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Tilburg University Free and Open Source Software Schellekens, M.H.M Tilburg University Free and Open Source Software Schellekens, M.H.M. Published in: The Future of the Public Domain Publication date: 2006 Link to publication in Tilburg University Research Portal Citation for published version (APA): Schellekens, M. H. M. (2006). Free and Open Source Software: An Answer to Commodification? In L. Guibault, & B. Hugenholtz (Eds.), The Future of the Public Domain: Identifying the Commons in Information Law (pp. 303- 323). (Information Law Series; No. 16). Kluwer Law International. General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Download date: 27. sep. 2021 Free and open source software: an answer to commodification? Maurice Schellekens 1. Introduction Linux is a PC operating system which is distributed under the General Public License (hereinafter: GPL). The GPL allows for the (royalty-)free use, modification and redistribution of the software. Given these license conditions, Linux users believed they could use the operating system without too many license worries. That was until SCO claimed to own the rights in certain parts of the Linux code, and started sending bills to Linux user for their use of the code ‘owned’ by SCO. IBM was targeted as well because it allegedly ‘leaked’ the code-segments to open source communities. This case perfectly illustrates the effects of an ever increasing trend towards commodification. In the early days of computers software was given away for free to those who bought the hardware, but these days are over. Users of software must pay for its use as for any tradable commodity. Only the free and open source movements adhere to the old idea of sharing software instead of locking it in. But these movements are increasingly confronted with opposition from the proponents of what I shall call the proprietary software model. The SCO v. IBM case is a case in point. If free and open source software is an exponent of the public domain for software, then this part of the public domain is ‘under pressure’. Given the importance of a wealthy public domain for economic and social innovation, this development is a reason for concern. In this chapter I will focus on the following question: ‘Does the open source model for development and distribution of software (and increasingly also of other types of information) provide an adequate counterweight to commodification?’ In the open source model software is developed in a free and open way. Software is 1 MAURICE SCHELLEKENS made available freely (i.e. without requiring payment of royalties) for anyone to use or modify, inclusive of its source code. In answering this question I will investigate whether open source lends itself conceptually to such task. I will also try to shed some light on the viability of the open source model, as it needs to compete with the traditional proprietary model and is under pressure from that model’s proponents. The outline of this chapter is as follows. Since free software and open source software are still relatively new phenomena, the following paragraph will explain what free and open source software are. The so-called Open Source Definition will take centre stage in this discussion. In the next paragraph (par. 3) I will then focus on the central question of this chapter: is the open source model an answer to the real (or perceived?) drawbacks of commodification? In order to answer this question the interrelationship between a number of key concepts, such as commodification, public domain and open source software, is explained. This section provides an answer to the question whether the open source model lends itself conceptually to form a counterweight against commodification or the proprietary model which is the exponent of commodification. Having answered this question in the affirmative, I will then address a few doctrinal issues with respect to the free or open source license, more specifically the General Public License (hereinafter: GPL). These issues may become important, since there is a rather fierce ‘competition’ between the proprietary and open source models. The doctrinal weaknesses of the open source model run a certain risk of being exploited by the protagonists of the proprietary model. In the next section the converse question will be addressed: how does open source model affect the proprietary model? Following that the relation between technical protection of works and open source software will be dealt with. Section &.4 deals with the suitability of he model to function in conjunction with other types of information than software. In the penultimate section (&.5) the role of government with respect to the open source model is investigated. The last section contains a conclusion reflecting the preceding sections. 2. What is Open Source? The term ‘open source’ refers primarily to the fact that the source code of computer software is made available to the public. But this is only part of the concept, as will be clarified below. The Open Source Definition (hereinafter: OSD) by the Open Source Initiative (hereinafter: OSI) is generally taken to be most authoritative definition of what open source is. 1 It must however be said that this is the definition of the OSI and diverts from what e.g. the Free Software Foundation 1 M.H. Webbink, ‘Open source licensing: today’s big legal challenge (Part 1)’, Georgetown CLE 1 – 22 (2003). The Open Source Definition will be discussed below. 2 FREE AND OPEN SOURCE SOFTWARE : AN ANSWER TO COMMODIFICATION ? (hereinafter: FSF) takes to be free software. According to the FSF, ‘free software is a matter of the users' freedom to run, copy, distribute, study, change and improve the software.’2 Free software is for most practical purposes entirely comparable to open source software. The main difference is in the ideological background. Stallman, the man behind free software, holds the opinion that all software should be freely available. You should think of ``free'' as in ``free speech,'' not as in ``free beer.'' 3 Stallman’s main focus is on freedom. Raymond, the man behind open source software, takes a more practical stance. 4 Open source is simply a good way to develop and distribute software, no more, no less. In this chapter I will assume that software is open source if there is a material conformance to the OSD. This is in keeping with practice; the term open source often used in a broader meaning, so that it also encompasses free software and software distributed under the BSD license. 5 So there is some room for a finding that licenses qualify as open source even if they divert in some respect from the OSD. From the OSD it appears that the terms for distribution determine what open source software is and what not. The definition consists of ten criteria that will be dealt with hereinafter. The terms of the definition are rendered in italics. 1. Free Redistribution The license shall not restrict any party from selling or giving away the software as a component of an aggregate software distribution containing programs from several different sources. The license shall not require a royalty or other fee for such sale. The licensee is free to redistribute the software. It can be assumed that copying necessary for redistribution is also allowed. Distribution is not limited to distribution of physical copies, but also includes distribution by other means such as transmission through the Internet. 2. Source Code The program must include source code, and must allow distribution in source code as well as compiled form. Where some form of a product is not distributed with source code, there must be a well-publicized means of obtaining the source code for no more than a reasonable reproduction cost preferably, downloading via the Internet without charge. The source code must be the preferred form in which a programmer would modify the 2 See http://www.gnu.org/philosophy/free-sw.html . 3 See http://www.gnu.org/philosophy/free-sw.html . 4 E.S. Raymond, Homesteading the Noosphere , First Monday 1998, available at: http://www.firstmonday.dk/issues/issue3_10/raymond/. 5 BSD stands for Berkeley Software Distribution., a derivative of the UNIX operating system. 3 MAURICE SCHELLEKENS program. Deliberately obfuscated source code is not allowed. Intermediate forms such as the output of a pre-processor or translator are not allowed. Computer programs are written in higher programming languages, such as Pascal, C++, etc. These higher programming languages do not include precise machine-readable instructions and thus make programming easier. Computer programmers can concentrate on the essentials, not bothered by machine-specific details. Programs written in higher programming languages do however have a significant drawback: they cannot be directly executed (i.e. run) by a computer. Such programs must be first converted (‘translated’) into machine-executable form by special programs called compilers. The program in the higher programming language is called source code and the resulting machine code is called the object code. The machine code can be run on a computer independently of the source code from which it stems.
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