OSS Licensing and Legal Issues
Tags: opensource, linux
Published: 2024-07-07 02:29:53

There are many ways to work with Open Source Software. In particular, what kind of license is adopted will have strong effects on:

* How the project is developed
* How the project is deployed

**There are two broad classes of licenses:**

* Restrictive, such as the GPL in all of its forms
* Permissive, such as the BSD and Apache Foundation Licenses

There is a lot of misinformation spread about Open Source Software and licenses, which can make organizations reluctant to use and develop for it. We will discuss the main kinds of this false information.

## Restrictive vs Permissive Licensing

### Restrictive Licenses

Demand the software remains open and place strong limitations on any attempt to make proprietary closed products. Changes to the code must be made available to future recipients. A prominent example is the GPL (General Public License), a copyleft license.

### Permissive Licenses

Do not require modifications and enhancements to be generally available. Prominent examples include the BSD (Berkeley Software Distribution) and Apache licenses.

## Fear, Uncertainty and Doubt

The term **FUD** is shorthand for **F** ear, **U** ncertainty and **D** oubt (or Elmer Fudd). Surprisingly, first usage goes back as far as the 1920s; use of the acronymic form seems to date from the 1970s.

Broadly speaking, it means disseminating misinformation to influence recipients to avoid certain strategies, products or classes of products by appealing to fear.

Microsoft was widely accused of spreading FUD about Linux in the 1990s. However, in present day, Microsoft has stopped doing so and is actually employing OSS widely.

As applied to OSS, FUD statements include:

* OSS is a virus. If you include it in your product, all your source must be made available to everyone. This is simply not true. One does have to be careful about respecting licenses, but many prominent companies have learned how to combine open and closed software in their offerings. And, there are companies and organizations dedicated to helping ensure this is done properly.
* OSS infringes on software patents, and the related claim that it forces you to grant patent rights to others. This is simply not true. Once again, proper legal analysis is required.
* OSS products leave nowhere to turn when they break, or to get technical help. Many open source products are supported by serious, long-living companies (such as Red Hat Enterprise Linux), as well as smaller organizations. In addition, there is a lot of freely available help online, and there are many consultants that can be hired. In fact, there is more competition available for such help than there would be with vendor lock-in on a product.
* OSS requires a lot of legal help to avoid the above pitfalls, and is thus very expensive. Even proprietary software requires significant legal analysis to properly avoid copyright and patent infringement, etc. OSS is no different and not more expensive. Also, having all the software being available in source form expedites the auditing process. Companies will indeed require interaction with lawyers, either on staff or external, to make sure they do not violate copyrights and licenses. There are many kinds of licenses and one has to be careful. But once an organization develops proper reasonable procedures, it is just a standard part of any project. Part of this is to train the developers to understand the dos and don'ts of working with OSS.

## Software Patents

A software patent gives exclusionary rights to material such as a computer program, library, interfaces or even techniques and algorithms. The earliest software patents appear to have been granted in the early 1960s.

Like all patents, software patents must be filed in for each nation (or trading block such as the European Union) in which coverage is desired. This makes it an expensive and time-consuming project to do thoroughly.

Exactly what a patent can or cannot cover varies from jurisdiction to jurisdiction; e.g., in the United States this means exclusion of "abstract ideas", although what is or is not covered can always be fought about.

Many people feel there should be no software patents at all, that sufficient protections for intellectual property already exist under copyright and trademark laws. However, since it is highly unlikely software patents will be abolished, developers and organizations have to learn to deal with them properly.

More often than not, software patents have been used defensively, with corporations cross-licensing each other’s work to avoid litigation. However, there are many well-known cases of expensive legal battles as well.

The **Open Invention Network** (OIN) was created as a global patent pool; companies and other entities which join the OIN enter in a mutual non-aggression agreement within the Linux-based ecosystem. OIN members agree in return for not suing each other over patent issues, they gain access to each other’s patent portfolio free of charge.

While the OIN has existed since 2005 it has been growing rapidly, to over 3000 members in 2019. Major members include: Google, IBM, NEC, Philips, RedHat, Sony, SUSE, Toyota, and Microsoft. For details about OIN’s mission, how it works and how to join, see its [website](https://openinventionnetwork.com/).

**Microsoft Sells Out**

Microsoft’s joining of OIN in October 2018 was a major event, opening up over 60,000 patents for use by OIN members and, not surprisingly, leading to a spike in new memberships. For many this represented proof of Microsoft’s determination to be a good citizen in the OSS world (of course for others, it fed conspiracy theories...)

......