FOSS Licensing/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. 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. 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.

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:


 * 1) Run the program, for any purpose (freedom 0).
 * 2) Study how the program works, and adapt it to your needs (freedom 1). Access to the source code is a precondition for this.
 * 3) Redistribute copies so you can help your neighbour (freedom 2).
 * 4) 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.

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.

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 http://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.

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. 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. 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.

The OSD echoes the rights stated in the Free Software Definition, including the users’ access to the sourcecode (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 http://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 http://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 analysed by the FSF, and only two of these, the Original Artistic License and the Reciprocal Public License, are regarded as non-free licenses.