Date: Wed, 19 Jun 2013 11:38:31 +0200
- Contemporary Intellectual Property, Licensing & Information Law
Why are free and open sources licenses different?
Millions of dollars and thousands of hours have been spent during the last decade worrying about how to deal with free and open source software licenses. This leads me to ask ‘what makes these licenses different in a way that attracts all of this attention, both negative and positive?’
The difference does not lie in the fact that the FOSS licenses are less restrictive than a typical “commercial” license. Some are less restrictive, but especially as you move toward the GPL model, other FOSS licenses are more restrictive on the licensee than are most commercial licenses. True, the restrictions often lead in different directions and have different goals. But the scope of risk in incorporating a restrictive license into a product are similar whether the license is an ordinary commercial license or a FOSS license.
The difference does not lie in that the FOSS licenses are more ambiguous than other licenses. Many of them in fact are very ambiguous. Many early licenses were written without legal advice and were poorly drafted; many current licenses contain terms that have not been tested in court and are susceptible to multiple interpretations. But a realistic assessment of current commercial licenses would also reveal many untested and ambiguous terms.
The difference does not lie in that FOSS licenses are more widespread.
The difference does not lie in that FOSS licenses are more diverse in their terms.
Where lies the difference? In three things, I think.
First, FOSS licenses often creep in without a commercial party as a licensor. Doing business with a company whose product or service uses a FOSS license is no more or less difficult than dealing with any licensor. The licensor has terms on which it insists and, unless it can be bargained away from those terms, the licensee either accepts the terms or finds another business solution. This leaves the licensee with an understandable deal and with a counterparty that has a commercial stake in the deal and with whom small lapses in performance can be negotiated.
But many FOSS-based transactions are not commercial in the foregoing sense. Instead, software subject to a FOSS license may come into a product without the producer knowing that this has happened or, in any realistic way, assenting to the terms. Also, the software often comes from a non-commercial party. An engineer downloads software from an academic’s site and uses part or all of it in the company’s newest product. This is fine if one of the truly free, non-restrictive licenses is involved, but it creates potential havoc where one of the falsely labeled free but more restrictive licenses purportedly governs.
Second, especially at the “open source” end of the spectrum, the restrictive terms of many FOSS licenses aim toward eliminating valuable assets of the company by mandating disclosure of source code associated with the FOSS-licensed software. This is the so-called viral effect of FOSS licenses, especially the GPL, and has been widely discussed. I will not reprise that discussion here. FOSS adherents have an almost religious belief that the exact terms of their restrictive licenses will be enforced exactly as written. Knowing both contract and copyright law, I doubt that this will be true, but that is a topic for another day. No company wants to unknowingly put itself into a position of risking valuable assets on the costly roll of the dice that is modern litigation, especially not when the third factor or difference is considered.
Third, in addition to many of the FOSS-based “transactions” not involving a commercial deal or commercial licensor, the supposedly philosophical theory underlying the license is backed by a zealous and very vocal “community”. The group of individuals who make up the open source community resemble a religious cult, except of course that there is no focus on a god-like figure. What this means, however, is that in dealing with a FOSS license, the licensee must not only regard the reactions and goals of an often non-commercial party, but also the reactions of this vocal community. Recently, the Los Angeles sheriff’s department made a huge number more copies of a Wall Data software package than authorized by its license. Hauled into court, it properly lost. But there was no hue and cry brought down against it for violating the terms of the license. If this had been an open source license and one of its core terms was being breached, there would have been a hue and cry throughout the Internet.
This characteristic of open source licenses, of course, increases the cost and risks of one inadvertently becoming part of a product package. Not only must the licensee often worry about a licensor who has no commercial stake in a commercial deal, but it must consider the reactions of a community that also has no stake in the deal.
So, those are at least some of the major differences between FOSS licenses and commercial licenses.