Open Source: Debunking the Myths

Open source is based on the concept of “copyleft” which is designed to give programmers freedom to use and modify bits of existing source code without the risk of infringing anyone’s copyright. Generally, open source is aimed at ensuring that the subject of the licence is “free” - and that’s where the confusion begins...

Myth 1: If you modify open source code you must make it freely available to the public In fact, if you modify open source you are not forced to disclose or distribute your modified source code to the public – you can use the modified code in a product or in the context of your own business, without ever making it available to anybody else. But if you choose to distribute it or make it available, you must do so on licence terms no more restrictive than the terms of the licence under which you modified the original open source.

Myth 2: You must distribute modified open source code for free and are not entitled to charge a licence fee “Free” software means that a licensee is free from copyright infringement, it does not mean that the source code is free of any price – or as it is often explained: open source code is “free” in the sense of “freedom of speech” not “free beer”. If you wanted to make your modified source code available to the public you could charge your unsuspecting customers a fee for the download but nothing stops the recipient from making the same source code available to the public for no charge at all. So, while you could think of the download charge as a once-off licence fee, you’re not likely to generate on-going licence revenues from open source code.

By doing this, the principle of open source establishes a licensing system in which there is no “royalty stacking”. Under copyright law, a programmer who modifies and distributes original code would need a licence under the copyright of the original code. If a recipient of this modified code wanted to make further modifications and distribute the further modified code, it would need a licence under the copyright in the original code and the modified code. There could be several iterations of modification until a developer no longer knows who to approach for a licence or what the licence terms are. Then, of course, each copyright proprietor could licence the reproduction/modification of its code only if it is paid a royalty, with the result that the developer is obliged to pay such a large amount in “stacked royalties” that there is no commercial benefit to himself.

Quite plainly, developing software outside of an open source environment is not conducive to a collaborative environment, in which several parties modify and distribute code. With open source, a developer can distribute his code for a once-off charge but after that, a recipient is free to use, modify and redistribute the code without being required to account to anyone or pay anyone a fee for doing so.

Myth 3: All open source is equal The fundamental principle of open source is that modified open source code, if distributed, must be licensed to third parties on the same terms , or terms less restrictive, than the original open source licence. Of course, the terms of the original open source licence may differ. For example, some open source licences also license rights under any relevant patents, to ensure that there is true freedom to use the code, while other licences don’t go that far.

So where a program uses different pieces of open source code, their open source licences must be compatible. For example, around half of all free software packages are currently licensed under the GNU General Public Licence or “GPL”. Open source code subject to other licenses can be combined with code subject to the GNU GPL without conflict, as long as the combination of restrictions on the code as a whole does not restrict the licensee beyond what the GPL permits.

Myth 4: If you are clever, you can circumvent an open source licence Developers have tried to dodge the provisions of open source licences by distributing, for a fee, only binary files or executables – these are files that are not readable or modifiable by humans. Nowadays, the terms of an open source licence typically stipulate that if you distribute binary files corresponding to open source code, then you must also make the source code available under the terms of the open source licence.

Developers have also distributed a combination of open source code and proprietary software, in which case a recipient would be bound to observe restrictive terms of the licence under the proprietary code. To prevent this, some open source licences stipulate that modified versions, as a whole, must be distributed under the terms of the open source licence.

Myth 5: Using open source code shows blatant disregard for copyright law Copyleft derives its enforceability from copyright. It’s only because source code is subject to copyright that a licensee has no right to redistribute it or a modified version on its own terms. A licensee is only required to observe the terms of an open source licence if it wants to exercise rights normally restricted by copyright law, such as redistribution. If a licensee distributes copies of the open source code or code modified from it without honouring the terms of the licence (by restricting the recipient from distributing the code further or obliging them to keep it secret, for example), the licensee can be interdicted and be liable to the owner of the copyright in the original code under the law of copyright and contract.

Open source should be embraced as a prime example of how intellectual property law can stimulate technical advancement and innovation - which is, after all, what it’s there for.

Date published: 2011/09/21
Author: Dina Biagio

Tags: open source myth licence