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Free/Open Source Software
Licensing
Shun-ling Chen

Asia-Pacific Development Information Programme

e-Primers on Free/Open Source Software
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 TABLE OF CONTENT

PREFACE v

INTRODUCTION 1

AN OVERVIEW OF “INTELLECTUAL PROPERTY RIGHTS” 2

COPYRIGHT BASICS 4
Why do We have Copyright? 4
What can be Copyrighted? 4
How do I Copyright my Work? 4
What Rights are Granted to the Copyright Holder? 4
The Expansion of Copyright Law 4
From National to International 5
The Abolition of Formality Requirements 5

SOFTWARE AND COPYRIGHT 6

Extension of Copyright Law to Software 6
Copyrightability of the Source Code and the Object Code 6
Users’ Rights Denied in Proprietary Licensing Models 6

HOW IS FOSS DIFFERENT FROM PROPRIETARY SOFTWARE? 7

Transition in IT Industry and Legal Institutions 7
Richard Stallman on a Stark Moral Decision 7
Free Software Defined 7
Creating a Free Software Environment 8
Open Source Software 8
Open Source Definition 8
OSI-approved Licenses 9
Free or Restrictive? 9

HOW TO MAKE THE SOURCE FREE/OPEN 10

GNU General Public License 12
Copyleft 12
Major Terms and Conditions of GNU GPL 12
GNU Lesser General Public License 13
Major Terms and Conditions of LGPL 14
BSD Style Licenses 14
Multiple Licensing 15
What about Documentation? 15
GNU Free Documentation License (GNU FDL) 15
Creative Commons Licenses 16

SCENARIOS 17
End-user (Individual/Business/Government) 17
Developer (Individual, Business) 18
When Starting a New Project 18
When Modifying an Existing Module 19
When Integrating Different FOSS Modules into One Service 19
Vendor/Producer (Business) 20
Government-sponsored Projects 21
Government-funded FOSS Projects: Cases for the Asia-Pacific 21
ONLINE LEGAL RESOURCES AND MATERIALS 24

GLOSSARY 25

ABOUT THE AUTHOR 28

ACKNOWLEDGEMENTS 29
 PREFACE

Under the current copyright regime, software users are subject to restrictive regulations. This regime is
said to provide individuals with incentives in terms of economic returns and thus encourages them to
develop creative works. However, some software developers disagree with this default configuration of
copyright law and value other things more than short-term economic incentives.

The Free/Open Source Software (FOSS) Movement was started by grassroots developers who are not
content with the current copyright system. They tactically use specifically designed FOSS licenses to
allow a community with a different world-view to develop and flourish. Lawyers are sometimes brought
in to facilitate the collaboration between developers.

However, software development and software licensing are very different activities, and developers and
lawyers often have very different mindsets. While developers tend to use whatever resources are available
to them to achieve a particular feature, lawyers may request a copy of the license of every existing
module that developers wish to adopt, before they actually approve the integration into the project.
And while developers tend to use acronyms to make their communication more succinct, lawyers tend
to use arcane terms and complicated sentences to make sure their ideas can be clearly delivered.
Therefore, in order to successfully develop FOSS applications, both these professions are required to
cooperate with each other.

As the FOSS Movement has been growing rapidly in recent years, more and more different kinds of
stakeholders are brought in to participate in different roles. Some of them are end-users, developers,
business entities, or government agencies that provide funding for FOSS projects. This primer is designed
to provide these stakeholders with some basic knowledge about copyright, software copyright and
FOSS licenses. Legal issues may vary in different situations and this primer may not be able to provide
answers to all situations. But, hopefully, it will serve as a bridge between lawyers and non-lawyers in this
joint venture of FOSS development.

v
 INTRODUCTION

A general introduction to free/open source software (FOSS) is provided in the first of this series of primers.
That first primer is available at the International Open Source Network (IOSN) website at:

http://www.iosn.net/foss/foss-general-primer/foss_primer_current.pdf

Under the prevailing copyright regime, licenses decide whether software can be free and/or open. As
David Wheeler said, FOSS are programs whose licenses give users the freedom to run them for any purpose,
to study and modify them, and to redistribute copies of either the original or modified programs without
having to pay royalties to original developers.1

Starting from the mid-1980s, the birth of the GNU General Public License (GNU GPL or GPL) has enabled
a model for software development.2 Following GNU GPL, various FOSS licenses have been drafted and
adopted by FOSS communities, academic institutes and commercial companies. The number of FOSS
licenses is growing rapidly. In early 2003, 43 licenses were recognized by the Open Source Initiative (OSI)
as open source licenses. A year-and-a-half later, in July 2004, the number had reached 54. The diversity
among FOSS licenses sometimes causes confusion and difficulty for people who want to participate in
FOSS projects or adopt FOSS solutions. Some have argued that to reduce the transaction cost, new licenses
should not be created. However, the number of FOSS licenses has been growing.3

This primer aims to provide an introduction to FOSS licensing issues. It begins with a brief overview of
“intellectual property” rights,4 and then moves on to the development of copyright law, the category of
“intellectual property” that is most relevant here. The primer will then examine different proprietary and
FOSS licenses which use copyright law to regulate the use of software. Finally, it briefly explains how the
FOSS movement uses licenses as a way to create a different model of software development.

There are many FOSS licenses, and they may differ from each other in major ways. Due to page limitations,
however, only three pervasively adopted licenses are discussed in this primer: the GNU GPL, the GNU
Lesser General Public License (LGPL) and the Berkeley Software Distribution (BSD) style licenses. These
three are important not only because a large number of FOSS projects are under licenses, but also because
they represent very different styles of FOSS licensing.

In the last section of the primer, some scenarios are given to highlight possible copyright issues regarding
the use of FOSS by end-users, developers and vendors. Given the increased attention paid by governments
to FOSS development, the primer also includes two cases regarding government-sponsored FOSS projects.

1
Wheeler, D., “Why OSS/FS? Look at the Numbers!” Available from http://www.dwheeler.com/oss_fs_why.html; accessed on 7
November 2003.
2
GNU is a recursive acronym for “Gnu’s not Unix”.
3
For example, five licenses were approved in February 2004, and two licenses were added to the list of approved licenses in June
2004. Available from http://www.opensource.org/weblog/2004/01/03#newsblog and opensource.org/weblog/2004/06/03#Jun2-04;
accessed on 5 July 2004.
4
The term “Intellectual Property” covers different areas of law such as Copyright, Patent, and Trademark. Some people, especially free
software advocates, advise against using the term because they believe that these different areas of law cannot be generalized.
Another reason to object to its usage is that the term implies that these disparate legal issues are taken as based on an analogy of the
property rights to tangible objects, whereas software is intangible. See, for example, “Some Confusing or Loaded Words and Phrases
that are Worth Avoiding.” Available from http://www.fsf.org/philosophy/words-to-avoid.html; accessed on 9 November 2004.
It is true that the term “intellectual property” is relatively new and is loaded with the above meaning. Nevertheless, since the existing
legal structure does take intangible objects as tangible objects, the term is still used in this primer but is within quotation marks to
draw attention to these critical opinions.

1
 AN OVERVIEW OF
“INTELLECTUAL PROPERTY RIGHTS”

Intangible products of human creative activities are regarded as a kind of property and are granted
protection in the same way as property rights have been traditionally protected and applied to tangible
objects.

Copyright, patent, trademark and trade secret all fall under the category of “intellectual property”. But
each must be understood to be significantly distinct from the others.

Trade Secret

A trade secret is a confidential practice, method, process, design, the “know-how” or other
information used by a business to compete with other businesses. The precise language by which
a trade secret is defined varies by jurisdiction. However, there are three factors that (though
subject to different interpretations) are common to all such definitions: a trade secret is some
sort of information that is not generally known to the relevant portion of the public; confers
some sort of economic benefit on its holder; is the subject of reasonable efforts to maintain its
secrecy. Trade secrets are regulated by using a variety of civil and commercial means, such as
confidentiality or non-disclosure agreements signed by those who are given access to special
knowledge and information.5

Trademark

Trademarks are the distinctive names, phrases, symbols, designs, pictures or styles used by a
business to identify itself and its products or services to its consumers. In many countries, colours,
three-dimensional marks, sounds, and even smells can also be trademarked.6

Patent

While trade secrets enable a business to keep certain information from the public, patents are
designed to grant the inventor monopoly rights or monopoly status over certain newly developed
knowledge for a period of time (usually 20 years) in exchange for its disclosure. Typically, to gain
such rights, the inventor is required to file a patent application, which will be reviewed by a
designated patent examiner. Novelty of the invention is an essential criterion in granting a patent.7

Copyright

Copyright is applied to various kinds of creative works, such as literary works, music compositions,
paintings and software. Unlike patents, copyright applies to a work upon its creation, regardless
of its novelty.

However, the ideas employed by the work cannot be copyrighted. Copyright only prevents others
from copying the copyright holder’s particular way of expressing those ideas.8 Under Copyright
Law, the copyright holder is entitled to exclusive rights of reproduction, modification, distribution,
and public display and performance of her copyrighted work. A license is often used to explain
under which terms and conditions the work can be used. To accommodate different situations,
the copyright holder is entitled to draft and adopt different kinds of licenses for each piece of
her work.

5
Available from http://en.wikipedia.org/wiki/Trade_secret; accessed on 27 July 2004.
6
Available from http://en.wikipedia.org/wiki/Trademark; accessed on 27 July 2004.
7
Available from http://en.wikipedia.org/wiki/Patents; accessed on 27 July 2004.
8
Available from http://en.wikipedia.org/wiki/Copyright; accessed on 27 July 2004.

2
 An Overview of “Intellectual Property Rights”  3

How is software regulated?

Software is now subject to Copyright Law. Moreover, in recent years it has been argued that
software should be patentable as well. Although software patents have been granted in some
cases, they are still questioned by many, especially by the FOSS community. Due to page limits
and the complexity of the issue, this primer does not address this topic.
 COPYRIGHT BASICS

Why do We have Copyright?

Compared to other legal concepts, copyright is a relatively new invention in human history. The
development of copyright regulation reflects the social and technological transformation around human
creative activity and distribution of the resultant profits. While granting exclusive private rights to authors
or copyright holders has been considered as a way of encouraging human creative activity, copyright
law also claims to recognize the larger public interest, particularly with respect to education, research
and access to information.9

Copyright law uses various means to balance public and private interests. In the Statute of Anne (1710),
the earliest modern copyright law, authorities are allowed to limit and control the price of printed books
according to their best judgement. In the United States Constitution, authors are granted exclusive rights
to their writings within a limited time. In copyright law, fair use exceptions are specified to avoid the
drawbacks of excessive assertion of exclusive rights and to attain a balance between conflicting interests.

What can be Copyrighted?

Copyright applies to the expression of ideas in different forms, including literary, dramatic, musical, artistic,
and other intellectual works.10 The ideas expressed in such works are themselves not copyrightable.11
Since the 1980s, the copyrightability of software became internationally accepted.12

How do I Copyright my Work?

Nowadays, copyright law does not require formalities. The author does not need to publish, register, pay
a registration fee of any kind, nor attach a copyright notice to her work, for her copyright to take effect.
Copyright is automatically applied to a work once it is created13 and the creator of the work automatically
becomes the copyright holder.

What Rights are Granted to the Copyright Holder?

Copyright is actually a bundle of rights, including the right to reproduce the work, to prepare derivative
works based on it, to distribute copies of a work, and to perform and display a copyrighted work publicly.
A few other kinds of rights are defined in copyright law.14 Without the consent of the copyright holder, it
is illegal for anyone to perform any of the activities mentioned above.

The Expansion of Copyright Law

Copyright Law has been expanded with time.

The first copyright legislation (the Statute of Anne, 1710): Compared to other legal systems, copyright
law came relatively late in human civilization. The first known copyright legislation was the Statute of
Anne, enacted in 1710 in Great Britain.15 For a newly created work, the Statute of Anne granted the

9
As stated in the Preamble of WIPO Copyright Treaty. Available from http://www.wipo.int/clea/docs/en/wo/wo033en.htm; accessed
on 29 June 2004.
10
Available from http://www.wipo.int/copyright/en/faq/faqs.htm#rights; accessed on 28 June 2004.
11
Available from http://www.wipo.int/copyright/en/faq/faqs.htm#ideas; accessed on 28 June 2004.
12
Available from http://www.wipo.int/copyright/en/faq/faqs.htm#P39_5114; accessed on 28 June 2004.1
13
Different jurisdiction may have been set at different points when copyright came into existence. Some jurisdiction may require the
work to be fixed, others may only ask the work to be finished.
14
Available from http://www.wipo.int/copyright/en/faq/faqs.htm#rights; accessed on 28 June 2004.
15
Available from http://www.copyrighthistory.com/anne.html; accessed on 28 June 2004.

4
 Copyright Basics  5

copyright holders the right to print and reprint books and other writings for 14 years.

All-dimensional expansion of copyright law: We can see from the Statute of Anne that, initially, the
scope of copyright was quite limited. The copyrightable works were limited to books and other writings,
the rights granted to the copyright holder were limited to printing and reprinting the work, and the
length of the protection was limited to 14 years. Now, copyright law does much more. Copyrightable
works now include paintings, sculpture, music compositions, music recording, architecture, and software.
The bundle of rights granted to the copyright holder have been expanded to include the right to print,
reprint, modify, display publicly, perform publicly, and distribute the work. Moreover, the term of copyright
protection has been increased to 50 years after the author’s death. (In Europe and the US, it has been
expanded to 70 years.)16

From National to International

The expansion of copyright law has not been limited to one jurisdiction; it has become standardized
internationally.

Berne Convention: In the late 19th century, as copyrighted works gradually became important in
international trade, the transnational copyright system gradually became a serious issue. The Berne
Convention of 1886 first introduced the national treatment principle. This means that signatories to the
Berne Convention will treat the work of a foreign copyright holder just as they treat their own citizens’
work. Thus, it created an international standard for copyright regulation.

However, without a dispute resolution mechanism, the Berne Convention offered a somewhat weak
copyright, as it will be too costly for copyright holders to claim their rights in a foreign country where
they believed their rights had been infringed.

More enforceable international standard: WTO and TRIPs: In the 1990s, the World Trade Organization
(WTO) and the Trade Related Intellectual Property Agreement (TRIPs) sought to establish a stronger
international copyright regime. Every economy intending to become a WTO member is required to sign
the TRIPs, and every TRIPs signatory must agree to comply with all of the key sections of the Berne
Convention. The WTO also provides a dispute-settlement and enforcement mechanism for copyright
infringements among member countries. Thus, copyright has become more enforceable internationally.17

The Abolition of Formality Requirements

As set forth in the 1908 Berne Convention, copyright is applied to a work once it is created, without the
need for any formality.18 The author is not required to register, or even to publish a work to enjoy full
copyright protection. In Berne Convention signatory countries, the law assumes that all authors claim all
rights granted to them unless they explicitly state otherwise.

Copyright laws in different countries have been revised to comply with this standard. For example,
anticipating that it would join the Berne Convention Union, the US revised its Copyright Act and abolished
formality requirements in 1976.19

16
Little, J., “History of Copyright- A Chronology,” 2002; available from http://www.musicjournal.org/01copyright.html; accessed on 28
June 2004.
17
Story, A., “Don’t Ignore Copyright, the ‘Sleeping Giant’ on the TRIPs and International Educational Agenda,” pp.132-33, in Drahos, P.
and Mayne, R. (eds.), Global Intellectual Property Rights, Knowledge, Access and Development, NY: MacMillan, 2002.
18
Lessig, L., “Free Culture,” Footnote 194; available from http://www.jus.uio.no/sisu/freeculture.lawrence.lessig/14; accessed on 29 June
2004.
19
Little, J., “History of Copyright- A Chronology”, 2002; available from http://www.musicjournal.org/01copyright.html; accessed on 28
June 2004.
 SOFTWARE AND COPYRIGHT

Extension of Copyright Law to Software

Since 1980, it has become an international trend for copyright to be applied to computer software. The
WIPO Copyright Treaty (1996) also states that computer software should be regulated by copyright law.

Copyrightability of the Source Code and the Object Code

Software can be expressed in both source code and object code. However, TRIPs states that software
copyright applies to both forms.20 In practice, proprietary software companies tend to release their
product only in object code, and keep the source code of the product as their trade secret.21

As mentioned earlier, under copyright law only the expression of ideas but not the ideas themselves can
be copyrighted. For example, with a literary work or a music composition, although the form of the work
is copyrighted, other people can use the ideas expressed in the work as inspiration for their new works.
With software, ideas can only be perceived by reading the source code. Since the source code is not
often accessible, in effect the proprietary company is able to withhold the ideas that underpin the software.
This contravenes the principle that only form and not the idea should be exclusively owned – a principle
designed to maintain the balance between private and public interests.

Users’ Rights Denied in Proprietary Licensing Models

The revision of the US copyright law in 1976 and shifts in the information technology (IT) industry in the
1970s changed the practices of software distribution. Before that, users received both source and binary
object codes. Today, under proprietary license models, proprietary software companies usually make
the source code inaccessible to ensure and maximize profit. Studying a proprietary software is usually
explicitly prohibited. For example, even in licenses for developers, for example, Microsoft End User
Agreement and Microsoft Developer Network Subscription, reverse-engineering, decompilation and
disassembly are not allowed except and only to the extent that it is expressly permitted by the applicable
law.22

For end-users, proprietary licenses usually allow only one copy of the software for each computer. That
means, if the user has one desktop and one laptop, or two desktops, she will have to purchase two
copies if she wants to run the program legally on both machines. If there are defects in the program that
she has legally purchased, her only recourse is to contact the proprietary company regarding these
defects. She will not be able to legally debug the program herself, or use unofficial patches, since
modification of the program is not allowed. In effect, users of proprietary software are completely
dependent upon the vendor.

Under the traditional proprietary licensing model, end-users were not able to protect their interest in a
cooperative manner. The FOSS movement has contributed to the positive transformation of this situation.
The Free Software Foundation (FSF), which was founded in 1985, is dedicated to promoting users’ rights
to use, study, copy, modify and/or redistribute computer programs.23 These are the rights that are not
usually granted to end-users in the licenses of proprietary software.

20
Available from http://www.wto.org/english/docs_e/legal_e/legal_e.htm#TRIPs; accessed on 28 June 2004.
21
Halligan, R. M., “How to Protect Intellectual Property Right in Computer Software;” available from http://my.execpc.com/~mhallign/
computer.html; accessed on 1 July 2004.
22
Available from http://www.msdnaa.net/EULA/NA/English.aspx; accessed on 4 August 2004.
23
Available from http://www.fsf.org/fsf/fsf.htm; accessed on 4 August 2004.

6
 HOW IS FOSS DIFFERENT FROM
PROPRIETARY SOFTWARE?

The development of FOSS may be considered a reaction of the community of software developers to
existing legal definitions of software copyright. For both free software and open source developers,
access to the source code is a prerequisite to exercise the rights bundled in copyright, such as the right
to make copies of a work, to distribute these copies, and to prepare derivative works.

Transition in IT Industry and Legal Institutions

In the 1970s, developments in legal institutions and the IT industry stimulated the formation of the free
software movement in the US. For one thing, the US copyright law went through a major revision in
1976, and the question of whether software is copyrightable was put on the table under relentless pressure
from IT companies.24 Second, while software used to be bundled with hardware in the hardware market,
the IT industry began to consider the software itself as a separate product.25 At this point, IT companies
began to recruit more developers from research institutes to develop software, and the companies asked
these individuals to sign confidentiality agreements upon recruitment.

Richard Stallman on a Stark Moral Decision

Prior to the above transition, the common practice in laboratories was to share sources and copies. For
Richard Stallman (RMS) who worked at the Massachusetts Institute of Technology (MIT) laboratory at the
time, the change undermined the community that honoured sharing and the ethic of “helping your
neighbours”. For Stallman, a talented programmer who could easily sign a contract and a confidentiality
agreement with a proprietary company in exchange for a well-paid salary, the “stark moral decision” was
between private gain for himself (and proprietary software companies) or the survival and sustainability
of the community of software developers. He chose the latter and began the Free Software movement.26

Free Software Defined

Free software is about granting users the freedom to run, copy, distribute, study, change and improve
the software. Free software is any software that provided the following freedoms. The freedom to:

Run the program, for any purpose (freedom 0).

Study how the program works, and adapt it to your needs (freedom 1). Access to the source
code is a precondition for this.

Redistribute copies so you can help your neighbour (freedom 2).

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.27

Apart from emphasizing access to the source code, the Free Software Definition also stipulates the user’s
right to copy, to distribute the copy, to modify the software, and to distribute the derivative work of a
copyrighted work. All these rights are granted exclusively to the copyright holder under copyright law.

24
Richard, J., “Copyright Protection for Computer Software in the United States,” 2002; available from http://www.ladas.com/Patents/
Computer/SoftwareAndCopyright/Softwa04.html; accessed on 28 June 2004.
25
Campbell-Kelly, M., “Development and Structure of the International Software Industry, 1950-1990;” available from http://
www.dcs.warwick.ac.uk/~mck/Personal/SoftIndy.pdf; accessed on 1 July 2004.
26
Stallman, R., 1999, “The GNU Operating System and the Free Software Movement,” pp.53-56, O’Reilly & Associates, Inc., Canada.
27
Available from http://www.fsf.org/philosophy/free-sw.html; accessed on 31 May 2003.

7
 8  Free/Open Source Software: Licensing

Creating a Free Software Environment

The GNU Project and the Free Software Foundation

It is not sufficient to stipulate the rights of users or non-copyright holders. It is also important to
have a computing environment in which these rights can be exercised. Thus, the GNU project
was launched in 1984 to develop the GNU system, a complete UNIX-style free operating system.
Today, the GNU project also includes other software applications.

In 1985, the Free Software Foundation (FSF) was established to promote the idea of free software.
It promotes the development and use of free software not only by distributing free software, but
also by encouraging the creation of a coherent system, the GNU operating system, and providing
alternative solutions to proprietary software. For more information, see www.gnu.org/gnu/
thegnuproject.html.

GNU General Public License

Under existing legal norms, once a work is created, copyright protection is granted exclusively
to the copyright holder. Without an explicit expression, it is assumed that the copyright holder
claims all the rights granted to her. The law burdens the copyright holder with explicit expression
if she wishes to relinquish some or all rights granted to her.

Some people may not want to exercise all of the rights granted to them. However, they may not
know how to make such an explicit expression. The GNU General Public License (GNU GPL) serves
as a legal tool to help people to do so.

GNU GPL is a license. Unlike proprietary licenses, it grants users the rights that the law grants
exclusively to the copyright holder. These include the right to access the source code; to run the
program; to make copies and redistribute the copies; and to modify the program and distribute
the modified program.

On the other hand, although GNU GPL grants the user many rights and freedoms to use the
software, it also sets certain limitations on those who want to distribute the program or make
and distribute derivative works to ensure that the software and its derivations will remain free.28

When a work is licensed under GNU GPL, it means that its author still claims copyright but adopts
a different license as an explicit expression to allow the public to have greater freedom to use
her work than what the copyright law allows by default.

Open Source Software

While free software advocates consider the four freedoms to be a moral issue, promoters of open source
software focus more on the technical values and are, consequently, more business-friendly.29 The Open
Source Initiative (OSI) operates as an organization to promote the open source movement by managing
and promoting the Open Source Definition (OSD) and its certification mark for open source licenses and
products.

Open Source Definition

The OSD is a revision of a policy document of the Debian GNU/Linux Distribution that served to clarify
which licenses are free licenses.30 The OSI explains the basic idea of Open Source as:

The basic idea behind open source is very simple: When programmers can read,
redistribute, and modify the source code for a piece of software, the software evolves.
People improve it, people adapt it, people fix bugs.31

The OSD echoes the rights stated in the Free Software Definition, including the users’ access to the source
28
See the Preamble of GNU GPL. Available from http://www.fsf.org/licenses/gpl.txt; accessed on 31 May 2004.
29
Wong, K. and Sayo, P., Free/Open Source Software, A General Introduction, pp. 6-7, 2004; available from http://www.iosn.net/foss/foss-
general-primer/foss_primer_current.pdf; accessed on 31 May 2004.
30
Perens, B., “The Open Source Definition,” in Open Sources, Voice From the Open Source Revolution, CA: O’Reilly & Associates, Inc., 1999.
31
Available from http://www.opensource.org/; accessed 31 May 2004.
 How is Foss Different from Proprietary Software?  9

code (Section 2), the rights of users to copy the work and distribute the copies (Section 1), and the right
to modify the work and distribute derivative works (Section 3).

The OSD also has several non-discrimination clauses (Sections 5, 6, 8, 9 and 10). Though not stated in the
same way, these non-discriminatory ideas are also found in the Free Software Definition. Section 7 of the
OSD aims to prevent the source code from being withheld by indirect means such as by requiring non-
disclosure agreements. However, the emphasis on the integrity of the author’s source code and the
requirements for the distribution of modified works (Section 4) are not explicitly stated in the Free Software
Definition. For details, see www.opensource.org/docs/definition.php.

OSI-approved Licenses
The OSI certifies and recognizes licenses as open source by following certain procedures. The certification
is made upon request, and newly approved open source licenses are added to a list of open source
licenses maintained by the OSI at www.opensource.org/licenses.

The number of OSI-approved licenses has been growing with the recent FOSS development. Some
licenses are derived from the FOSS community: the GNU GPL, the LGPL, the PHP License and the Nethack
General Public License. Those from academic/research institutes include the NASA Open Source
Agreement, the MIT License and the University of Illinois/NCSA Open Source License. Some proprietary
companies that have adopted FOSS as part of their strategies have also developed FOSS licenses including
the Apple Public License, the Eclipse Public License, the Qt Public License and the Mozilla Public License.
Actually, a large proportion of OSI-approved licenses are developed by for-profit companies.

Free or Restrictive?
Although the Free Software Definition and the Open Source Definition have much in common, they do
differ in rhetoric, which reflects their differences in philosophy.

For example, some people may describe the GNU GPL and the LGPL as “highly restrictive” because the
FSF set many restrictions to make sure that free software and their derivative works stay free. However,
for the FSF, these restrictions are prerequisites for a healthy environment for free software.

The FSF also maintains a list of free software licenses and non-free software licenses. Although the FSF
may sometimes describe these relatively simple licenses as “permissive”, it never qualifies their more
complicated ones as “restrictive”.

Though there are philosophical differences, in most cases, the FSF and the OSI agree on the classification
of FOSS and non-FOSS licenses. Twenty-six OSI-approved licenses have been analyzed by the FSF, and
only two of these, the Original Artistic License and the Reciprocal Public License, are regarded as non-
free licenses.
 HOW TO MAKE
THE SOURCE FREE/OPEN

Under current legal norms, software is protected by copyright law. Therefore, the FOSS movement has
developed many different FOSS licenses to enable software developers to easily state that they grant
their users some rights that copyright law grants exclusively to them. FOSS licenses also serve as
agreements among FOSS developer communities.

There are many FOSS licenses, and their characteristics differ. In a later section of this primer, we will
focus on three major licenses: the GNU GPL, the LGPL and the BSD License. They not only represent three
very different styles of FOSS licensing but are also the most pervasively adopted licenses.32 Table 1 helps
us to get a quick and general overview.33

The FOSS licenses listed in Table 1 have the following common features:

The source code of the original work is open.

Making copies of the original work is allowed.
Distribution of the original work is allowed. A copyright notice should be attached to all
distributions.
The license grant is non-exclusive, global, royalty-free, and for all purposes.
Warranty is disclaimed.

However, these FOSS licenses differ from each other in how these rights can be exercised. For one, although
authors are always required to provide access to the source code , whether redistributors are also required
to provide such access varies from one license to another. For example, when redistributing a BSD-ed
program, one is not required to provide the source code.

Even for licenses that require redistributors to provide the source code, there are different regulations
regarding the distribution fee the redistributors can collect. The GNU GPL and the LGPL are particularly
detailed about when one can collect a fee higher than the physical transmission fee. This is because the
GNU GPL and the LGPL offer redistributors various ways to distribute the program, with or without the
source code, while simultaneously ensuring that redistributions remain free software. An individual can
sell free software for any price she wishes, since the market would help to keep the price within a
reasonable range. But if a package is sold without the source code, the fee collected for the distribution
of the source code itself cannot exceed the cost of physical transmission.

Clauses on derivative works vary widely. Although access to the source code of original works is a
requirement, access to the source code of derivative works might not be. And even if a FOSS license
requires the source code of derivative works to be open, it may not require them to be licensed under
exactly the same license as the original work. For example, although a derivative work of a GPL-ed program
also has to be licensed under the GNU GPL, a derivative work of a BSD-ed program does not have to be
licensed under the BSD license. As a matter of fact, a derivative work of a BSD-ed program does not even
have to be distributed along with source code.

FOSS licenses also differ on the possibility of allowing a FOSS program to be combined with proprietary
programs. When combining different programs into a larger project, it is quite inevitable that the larger
project, while embracing all or part of the source code of the programs combined, becomes the derivative
work of all of the combined programs. For example, project ABC is combined with a GPL-ed program A,

32
If we look at SourceForge.net, the largest FOSS development website, we can see that the GNU GPL, the LGPL and the BSD are the
three most adopted licenses. Of the 53,026 projects that are licensed under OSI-approved licenses, 36,962 projects are licensed under
the GNU GPL, 5,817 projects are under the LGPL, and 3,813 projects are licensed under the BSD. Available from http://sourceforge.net/
softwaremap/trove_list.php?form_cat=14; accessed on 1 August 2004.
33
Open Source Software Foundry is Seeking Software Freedom, A Comparison of FOSS Licenses; available from http://
www.openfoundry.org/en/archives/000388.html; accessed on 2 August 2004.

10
 How to Make the Source Free/Open  11

Table 1
Original Work Derivative Work

Obligations of As a principle, When redistri- When redistri- Sub- Derivative Is source Should the Is documen-
Licensee/ should buted buted licensable? works should code copyright tation
License redistributions WITHOUT WITH source adopt the required notice of required
provide source code, code, can the same license to be open? the original to be
source code? can the distributor as adopted work be provided?
distributor charge a fee by the attached?
of source code higher than original work
alone charge the physical
a fee higher transfer cost?
than the
physical
transfer cost?

GNU GPL v.2 Yes No Yes No Yes, copyleft Yes Yes Yes
LGPL v.2.1 Yes No Yes No Work based on the library
Yes, copyleft Yes Yes Yes
Executable that links a “work that uses the Library” with the library
No No Yes Yes
BSD License No Yes Yes No No No Yes No
Artistic License Yes (Source code No No No No No Yes
is always
redistributed)
MIT License No Yes Yes Yes No No Yes No
Apache No Yes Yes No No No Yes No
License v.1.1
Apache No Yes Yes No No No Yes No
License v.2.0
Mozilla Public Yes (Source Yes Yes Yes, the Yes Yes Yes
License v.1.1 code is additional rights
always described in
redistributed) MPL may be
included in an
additional
document
Zlib/libpng No Yes Yes No No No No Yes
License
QPL Yes No Yes No QPL requires all modifications must exist in a form separable from
the original work, e.g. a Patch (does not allow peole toQt Public
modify the original work directly) and regulates the patches with
clauses that are similar to the clauses other licesenses regulate the
drivative works.
No Yes Yes No

Common Public Yes No Yes Yes No Yes Yes No

License v.1
Academic Free No Yes Yes Yes No No Yes Yes
License v. 2.1
PHP License No Yes Yes No No No Yes No
v. 3.0
Open Software No Yes Yes Yes Yes Yes Yes Yes
License v. 2.1
Zope Public No Yes Yes No No No Yes Yes
License v. 2.0
Python Software No Yes Yes No No No Yes Yes
Foundation
License v. 2.1.1
 12  Free/Open Source Software: Licensing

a BSD program B and a proprietary program C, and has source code from all three programs. As a derivative
work of program B, project ABC need not be licensed under the BSD License or even required to open its
source. However, as a derivative work of program A, project ABC is required to be licensed under the
GNU GPL.

Thus, the developer will have no choice but to license the whole project ABC under the GNU GPL, or find
an alternative to program A, especially if she wishes to make it a proprietary software project.

This is why the GNU GPL is considered by proprietary companies to have the so-called “viral” effect, and
it is regarded as unfriendly to the proprietary software development model. But the GNU GPL is designed
to serve the interests of the free software community rather than the proprietary business sector. The
FSF has also designed the LGPL to encourage greater use of free libraries even in proprietary software
projects.

The three typical FOSS licenses – the GNU GPL, the LGPL and the BSD – are explained further below.

GNU General Public License

The GNU GPL is the classic free software license. It is also the most well-known and the most widely
adopted among all FOSS licenses. The GNU GPL was developed to fulfil the freedoms defined by the Free
Software Movement. It is not just a license, but is also an expression of the basic ideas behind the
movement

Copyleft
The idea
The way the GNU GPL guarantees freedom is also called “copyleft”. While the traditional proprietary
model says “copyright, all rights reserved”, the GNU GPL says “copyleft, all rights reversed”. Copyleft is
not just about making the original work free when the copyright holder releases it, but also about keeping
it free when it is being further distributed and modified. Although there is no limitation when derivative
works are created only for internal use, when they are being distributed to the public, coplyleft is applied
to make sure that derivative works are as free as the original work.

How it works
Copyleft prevents free software from being turned into proprietary software. It uses copyright law to
achieve the exact opposite of its usual purpose. Instead of being the means of privatizing software, in
copyleft licenses the rights granted to authors are reversed to keep the software free.34

Unlike works in the public domain that everyone is free to exploit, a GPL-ed work or a copyleft-ed work
is copyrighted. The author of the GPL-ed work does not give up her rights as a copyright holder, but
exercises these rights in a way different from a traditional copyright holder.

If authors who want to make their software free simply disclaim their rights as copyright holders and
release their work into the public domain, it will expose the work to the danger of being privatized and
closed again. Instead, to keep their works and their derivates free, authors must claim their rights, and
with the exclusive rights granted to them, they include the copyleft clause so as to regulate the ways
other people can make use of their work. By licensing their work under the GNU GPL, authors are allowing
users to have the rights stipulated by the Free Software Movement.

Also by licensing under the GNU GPL, authors require people who wish to distribute the program and
developers who wish to modify the work and distribute the modified works, to take on some responsibility
in keeping derivatives as free as the original work.

Major Terms and Conditions of GNU GPL

User’s freedoms
When a program is licensed under the GNU GPL, besides the freedom to access the source code, users
are also free to:

Run the program (Section 0).

34
Stallman, R., “The GNU Operating System and the Free Software Movement,” p.59.
 How to Make the Source Free/Open  13

Make copies of the program (Section 1).

Redistribute the program, even for commercial purposes, provided an appropriate copyright notice
and disclaimer of warranty are retained (Section 1). Redistribution in the object code or executable
form is also possible, so long as the source code is available for all recipients (Section 3).

Prepare and distribute derivative works of the program, provided the derivative works are also
licensed to all third parties under the GNU GPL (Section 2).

No warranty
Though the distribution of the work can be commercial, the work itself is licensed free of charge. Therefore,
there is no warranty for GPL-ed software (Sections 11, 12). The distributor could choose to offer warranty
protection in exchange for a fee (Section 1).

License issued directly from the author

The work is not sub-licensable. When a program is redistributed, recipients still receive the license from
the original licensor. Redistributors may not impose any further restrictions on recipients’ exercise of the
rights granted in the GNU GPL (Section 6).

Acceptance and termination

By the act of modifying or distributing the GPL-ed program, a person indicates his acceptance of the
license (Section 5). The license grant is irrevocable but when the licensee violates the license, the rights
granted will be terminated automatically. However, the rights of those who received the copy of the
program from her will not be affected (since they received the license from the original licensor) so long
as they remain in full compliance with the license (Section 4).

Co-exist with other legal obligations?

The GNU GPL does not concede to any contradictory conditions that are imposed on the recipients. If
compliance with the license is not possible as a consequence of a court judgment, allegation of patent
infringement or any other reason, then the recipient may not redistribute the program at all (Section 7).
A GPL-ed program cannot be incorporated into a proprietary program, or linked with a proprietary library.

The full GNU GPL text can be found at http://www.fsf.org/licenses/gpl.txt

The FSF also maintains a thorough FAQ on the GNU GPL which can be accessed at www.gnu.org/licenses/
gpl-faq.html

GNU Lesser General Public License

Apart from the GNU GPL, the FSF offers a special copyleft license for libraries. The GNU Lesser General
Public License (LGPL) permits LGPL-ed libraries to be linked with proprietary software.

This exception is to serve different situations. It can be a strategic decision to encourage the development
of proprietary applications on the GNU system.35 For a free library whose features may be largely replaced
by other proprietary libraries, releasing it under the LGPL rather than the GNU GPL can encourage its
wider use,36 and thus make possible more improvements on it. With a larger body of free software users,
there would also be wider support for free software in general.37

However, the FSF still encourages people to use the GNU GPL for their libraries rather than the LGPL,
especially for those libraries that have a significant number of unique capabilities. This is because people
who are interested in utilizing such GPL-ed libraries will have to release their modules as GPL-ed software
too, resulting in more useful modules and programs available in the free software environment.38

35
Stallman, R., “The GNU Operating System and the Free Software Movement,” p.63.
36
Stallman, R., “Why you shouldn’t use the Library GPL for Your Next Library,” Feb 1999; available from http://www.fsf.org/licensing/
licenses/why-not-lgpl.html; accessed on 29 May 2004.
37
Preamble, the “GNU Lesser General Public License;” available from http://www.fsf.org/licenses/lgpl.txt;
38
Stallman, R., “Why You Shouldn’t Use the Lesser GPL for Your Next Library;” Feb 1999; available from http://www.fsf.org/licenses/
why-not-lgpl.html; accessed on 29 May 2004.
 14  Free/Open Source Software: Licensing

Major Terms and Conditions of LGPL

The LGPL is identical to the GNU GPL in many ways, including clauses that disclaim warranty, declare that
the license is issued directly from the author, and specify when the license is applied and terminated.
Also, other legal obligations applied upon users are the same as those for the GNU GPL.

On users’ rights, the LGPL distinguishes two different kinds of situations when one uses a library. A “work
based on the Library” means either the Library itself or any derivative work under copyright law (Section
0), while a “work that uses the Library” means a program that contains no derivative of any portion of the
Library but is designed to work with the Library by being compiled or linked with it (Section 5).

Works Based on the Library

In the case of a “work that uses the Library”, i.e., the Library itself and its derivative works, the terms are
very similar to those in the GNU GPL.

User’s Freedoms

Run the program (Section 0).

Make copies of the program (Section 1).

Redistribute the program, even for commercial purposes, provided an appropriate copyright
notice and disclaimer of warranty are retained (Section 1). Redistribution in the object code or
executable form is also possible, so long as the source code is available for all recipients (Section
4).

Prepare and distribute derivative works of the program, provided the derivative works are also
licensed to all third parties under the LGPL (Section 2c).

In addition, one may opt to apply the terms of the GNU GPL instead of the LGPL to a given copy
of the LGPL-ed library, especially when one is incorporating part of the code into a program that
is not a library (Section 3).

Works that use the Library

In the case of a “work that uses the Library,” the work itself is NOT subject to the LGPL. But when linking
the “work that uses the Library” with the Library, an executable version that is a derivative work of the
Library would be created, and such a version is covered by the LGPL (Section 5).

Although the LGPL allows authors to distribute the object code of executables (Section 5) and license
these under terms of their choice, it is also required that those terms permit modification of the work for
the customer’s own use and reverse engineering. When distributing executables, the author has a choice
either to distribute the Library together, provided the source code of the Library is made available in
those ways similar to the distribution of GPL-ed programs, or not to distribute the Library together but
only use a suitable shared library mechanism to link with the Library (Section 6).

By creating this category, the LGPL provides a way for LGPL-ed libraries to be used in proprietary programs.
The full LGPL text can be found at www.fsf.org/licenses/lgpl.txt.

BSD Style Licenses

The Berkeley Software Distribution (BSD) License was first used for the Berkeley Software Distribution, a
version of Unix developed in the University of California at Berkeley.39 It is easy to follow the BSD License
template to create one’s own license by changing the values of owner, organization and year, which
appear in the copyright notice and the license. Unlike the GNU GPL and the LGPL, BSD style licenses are
not copyleft licenses. A BSD License allows people to freely distribute and modify the original work, but
it does not require that the modified works be as free as the original work. BSD style licenses are relatively
simple and have only limited restrictions on the use of the software.

39
“MIT License Definition”, June 2004; available from http://www.bellevuelinux.org/mitlicense.html; accessed on 1 July 2004.
 How to Make the Source Free/Open  15

User’s Freedoms

Make copies and redistribute the program, with either its source code or its binary code. The
distributor is not obliged to provide the source code.

Prepare derivative works and distribute them, either with their source code or binary code. The
author is free to choose either FOSS or proprietary licenses for derivative works.

Incorporate the program into proprietary software.

The original BSD License (four-clause BSD) has an advertising clause. The revised BSD License (three-
clause BSD) is very similar to the MIT License, but the latter does not have the “no endorsement for
derivative works” clause. There is also the two-clause BSD, which has taken away the endorsement clause
and is most similar to the MIT License.40

Multiple Licensing
It is important to note that a work can be licensed under more than one license. The choice of license
reflects the type of relationship that the author wishes to have with the user of the copyrighted work.
Since there can be more than one kind of user, and more than one possible relationship, the copyright
holder is entitled to choose different kinds of licenses for different situations.

Take OpenOffice as an example. OpenOffice is dual-licensed under the GNU GPL and the Sun Industrial
Standards Source License (SISSL). Although OpenOffice states clearly that users are encouraged to use
the GNU GPL to participate fully in the OpenOffice community, SISSL is provided as an alternative for
developers and companies who are not able to use the GNU GPL.41 ,42 MySQL is another example. MySQL
offers both the GNU GPL and a commercial license. Organizations that do not want to release their
applications under the GNU GPL can choose to use MySQL under the MySQL Commercial License.43

What about Documentation?

GNU Free Documentation License (GNU FDL)

Good documentation and manuals are extremely important for FOSS programs. When they are not
licensed as free/open, it is difficult for people to make complete use of relevant FOSS programs.

Although the GNU GPL is a license designed mainly for software, it can also be used for works that are not
software, so long as it is defined clearly what the “source code” is when adopting the license.44 The FSF
also provides a license that is specially designed for documentation. The GNU Free Documentation License
(GNU FDL or FDL) is a form of copyleft license for manuals, textbooks or other documents that grants
everyone the freedom to copy and redistribute the documents, with or without modifications, either
commercially or non-commercially.45

By applying GNU FDL to a document, the author grants users the right to make verbatim copies of the
work, to modify the work and to distribute modified works. Since it is a copyleft license, it requires the
copy and the distribution of modification of the FDL-ed work is also licensed under the FDL.

40
“WikiReader, Free Software and Free Content,” June 2005; available from http://upload.wikimedia.org/wikipedia/en/a/a9/
WikiReader_Free_Software_and_Free_Contents.pdf; accessed on 8 July 2004.
41
“Licenses,” August 2002; available from http://www.openoffice.org; accessed on 28 June 2004.
42
One is entitled to choose the license only for the code that belongs to him. In cases involving collaboration among different
individuals or entities, all of the co-contributors have to agree on which licenses to choose for the work as a whole. This can be done
either by an agreement among all co-contributors or, as in the OpenOffice case, participants in the project are required to sign a Joint
Copyright Assignment with Sun Microsystem.
43
“MySQL Licensing Policy;” available from http://www.mysql.com/company/legal/licensing/; accessed on 10 November 2004.
44
Available from http://www.gnu.org/licenses/fdl.html; accessed on 4 August 2004.
45
Available from http://www.gnu.org/licenses/licenses.html#TOCFDL; accessed on 4 August 2004.
 16  Free/Open Source Software: Licensing

Table 2
Attribution Allow Allow Derivative works
required commercial derivative should be
uses works licensed under
the same license
as the original
work is
CC BY Yes Yes Yes No
CC BY-NC Yes No Yes No
CC BY-NC-ND Yes No No
CC BY-NC-SA Yes No Yes Yes
CC BY-ND Yes Yes No
CC By-SA Yes Yes Yes Yes
CC NC* No No Yes No
CC NC-ND* No No No
CC NC-SA* No No Yes Yes
CC ND* No Yes No No
CC SA* No Yes Yes Yes
GNU FDL Yes Yes Yes Yes

BY: Attribution. For any reuse and distribution, it is required that credit is given to the original author.
NC: Non Commercial. The work cannot be used for commercial purposes.
ND: No Derivative Works. The work cannot be altered or transformed; derivative works built upon the work are not permitted.
SA: Share Alike. It is allowed to alter and transform the work, and to prepare derivative works upon the work, so long as the resulting work is
licensed under a license identical to this.
* Starting in 2004, Creative Commons made the “attribution” requirement the default in the second version. Thus only the first six CC licenses
above remain in the second version.

Creative Commons Licenses

Inspired by the FOSS development, the Creative Commons advocates for openness of digital content
and is urging for a more reasonable and flexible layer of copyright in the face of increasingly restrictive
default rules.46

In 2002, the first versions of Creative Commons Public Licenses (CC licenses) were released. By identifying
major concerns of authors – i.e., whether attribution is required (attribution, BY), whether users are allowed
to make commercial uses of the work (non-commercial, NC), whether users are allowed to make derivative
works (no derivative works, ND), and when derivative works are allowed, whether they are required to be
licensed under exactly the same license as the original work (share alike, SA) – Creative Commons
developed a set of 11 different CC licenses. Each represents a unique combination of the above four
conditions. Authors are free to choose among the 11 licenses and decide which best suits their needs
and works.

In 2004 Creative Commons released the second version of CC licenses. Since the requirement of attribution
has been widely adopted by users of CC licenses, the attribution requirement has become default, and
thus there are only six CC licenses in the second version. However, the 11 licenses in the first version are
not superceded and are still available (Table 2).47

CC licenses are designed for all kinds of digital content except for software, including art works,
photographs, music and literary texts. CC licenses do not deal with the FOSS issue, since ideas in the
works referred to are transparent and are not compiled into forms that cannot be perceived. Some CC
licenses do not allow modification and might not be regarded as “free”. However, CC licenses are successful
in spreading the idea of freedom and openness to the greater public, which might not be familiar with
recent software developments fostered by FOSS movements.

46
Creative Commons, “Some Rights Reserved, Building a Layer of Reasonable Copyright;” available from http://creativecommons.org/
learn/aboutus/; accessed on 4 August 2004.
47
Creative Commons Public Licenses are available at http://creativecommons.org/licenses/.
 SCENARIOS

Different stakeholders will have different uses for FOSS. A developer might use a program more intensively
than an end-user, which means that the developer’s activities might be subject to more restrictions than
an end-user. The following section tries to provide some scenarios as examples to explain the different
legal issues that may arise for different stakeholders.

End-user (Individual/Business/Government)
Abul is a public high school teacher. His school cannot afford expensive license fees for
proprietary office applications. Although proprietary software companies offer special rates
for schools, Abul wanted to find an alternative solution to reduce students’ dependence on
proprietary software. His friend, Nazlee, a programmer who has participated in FOSS
projects, introduced him to a FOSS office application. Abul and his colleagues then
downloaded FOSS office solutions and taught students both proprietary and FOSS
applications. He is satisfied with the performance and introduced Nazlee’s program to his
colleagues. Gradually, the school administrative body began to use the FOSS solution for
administrative work.

In this case, neither Abul (an individual) nor his school (a public government body) made any modification
to the software that they downloaded from the Web. They were simply end-users.

The situation for end-users is relatively simple. The end-user of a software program may be an individual,
a government body, or a business entity. These individual persons or legal entities may have different
reasons to use FOSS. Some may be trying to find a cheaper solution or a solution that suits their needs
better; others may wish to use FOSS for better customization; still others may wish to reduce their
dependence on proprietary companies.

Legal issues involved

The way end-users use FOSS solutions might not be very different from the way they use proprietary
solutions. They download a copy of a FOSS solution or purchase a copy (usually in exchange for
some support and services), install it in the computer (thus making a copy on the hard disk), run the
program, and have its functions serve their needs. The rights that are of concern here are the right to
make copies of the program and to run it. (The act of running a program may also count as an act of
making copy, but it is stated differently in some FOSS licenses. For example, the GNU GPL has no
restrictions on the running of the GPL-ed program but does regulate the act of making a copy.)
These rights are granted by all FOSS licenses. Thus there are fewer legal disputes involving end-
users. However, end-users do need to consider some issues.
Issue 1: Technical Support
Since an end-user might not be a computer whiz, she might have concerns regarding technical
support when choosing a FOSS solution. Thus, instead of simply downloading a copy of the
FOSS solution for free, she might choose to purchase a box of FOSS in a shop where a proprietary
solution is also available, sometimes at approximately the same price. The difference is that when
purchasing, let’s say, a commercial Linux distribution in the store, the end-user is not paying for
the license fee, but for the service and support. When the term of service expires, the end-user
can choose to pay for another term of service, or ask other available providers for similar services.

Issue 2: Customization
When existing FOSS solutions do not fit their needs, end-users might need to ask individual
developers or vendors to customize the solutions. In such cases, since end-users may not be
technically savvy enough to detect possible infringements, they may wish to have a written
clause in the contract ensuring that the vendor or developer will take on the entire responsibility
for any possible copyright infringement, and will compensate for any possible losses that may

17
 18  Free/Open Source Software: Licensing

be caused by allegations of infringement. The buyer is free to add these clauses to the contract
when negotiating with the vendor or developer.

Issue 3: Government Procurement

Since FOSS licenses are different from traditional software licenses, governments should be
particularly aware of the differences when they open a bid for software solutions or sign a
contract with vendors. Existing government bid and contract templates may have been drafted
under the traditional proprietory model of traditional copyright law, and have to be examined,
or revised, if they fail to treat FOSS and proprietary software equally.

Developer (Individual, Business)

Developers (individuals and business entities) need to be more careful with the terms and conditions of
different licenses while using FOSS. Developers usually not only run and copy the software, but also
create derivative works from the software, and distribute these derivative works together with the original
program. Therefore, for developers to contribute to the development of a certain FOSS program, it is
essential to have the rights to run the program, to make copies, to distribute the program and to prepare
derivative works.

These rights are granted by all FOSS licenses, for these essential rights are considered important both in
the Free Software Definition and the Open Source Definition. Nevertheless, different FOSS licenses may
have different restrictions on exercising these rights, especially on creating and distributing derivative
works. Developers should pay particular attention to this, and consult their lawyers on their specific
situation when needed.

There are different considerations when a developer participates in different stages of software
development.

When Starting a New Project

Abul’s colleague Jolly is the school librarian. The school library is not that large, but it is
open to villagers. Jolly sought her friend’s help to write a program that would enable her to
keep an accurate record of the books in the library.

Legal issues involved — choosing a license of one’s own

Developers: What does this project mean to me and to others? How do I want others to be involved?
What do FOSS licenses say? What are the differences between FOSS licenses?

The situation is relatively simple if the developer is starting a new project without using any existing
modules, since she will not have to look through the licenses of existing modules that she might
have used.

However, starting a new project is not an easy task either. The different characteristics of the FOSS
license she chooses will have a significant influence on the possible development path of the project.
The developer should define her main concerns before choosing a license.

For example, if the developer is a supporter of copyleft, she may stick with the GNU GPL or the LGPL.
If the developer thinks she doesn’t need to require people to license their modified works under
FOSS licenses, a BSD-style license would be appropriate. Or when the developer thinks it is better to
control the development in a firm and central line, she might not be interested in BSD style licenses.
But if forking is preferred in the future development, BSD style licenses may be a better choice.

Developer: Can I change my mind after licensing my project?

The copyright holder of a project can always decide to choose another license for the program, even
when the previous versions have already been licensed under certain FOSS licenses. This will not
affect the rights of the recipients of the previous versions since license grants are irrevocable. The
situation will be more complicated if contributions from the community have been incorporated
into the newer version, which means that these other contributors may claim copyright to certain
pieces of the code in the newer version. In this case, unless there is prior agreement, the license must
be chosen by all contributors.
 Scenarios  19

Developer: I don’t like any of the existing FOSS licenses. Can I start a new one?

Though there are already many FOSS licenses, it is possible that a developer will find that she does
not like any of the available licenses. As long as the developer owns the code, she is entitled to choose
any license for the project, including a new one that she drafts by herself. However, creating a new
FOSS license requires legal knowledge and skill to avoid vagueness and loopholes. Also, there are
already many FOSS licenses and the transaction cost for understanding these licenses is high. Creating
a new license is not recommended unless a developer has strong reasons to do so.

When Modifying an Existing Module

The office application Abul and his school are using has an English interface. It does not
support the local language. Using an English interface might not pose a problem for high
school students. However, it is difficult when Abul tried to teach villagers. He consulted
Nazlee about the problem. Nazlee has constantly contributed to FOSS programs and is also
quite familiar with the source code of the office application. She discussed this with a few
friends and, as a team, they began to localize the application.

Legal issues involved: Ascertain the license of the program to be modified

When a developer tries to modify an existing module, and when the modification is not solely for her
own use but for further distribution (e.g., localizing a project), she needs to first identify the license of the
module.

Developers: Under the license, what are the rights I am granted and what are the restrictions in
exercising those rights?

For example, on the distribution of a FOSS work, some FOSS licenses (e.g., the GNU GPL, the LGPL)
may require distributors to provide both object code and source code, or at least provide the
information on how to access the source code. On modifying a FOSS work, some FOSS licenses (e.g.,
GNU GPL, LGPL, BSD) may require the modifier to provide documentation of the changes being made.
On distributing the derivative work, copyleft licenses require derivative works to be licensed under
the same license as the original work, while other FOSS licenses allow the modifier to choose a different
license (BSD, MIT).

If Nazlee and her friends are trying to localize the dual-licensed OpenOffice, and they decide to use
the one under the GNU GPL, then the localized OpenOffice would also be GPL-ed.

Some FOSS licenses (e.g., the MIT License) may allow users to sublicense the original work. This means
that when distributing the verbatim copy of the original work, within the scope granted by the original
copyright holder, the distributor may choose a different license and become a licensor him/herself. In
such cases, when a developer creates a derivative work and distributes it together with the original
work, he/she can choose to become a licensor of both the original work and the derivative work,
which simplifies the legal relations to one that exists only between the two parties. If a sublicense is
not allowed, people who receive the modified work would have two licensors for this piece of work.
The licensor of the original work will be the author of the original work, while the licensor of the
derivative work will be the developer who prepared the derivative work.

When Integrating Different FOSS Modules into One Service

Nazlee works in AA Software Inc. To better oversee the many different projects that the
company is developing, the team built a project management system by integrating
different FOSS modules. The management system is only for internal use now, but since it is
pretty handy, the company also plans to distribute it commercially in the future.

FOSS licenses do not impose restrictions on modifications that are made for internal use. But when a
public distribution is created based on these modifications, the developer must consider all the licenses
of the modules being used.
20  Free/Open Source Software: Licensing

Legal issues involved: Identify the licenses of the programs being integrated, and see if these
licenses are compatible.

When integrating several different modules, the developer may end up modifying these modules.
Therefore, it is essential to ascertain the licenses of each module. If they happen to be licensed under the
same license, such as the GNU GPL, then the integrated system would be licensed under the GNU GPL.
The situation is similar when all modules are licensed under the BSD License. But in this case, AA would
be able to choose another FOSS license or a proprietary license for the modified modules and the
integrated system.

However, if some of the modules have different licenses, then AA will have to look at the compatibility of
these licenses. When two licenses are compatible, the two modules licensed under the two licenses can
be combined into a larger work while complying with both licenses.48

When combining a GPL-ed program and BSD-ed (GPL-compatible) into a larger program, the larger
program will have to be GPL-ed to meet both the requirement of the GPL-ed program and BSD-ed
program. When some of the modules are GPL-ed but other modules are GPL-incompatible. In this case,
AA must decide which module is more important for them and replace the other one with a module
with a compatible license.49

The licenses used in different modules and the way they are combined together would determine how
the integrated system can be licensed and distributed.

Other considerations – choice of law and choice of venue clauses

Finally, for those who are able to choose licenses for their programs, either because they started their
own programs or they are allowed to choose licenses for the derivative works they prepared, they should
be aware that many OSI-approved licenses are developed by proprietary software companies. Some are
designed to meet their company policy and strategy, and thus might not be a good choice for developers
in general. Some technical issues, such as clauses on choice of law and of venue (which could be found
in the Qt Public License, the Mozilla Public License, the Common Public License, etc.), may become
significant when a lawsuit is brought up.

Vendor/Producer (Business)
Nazlee and her friends have made the localized version of the FOSS office version available.
AA Software Inc. is interested in this application. They have also developed some other small
but useful programs for administrative work. They package the localized office together
with their own programs (licensed under their proprietary license). The package is a big hit.
A few months later, AA also decides to commercially distribute the project management
system that they had integrated from different FOSS modules.

Mere distribution
In this situation, both FOSS and proprietary programs are distributed in one package. For the FOSS
application, AA is merely a distributor, and must distribute it as its FOSS license requires. For proprietary
programs, AA holds the copyright and is able to choose the license and ways of distribution. It is all right
to put FOSS and proprietary applications into one distribution package, such as one CD-ROM, if the
applications function separately and do not link together to create any derivative work.

Distribution of integrated systems

In the case of an integrated system distribution, what is key are the licenses of the different integrated
modules and the ways in which the modules are combined. As explained earlier, AA needs to first make
sure that the licenses of the different modules allow AA to combine them. These licenses will also
determine the ways by which AA can distribute the integrated system.

Other considerations – drivers and certifications

48
“What does it mean to say that two licenses are compatible?;” available from http://www.gnu.org/licenses/gpl-
faq.html#WhatIsCompatible; accessed on 7 July 2004; “FAQ on Open Source Licenses;” available from http://www.openfoundry.org/en/
archives/FAQonOSL.pdf; accessed on 7 July 2004
49
“Various License and Comments About Them;” available from http://www.fsf.org/licensing/licenses/
index_html#GPLCompatibleLicenses; accessed on 7 July 2004. The FSF provides a list of GPL-compatible and GPL-compatible FOSS
licenses.
 Scenarios  21

One difficulty that FOSS vendors might encounter is that hardware vendors may not be aware of FOSS
software and thus fail to provide drivers that will enable FOSS applications to work on the hardware. It is
important to promote the idea of FOSS among hardware vendors. This will be easier when there is a
larger group of FOSS users.

Likewise, certification is sometimes needed for FOSS to work properly with specific proprietary software.
A larger FOSS user group will encourage proprietary software companies to certify FOSS applications
that might be used together with their programs.

Other considerations – FOSS used in embedded systems or devices

FOSS is also used in embedded systems in electronic devices, such as cell phones, hand-held devices,
digital cameras and DVD players. The use of FOSS may help device manufactures to lower their cost
when developing new products. The distribution of the device is different from the distribution of the
FOSS itself. With regard to the latter, the rules of specific licenses still apply.

Government-sponsored Projects
FOSS movements and rapid FOSS developments have received attention not just from the FOSS
community, but also from academics and policy-makers. In some Asian countries, governments work
with PC manufactures/vendors to provide affordable PCs bundled with FOSS operating systems and
office applications.50 Governments also support FOSS development, generate FOSS-related projects and
promote FOSS as a national technology and industrial policy.51 But long before governments began to
notice the potential of FOSS and developed a clear position on it, some government-affiliated academic
institutes have already been working on FOSS-related projects.

The FSF-maintained FAQs about the GNU GPL also list questions about whether the United States
Government could release a program under the GNU GPL or release improvements to a GPL-ed program.52
Situations may differ from country to country and from case to case under different government
regulations in different countries. Most government regulations on government-sponsored projects are
usually drafted under their domestic copyright and patent law and might be informed by a more
protectionist mentality and thus be unfamiliar, or even unfriendly, to FOSS licensing and development
models.

Below are two cases of government-funded FOSS studies. The first one is about FOSS-related studies
made in a government research institute without related government policy, while the second one is
about a national FOSS project.

Government-funded FOSS Projects: Cases from the Asia-Pacific

A FOSS Project under a Government-affiliated Research Institute: Multi-Lingual Editor,

Japan
Emacs is a multilingual text editor first developed by Richard Stallman at MIT. After the GNU project
started in 1984, the development of GNU Emacs was started and it was first released in 1985, under the
GNU GPL.

The Japanese governmental research institute, Eletrotechnical Laboratory (ETL),53 began to work on the
multilingual information processing and integration of GNU Emacs and Mule (multilingual text editor
based on Emacs and later merged into GNU Emacs as MULE) in the mid-1990s, but there were various
copyright issues.

ETL was a government research institute, and the licensing model in the GNU GPL is very different from
Japanese copyright law, so no one was able to decide whether ETL could assign the code to the FSF and

50
“Malaysian ‘People’s PC’- Microsoft experience “Thailand Linux” pain all over again,” Mar 2004; available from http://www.asiaosc.org/
article_191.html; accessed on 7 July 2004. See also Koanantakool, T., “A Case for Nation-wide PC Distribution,” November 2003;
available from http://www.asia-oss.org/; accessed on 7 July 2004.
51
Related links available at uwstudent.org/wiki/OpenSourceInGovernment; accessed on 8 July 2004. Also available from http://
www.asiaosc.org/enwiki/page/Ideas_for_OSS_policy.html; accessed on 8 July 2004.
52
Available from http://www.fsf.org/licensing/licenses/gpl-faq.html#GPLUSGov and http://www.fsf.org/licensing/licenses/gpl-
faq.html#GPLUSGovAdd; accessed on 10 July 2004.
53
Handa, K., “Development of Multi-Lingual Editor,” 2003; available from http://www.asia-oss.org/nov2003/present/handa/handa.html;
accessed on 10 July 2004.
 22  Free/Open Source Software: Licensing

release the code under the GNU GPL. As a result, ETL never officially released the code but released the
trial versions instead. More negotiations between ETL and FSF took place later, and resulted in a special
agreement. The FSF agreed not to require ETL to assign the copyright of the modified code to the FSF,
and ETL agreed to grant FSF the right to use the code. This was the first time that part of the code in
Emacs did not belong to the FSF.

In 2001, ETL was reorganized into the National Institute of Advanced Industrial Science and Technology
(AIST). Although AIST is still a government-funded institute, it is an independent organization and its
assets are not national property. It seemed that AIST would be able to release the code under the GNU
GPL officially. But, initially, it was still very difficult for the higher levels of AIST to make a final decision. It
took them another year of internal negotiation to decide that AIST was entitled to release their works
and choose the licenses of their works. It was also not easy to convince people about the advantage of
adopting the GNU GPL. According to Dr Kenichi Handa, a senior researcher in AIST, it was never clear
what convinced the AIST management to make the final decision.

This happened before the Japanese Government had formed a clear position on FOSS development.
During an open source conference among Asian countries in 2003 where Dr Handa was invited to give a
talk on the development of Emacs, Shuichi Tashiro, the leader of the Japanese FOSS project under the
Ministry of Economic, Trade and Industry, said that the Japanese Government has made necessary
regulatory revisions to give developers of government-funded projects the copyright (and thus the right
to choose the license) so long as the law was applicable from the beginning of the project.

In this case, we can see that when the government is not familiar with the FOSS licensing and developing
model, related government regulations may create unnecessary difficulties for government-affiliated
research institutes seeking to participate fully in FOSS development. It took AIST, formerly ETL, years to
finally be able to officially release the code under the GNU GPL. Even though now there is a special
regulation to facilitate the use of FOSS licenses for government-funded open source projects, as they are
still considered exceptions.

A National FOSS Project: Free Software Industrial Development Project, Taiwan

Under pressure from Congress, the Taiwanese Government began the planning of a national FOSS project
in 2002, and in 2003 a significant budget had been allocated to a five-year FOSS project. The Ministry of
Economics Affairs (MoEA) was assigned to structure, sponsor and oversee all of the sub-projects.

Under general government regulations administered by the National Science Council (NSC), although
the results can be copyrighted by the entity which carries out government-funded projects, applications
of such results are still subject to certain regulatory principles. Unless it would be more beneficial for the
national development of science and technology, the results have to be:

Licensed for a fee.

Licensed to Taiwanese institutes or firms.

Used or manufactured within Taiwanese jurisdiction.

Though exceptions might be made for FOSS projects, the law had not been officially interpreted in this
way, and no one wanted to risk violating the regulation.

In addition, the national FOSS project was assigned to the MoEA, which has the more important task of
protecting national interest and economic competitiveness. Thus their regulations are more protectionist/
restrictive than the general rule. These restrictive regulations were applied to the national FOSS project.
Under MoEA regulations, only the third principle (used and manufactured within Taiwanese jurisdiction)
can be exempted. This meant that the outputs of the national FOSS project had to be licensed for a fee,
and it can be licensed only to Taiwanese institutes or firms. Such principles are inconsistent with the
FOSS licensing model, making it difficult for all sub-projects under the national FOSS project to release
their code.

This issue was raised as soon as the five-year FOSS project started. Different government bodies met
several times to find a solution. Because the FOSS licensing model was so alien to the models they were
used to, the problem was not solved until mid-way into the second year (2004) and the code developed
in the first year was not officially released in time.

This was particularly problematic since one of the sub-projects under the national FOSS project was
 Scenarios  23

integrating an existing FOSS program. At the same time, the sub-project intended to participate in and
contribute to this particular FOSS project. When the community was about to incorporate all of the
recent developments and release its newer version under the GNU GPL in March 2004, they found it
difficult to incorporate the code developed under the government-funded sub-project in Taiwan.

It was not until after a negotiation held in May 2004 that different government bodies finally came out
with a solution. The MoEA submitted the case to the Administrative Yuan (highest administration body)
to obtain an official interpretation from the Government regarding whether FOSS projects meet the
exception clause and are thus exempt from the principles. Meanwhile, the MoEA began to look into the
possibility of revising its restrictive regulations.

The official interpretation was finally made by the Administrative Yuan in July 2004, 18 months after the
official launch of the national FOSS project. Under the new interpretation, government-funded FOSS
projects met the exception clause of the general NSC rule and can be exempted from the principles that
conflict with FOSS licenses. Although the MoEA regulation has not yet been modified, some code-
generating FOSS projects are assigned to NSC and the general NSC rule, rather than the more restrictive
MoEA rules . It is hoped that FOSS projects will be able to release the code under FOSS licenses thereafter.

This case shows that while the government has started to recognize the importance of FOSS development,
its regulatory and administrative structure might not be ready to accommodate FOSS. In the case of the
Taiwan National FOSS Project, with the combined efforts of related government and project personnel,
the problem was finally solved to a certain extent. But it had already caused some serious problems,
especially in collaborating with international and local FOSS communities. As many countries now also
recognize the importance of FOSS development, and are starting or planning to start their governmental
FOSS projects, it is critical that the related legal structures are examined and updated to facilitate FOSS
development.
 ONLINE LEGAL RESOURCES
AND MATERIALS

Free Software Foundation, http://fsf.org

Open Source Initiative, http://opensource.org
Open Source License Law Resource Center, http://www.denniskennedy.com/resources/
technology-law-central/opensourcelaw.aspx
Open Source Licensing, http://www.anu.edu.au/people/Roger.Clarke/EC/OSLic.html
WikiReader, Free Software and Free Content, http://en.wikipedia.org/upload/a/a9/
WikiReader_Free_Software_and_Free_Contents.pdf
Groklaw, http://www.groklaw.net/index.php
FLOSS Concept Booklet, http://www.sarai.net/floss_book.pdf
Frequently Asked Questions about GNU GPL, http://www.gnu.org/licenses/gpl-faq.html
Quiz to Test Your Knowledge of the GPL and LGPL, http://www.gnu.org/cgi-bin/license-
quiz.cgi
Apache License and Distribution FAQ, http://www.apache.org/foundation/licence-FAQ.html
Mozilla Relicensing FAQ, http://www.mozilla.org/MPL/relicensing-faq.html
Netscape Public License FAQ, http://www.mozilla.org/MPL/FAQ.html
Feature, Open Source Families and Facts, http://www.unixreview.com/documents/s=8925/
ur0312b/
A Comparison of Open Source Licenses, http://swan.iis.sinica.edu.tw/LicenseWizard/
OSI_License_compare_v3.0.4EN.pdf
Electric Frontier Foundation, http://www.eff.org
Foundation for a Free Information Infrastructure, http://www.ffii.org
IP Justice, Campaign for an Open Digital Environment, http://ipjustice.org/CODE/
League for Programming Freedom, http://lpf.ai.mit.edu
Infochange - Intellectual Property Rights, http://www.infochangeindia.org/
Intellectual_Property_Rights.jsp
Copyrights and Software Protections by Patents and Copyrights, http://www.ladas.com/
Patents/SoftwareProtectionIndex.html
Journal of Information, Law and Technology, http://elj.warwick.ac.uk/Jilt/
Creative Commons, http://creativecommons.org
Open Source Legal Toolkit, Massachusetts Government Information Technology Division,
http://www.mass.gov/portal/site/massgovportal menuitem.769ad13bebd831c
14db4a11030468a0c?pageID=itdsubtopic&L=5&L0=Home&L1=Policies%2c+Standards+%26+Legal&L2=
Legal+Guidance+%26+Documents&L3=Software+Licensing+%26+Development&L4=
Open+Source+Legal+Toolkit&sid=Aitd
Software Freedom Law Center, http://www.softwarefreedom.org/index.html

24
 GLOSSARY

This section is a derivative work of its Mandarin version co-authored by Rong-chi Chang and Chingyuan
Huang, former colleagues of the OSSF, Institution of Information Science, Academia Sinica.

Copyleft

Proposed by free software advocates, copyleft is an alternative framework conceived within

copyright law which usually confers exclusive rights to copyright holders and thus limits access
to the work by all others. Authors may want to “copyleft” their works to grant certain rights to
people who are interested in distributing or modifying their works, provided these people will
also “copyleft” all the derivative works. Although copyright and copyleft might represent very
different ideas regarding the relationship between authors and their works, copyleft is not against
copyright law. On the contrary, without the rights granted by the copyright law, authors will not
have the power to copyleft their works. Please also refer also to the definition provided by the
Free Software Foundation at http://www.gnu.org/copyleft/copyleft.html.

Copyright

A bundle of rights regarding the use of a creative expression (including literary works, music
compositions, movies, paintings, software, and the like) that the law grants exclusively to the
author. Copyright is applied to a work upon its creation. Except for the limitation set by copyright
law, any use of a work without the copyright holder’s consent is regarded as an infringement.
Note that copyright law protects only the expression of ideas but not the ideas themselves.

Copyright Holder

The individual or legal entity who is entitled to exclusive rights under copyright law. It is usually
said that copyright law aims to protect authors of creative works. But since most of the rights
protected are treated as property rights and may be transferred, many copyright holders are not
the authors of the works themselves but their employers or those who have commissioned these
works.

Derivative Work

Copyright law is applied to every work once it is created. With the consent of the copyright
holder, one can use this (original) work to create derivative works. For example, a newer version
of a program might contain all or part of the code of the earlier version. Thus the newer version
is a derivative work of the earlier version. Translation of a document is also regarded as a type of
derivative work.

Distribution/ Redistribution

Distribution of the copies of a work is also an exclusive right granted to the copyright holder. In
FOSS licenses, all receivers of copies of a program are allowed to make further distributions. The
term redistribution may be used when emphasizing that the distributor has received the program
from somewhere and is distributing further.

Fair Use

Copyright law seeks to maintain a balance between private and public interests. “Fair use” is
developed to limit excessive copyright protection and to allow the general public greater access
to copyrighted works. When a work is used without the consent of the copyright holder for
purposes of criticism, comments, news reporting, teaching, scholarship or research, such use

25
26  Free/Open Source Software: Licensing

might not be considered an infringement. Though copyright may differ in different jurisdictions,
usually the following factors are considered by the court in deciding whether a case falls under
fair use or is an infringement:

The purpose and character of the use, including whether such use is of a commercial
nature or is for non-profit educational purposes.

The nature of the copyrighted work.

The amount and substantiality of the portion used in relation to the copyrighted
work as a whole.

The effect of the use upon the potential market for or value of the copyrighted
work.

First-sale Doctrine

The first-sale doctrine is an exception of copyright law that is codified in Section 109 of the US
Copyright Act. Similar doctrines may be also be adopted by other countries. The doctrine allows
the person who purchased a legally acquired copy of a copyrighted work to further distribute
(including sell, rent or give away) the copy without permission from the copyright holder. But
the first-sale doctrine does not apply to phono-records and computer software.

License

A license is a legal document that copyright holders may adopt to regulate how people can use
their works. Users are often required to accept the terms and conditions of a license as a
prerequisite to their use of the copyrighted works.

Multiple Licensing

The copyright holder of a work can have various ways of making use of his/her work available to
others. The terms and conditions she would want users to accept may differ from case to case.
For example, the copyright holder of an editor software may be willing to issue an academic
license that is cheaper and more affordable for students, while commercial licenses are adopted
when the program is sold to commercial entities. A copyright holder can also decide to license
a work under both FOSS licenses and proprietary licenses to achieve different purposes.

Public Domain

The term public domain is used to describe all creative works that are not protected by copyright
law and can therefore be used freely. Works that are in the public domain might be cultural
heritage that came to existence before copyright law, or works that were once protected but
whose copyright has expired, or works for which their copyright holder decides not to claim
copyright. In the latter case, the disclaimer must be made explicitly. In some countries, a signed
written document deposited with a national registrar may even be required. Works that are
licensed under FOSS licenses are still copyrighted and do not fall into this category.

Source Code

Source code is written in special kinds of languages designed for programming. A program in its
source code form might not be easy for lay people to understand, but it is comprehensible to
trained programmers. When the source code is converted to machine readable form, even
programmers will have difficulty understanding and modifying the program. Therefore, access
to the source code is a prerequisite for the development of FOSS and a principle embraced in all
FOSS licenses. A more detailed explanation of “source code” can be found in the Glossary of the
introductory primer, Free/Open Source Software, A General Introduction, which is available online
at www.iosn.net/downloads/foss_primer_current.pdf.

Sub-license

When a copyright holder licenses her work to someone else, she can also choose to allow the
licensee to sublicense the work. That is, when the licensee distributes the work, within the scope
of rights granted by the licensor, the licensee is not only a (re)distributor but also a licensor of a
 Glossary  27

sub-license between her and the other party (licensee of a sub-license). However, most FOSS
licenses do not grant people the right to sub-license. For example, A is the copyright holder of X
program. B receives a copy of X and distributes more copies. C receives the copy from B. If A does
not grant B the right to sub-license, both B and C receive the license directly from A. If A grants
the right B to sub-license program X, within the scope of the rights granted by A, B may start a
new license and him/herself become a (sub)licensor of program X.

Warranty Disclaimer

Warranty is a guarantee made by the vendor against potential liabilities arising from the use of a
product. All FOSS licenses come with a warranty disclaimer. Such clauses are designed to protect
the author of FOSS programs, for these programs are licensed without royalty and changes might
be added in its development. However, although FOSS programs themselves are royalty-free
and disclaim warranty, vendors of FOSS programs can always provide their customers with a
warranty and various kinds of supports for a fee.

Another reason why licenses of community distributions may not include warranty clauses may
be because developers are expected to understand the code and fix the bugs, and are invited
and expected to take on some responsibility as a member of the community. However, in
commercial distribution, it is unreasonable to expect customers to be capable to read and change
the code. In some countries, failure to provide minimum guarantee will lead to consumer
protection issues
 ABOUT THE AUTHOR

Shun-ling Chen did her master degrees in law both at National Taiwan University and Harvard Law School.
Her research interests and political commitments have been mainly about how self-organized social
agencies are able to instigate driving forces for structural transitions. She has been working with various
NGOs and sees FOSS as one of such community building processes. Until the summer of 2004, she was
the project co-lead of Creative Commons Taiwan and served in the OSSF54 project as the project manager
of its Law and Policy team.

Built with FOSS modules, OSSF is a public platform that offers free (as in free beer!) tools and spaces for
FOSS community to develop their projects. The OSSF is carried out by the Institute of Information Science,
Academia Sinica, Taiwan.

54
OSSF is a recursive acronym for “OSSF Supports Software Freedom”, http://www.openfoundary.org

28
 ACKNOWLEDGEMENT

The author would like to acknowledge her debt of gratitude to the following:

The reviewers of this primer, Richard M. Stallman, Eric S. Raymond, Dr. Nah Soo Hoe, Aniruddha
Shankar, Mahesh T. Pai, and Kenneth Wong for their valuable comments and suggestions.

Her colleagues at the OSSF project and the FOSS community members who have developed
their projects on the Openfoundry, for providing their valuable inputs towards understanding
FOSS licensing issues and developing the ideas contained in this primer.

The current and former UNDP-APDIP colleagues Sunil Abraham, Khairil Yusof, Phet Sayo, Shahid
Akhtar and Kenneth Wong for their efforts and assistance that made this primer possible.

And finally, those who have contributed their time, efforts, and resources to the FOSS movement
with enthusiasm which has shown us what voluntary collaboration among human beings can
achieve.

29
 APDIP IOSN

The Asia-Pacific Development Information The International Open Source Network (IOSN) is
Programme (APDIP) is an initiative of the United an initiative of APDIP and supported by the
Nations Development Programme (UNDP) that International Development Research Centre of
aims to promote the development and application Canada. IOSN is a Centre of Excellence for Free/
of information and communication technologies Open Source Software (FOSS), Open Content and
for sustainable human development in the Open Standards in the Asia-Pacific region. It is a
Asia-Pacific region. APDIP aims to meet its goals network with a small secretariat based at the
by focusing on three inter-related core areas: UNDP Regional Centre in Bangkok and three
(i) policy development and dialogue; (ii) access; centres of excellence – IOSN ASEAN+3, IOSN PIC
and (iii) content development and knowledge (Pacific Island Countries), and IOSN South Asia,
management. based in Manila, Suva and Chennai respectively.

APDIP collaborates with national governments, IOSN provides policy and technical advice on FOSS
regional, international and multi-lateral to governments, civil society and the private
development organizations, UN agencies, sector. It produces FOSS awareness and training
educational and research organizations, civil materials and distributes them under open
society groups, and the private sector in content licenses. It also organizes awareness
integrating ICTs in the development process. It raising, training, research and networking
does so by employing a dynamic mix of strategies initiatives to assist countries in developing a pool
– awareness raising, capacity building, technical of human resources skilled in the use and
assistance and advice, research and development, development of FOSS. IOSN works primarily
knowledge sharing and partnership building. through its web portal www.iosn.net that is
collectively managed by the FOSS community. The
www.apdip.net web portal serves as a clearinghouse and a
platform for knowledge sharing and
collaborations.

www.iosn.net
 Also available from UNDP Asia-Pacific Development
Information Programme

e-Primers on Free/Open Source Software

Free/Open Source Software – A General Introduction

Free/Open Source Software – Education
Free/Open Source Software – Government Policy
Free/Open Source Software – Localization
Free/Open Source Software – Open Standards

w w w.iosn.net
e-Primers for the Information Economy, Society and Polity
The Information Age
Free/Open Source Software
Legal and Regulatory Issues in the Information Economy
Nets, Webs and the Information Infrastructure Licensing
Information and Communication Technologies for Poverty Alleviation Shun-ling Chen
Internet Governance
e-Commerce and e-Business
e-Government
ICT in Education
Genes, Technology and Policy

w w w.apdip.net/elibr
.apdip.net/elibrar
.net/elibrar y
ary

IOSN
c/o Asia-Pacific Development Information Programme
UNDP Regional Centre in Bangkok
3rd Floor, United Nations Service Building
Rajdamnern Nok Avenue
Bangkok 10200, Thailand
An initiative of the UNDP Asia-Pacific Tel: +66 2 288 1234; 288 2129
Development Information Programme IOSN ASEAN+3
and supported by the International
National Telehealth Center
Development Research Centre, Canada
University of the Philippines Manila
Taft Avenue, Manila, Philippines 1000
Tel: +63 2 525 6501

IOSN PIC (Pacific Island Countries)

The University of the South Pacific
Private Bag
Suva, Fiji
Tel: +67 9 323 1000
with support from
IOSN South Asia
Centre for Development of Advanced Computing
Asia-Pacific Development Information Programme
Block-II, 6/13, Park Avenue, Keshava Perumal Puram e-Primers on Free/Open Source Software
Chennai-600 028, India
Tel: +91 44 2461 0880