wishes to be as widely used as possible, regardless of
whether it remains open source – for example code
that implements a standard.
 The Modified BSD License is compatible with the GPL
– code licensed under it can be combined with GPL'd
code and the whole released under the GPL with no
problems.

Mozilla Public License v2
 Additions to files under the MPLv2 must themselves be licensed by
the author as MPL v2
Entirely new files added to MPL v2 projects can be under the
whatever licence the file author chooses
Code under the MPL v2 can be incorporated into GPL and variant-licensed
projects

Links
OSS Watch – http://www.oss-watch.ac.uk/
Free Software Foundation - http://www.fsf.org
Open Source Initiative – http://www.opensource.org/
SFLC’s Legal Issues Primer for Open Source and Free Software Projects
http://www.softwarefreedom.org/resources/2008/FOSS-primer.html
The International Free and Open Source Software Law Review
http://www.ifosslr.org/ifosslr/index

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