Workshop: Legal aspects of free and open source software
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35
The short and ultra-simplified history above shows that proprietary software is a relatively
new economic paradigm in software production. It became very popular for a number of
reasons, and it became in the common perception the way that software was made. Some
disagreed that this success was deserved or that such a paradigm was the only, or the
best, way to make software. One of the most famous critics was Richard M. Stallman.
Stallman was a young programmer and researcher at MIT in the early eighties. To him,
acquainted with the academic way of making and sharing software, what happened one day
with a printer was quite a shocking finding.
46
The department where Stallman was working shared a networked printer. They used it to
print sometimes long documents. The printer was frequently jammed, but because the jobs
were long and the printer distant from the working space, it could happen that Stallman
went to collect his batch only to discover that the job was delayed by someone who
launched another one before without checking its result. A lot of delay ensued. Stallman
reworked the source code of the printing software so that instead of just triggering a visual
signal, a network message was sent to the owner of the job, who could timely go to the
printer and remove the jam.
When a new ultra-fast networked laser printer was donated, Stallman thought he could do
the same modifications, but to his disbelief he was not able to find the new source code.
Believing it was a mistake, he asked for it to the developers who wrote the software, only
to find that it was not an error, but a protection of the copyright of the manufacturer and
that there was no chance to restore the previous functionality added by Stallman.
Stallman took it rather personally and decided that he would never tolerate this nonsensical
prohibition against his efforts to improve the software and benefit his peers. He decided to
start a new initiative, which later became the Free Software Foundation, to build an entirely
new operating system and applications that run on it, all released as Free Software. The
operating system was called GNU.
47
When in 1991 Linus Torvalds published Linux, a Unix
kernel (the lowest level of functions of an operating system) for the i386 platform – and
decided to change its license to the GNU GPL, the license under which GNU was released –
GNU and Linux could be combined to make GNU/Linux, the operating system now
commonly known with the “Linux” name.
Why this second wave of Free Software was different from the first, academic, one will be
the argument of the following chapter.
2.
COYPRIGHT, COPYLEFT, COPY-WHAT? A NEW FAMILY
OF LICENSES
Software is protected by copyright. It is also protected by secret, when the corresponding
source code is not distributed. This was the situation that Stallman faced. He was not
allowed to change the code that controlled “his” printer, because he was lacking the legal
rights (copyright also prohibits modifications of the protected work without the permission
of the rightsholder). He was also unable to change it, since he lacked the technical means
to do it, that is, he lacked the source code.
The goal of the Free Software Foundation is to remove these two obstacles for all the
recipients of the software. Therefore the four fundamental Freedoms were conceived:
Freedom #0 to use the software for any purpose
Freedom #1 to study how the program works, and change it so it does your computing as
you wish. Access to the source code is a precondition for this;
Freedom #2 to redistribute copies so you can help your neighbour;
46 The whole story is narrated by Sam Williams, Free as in Freedom. Richard Stallman's Crusade for Free
Software, March 2002. The text is available at http://oreilly.com/openbook/freedom/ch01.html
47 GNU is a recursive acronym “GNU's Not Unix”. Indeed GNU is a rewriting from scratch of a UNIX operating
system.
Policy Department C: Citizens' Rights and Constitutional Affairs
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Freedom #3 to distribute copies of your modified versions to others. By doing this you can
give the whole community a chance to benefit from your changes. Access to the source
code is a precondition for this.
48
One problem was that these freedoms already applied to the first wave of Free Software.
This did not prevent the proprietarization of much of the academic software and the birth of
a large number of reciprocally incompatible versions of Unix, which initially was freely
distributed and modified thanks to a very liberal grant by AT&T Bell Laboratories. In order
for the new Unix and all Free Software to be a “commons” and more importantly to remain
a commons, a simple device was conceived. The permission that accompanied the
software was not unlimited and virtually unconditioned as with the academic licenses. The
permission was granted under stricter conditions, all aimed at making sure that the
software so released could not be turned into, or used within, proprietary software.
The license was called the GNU General Public License, or GPL.
In a way, this was a “hacking” of the copyright system. Instead of using the exclusionary
rights that copyright automatically grants to the copyright holder to make it a scarce good,
thus allowing to charge a price for obtaining it, copyright was used for the reverse effect, to
maintain software as Free and unencumbered as possible. Because in English the contrary
of “right” is “left”, and “left” is a past form of “to leave”, someone coined the term
“copyleft”. “Copyleft” is now common parlance in Free Software licensing, a well
understood term of the trade.
2.1 Strong copyleft, weak copyleft and non copyleft are the three
most relevant categories of Free Software licenses
Software is not built in isolation: reuse of common features, snippets, libraries is a rule.
Free Software is no exception, rather the contrary. If software is released under “liberal”
licenses, which do not contain copyleft conditions, software can be reused at will within and
by software project under any license, and the product of this combination can also be
licensed under any license, including a proprietary one. Because this is precisely what a
copyleft license does not allow to happen, the concept of incompatibility must be
introduced, as well as that of “derivative work”.
In a nutshell, if one takes a bit of software and changes it, the modified software is a
“derivative” of the former, meaning that it is a new work under the copyright of the last
author, but this last copyright holder must obtain the permission from the former copyright
holder not to infringe their rights. In the chain of development of software the original
version is found earlier in the flow of changes, and therefore is called “upstream”, and the
further modifications are “downstream”. In the Free Software world there is no need to
have a direct interaction between the upstream and the downstream developer, the related
permissions being granted once for all by the public license. The downstream developer
only needs to know what license is applied to the software and what conditions are imposed
by it. This is called the “inbound” license. The inbound license dictates the licensing choice
of the downstream developer, or the “outbound” license.
The outbound license needs not be the same of the inbound, but at the same time the
outbound software distribution must be made in compliance with the inbound license. In
other words, one may combine software and distribute such combination only when the
inbound license is the same or is compatible with the outbound. As a rule, the
outbound license must be at least as strict as the inbound, or more, otherwise it would not
respect the conditions of the latter. This is why a more relaxed license is likely to be
compatible with a stricter one, but the reverse is not true, unless special arrangements are
made. Using the best naming convention (the first mentioned license is the inbound
license, the second is the outbound):
no copyleft can be compatible with both weak and strong copyleft (and even with
proprietary);
48 http://www.gnu.org/philosophy/free-sw.html
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