International In-house Counsel Journal Vol. 11, No. 41, Autumn 2017, 1 Open Source, IP and Patent Pledges: AMANDA BROCK Visiting Research Fellow, Centre for Commercial Law Studies, Queen Mary University, UK 1.0 Introduction to Open Source This article considers the use of patent promises or pledges, as a device to counter what are often seen in the Open Source world as undesirable consequences of the operation of the patent system. They have become particularly topical in 2017, as the world’s first billion dollar Open Source company, Red Hat, extended it’s patent pledge further in September 2017. 1.1 What is Open Source? In its simplest definition, “Open Source” is a term used for software, whereby the human readable source code is shared with users of the software by way of a licence. A licence enables free use, modification and distribution of that software. The human readable code is written in a computer coding language that can, like any other human language, can be read by someone who speaks that language. In traditional, proprietary software distribution, that human readable code is a closely guarded secret and not shared, as it contains the “secret sauce” of the software. Source code is compiled into machine- readable code and this then instructs a computer or device of the action to take. Without the source code it is not possible without extreme effort to maintain or modify a compiled software program hence its value and “secret sauce” nature. In the open source model, the source code is openly shared and freely available under licence allowing others to use, study, modify and add to the original open source code, and distribute the code so long as the terms of the licence on which the software is distributed are complied with (which may, depending on the licence, require redistribution under the same licence). 1.2 The History – free and Open Source software Open Source software is also referred to as “Free Software”. Richard Stallman is the Godfather of Free Software. “Every decision a person makes stems from the person's values and goals. People can have many different goals and values; fame, profit, love, survival, fun, and freedom, are just some of the goals that a good person might have. When the goal is a matter of principle, we call that idealism. My work on free software is motivated by an idealistic goal: spreading freedom and co-operation. I want to encourage free software to spread, replacing proprietary software that forbids cooperation, and thus make our society better.” “Free software” means software that respects users' freedom and community. Roughly, the users have the freedom to run, copy, study, change and improve the software and distribute it as changed, or in the original form. With these freedoms, the users (both individually and collectively) control the program and what it does for them.” The GNU web site goes on to say ““free software” is a matter of liberty, not price. To understand the concept, you should think of “free” as in “free speech,” not as in “free beer”. The essence of “free” software is enshrined in the concept of copyleft. International In-house Counsel Journal ISSN 1754-0607 print/ISSN 1754-0607 online 2 Amanda Brock Stallman refers to free software and not to Open Source software. He is the “father” of the ideological free software movement and the creator of copyleft. Not all code in the world of free and open source software is copyleft [add copyleft logo here]. The term is not enshrined in law, but a pun from this man, with a symbol that is the reverse of the copyright symbol ©. To make this concept a reality Stallman and his advisers developed a legal tool in the licence of the free software which is a licence provision that ensures that any user who takes and modifies the code they received under a copyleft licence will, if they distribute the modified code, be required do so under the same free licence without any additional restrictions or conditions and will release the source code in the modified code they distribute, under those original terms. The GNU General Public License is probably the best known and most used example of this type of licensing1. Each party will own the copyright in what they have created but must license any new or modified version of the code under the same terms as the code they received, ie the licence being copyleft, the rights are left in the free code and the quid pro quo for usage of the free software is that new developments if distributed, must be contributed back. The licence terms are non-discriminatory and allow anyone to modify and extend the code subject to this restriction included by the guardians of free software for the user’s own protection. It is intended to preserve the freedom under which the software was initially distributed through the use of the concept of copyleft. As the creator of the original work owns the copyright in his work, despite the work being licensed under a copyleft licence for use by others, should any user not contribute back under the same licence, then that user would have stepped beyond their rights as granted under the licence and potentially be in breach of the original copyright holder’s copyright2. As Stallman states “All code added to a GPL3 program must be free software, even if it is put in a separate file. I make my code available for use in free software, and not for use in proprietary software, in order to encourage other people who write software to make it free as well. I figure that since proprietary software developers use copyright to stop us from sharing, we co-operators can use copyright to give other co-operators an advantage of their own: they can use our code.” As a concept, copyleft takes copyright (where the creator of a work is the owner of the copyright in code they develop and third parties may use it only with the owner’s consent) and turns it around practically as well as symbolically. This is achieved by requiring that both the work licensed for free use and any and all changes made to that work by a third party must be distributed subject to the same ongoing freedoms and that this freedom cannot be restricted without the owner of the original copyright work’s consent. 1 GPLv2 section 6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License. 2 GPLv2 section 4. You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License. Any attempt otherwise to copy, modify, sublicense or distribute the Program is void, and will automatically terminate your rights under this License. However, parties who have received copies, or rights, from you under this License will not have their licenses terminated so long as such parties remain in full compliance. 3 GPL – the GNU General Public Licence, is an OSI approved standard open source licence published by the Free Software Foundation (“FSF”) on the terms of which free software may be distributed by anyone who meets the free software definition and complies with the licence terms. Open Source 3 Copyleft code when combined in certain ways with other code may create a new collective piece of code that may be a derivative work. Understanding the derivative work concept is something best compared to cracking eggs to make an omelette. Once the eggs are combined they become one new thing not individual eggs and cannot be put back into their constituent parts easily. That doesn’t mean to say that there are not alternative ways of putting together a different meal with the eggs without mixing them and in which the eggs stay as individual eggs and identifiable as such (like gammon with a lovely fried egg on top). But, once they are mixed together to make an omelette, they are combined to create a new and distinct thing. In software terms the combination of software to create a combined new work is a derivative work, which like the omelette is not easily reversed. Where this happens in software, the new derivative work, like the original copyleft licensed component, will also be subject to copyleft terms. This impact of copyleft has been referred to, (much to the annoyance of the software development community) as the “viral effect”, where the free copyleft software, if combined with other code to create a derivative work, “infects” that non copyleft code with its freedom and makes both the original free software and the additional software “free”. However, it should always be borne in mind that this is not the normal outcome or consequence of a combination of software. This has created considerable and often unnecessary fear in the minds of owners of proprietary and is perhaps the biggest single factor that dissuades some business usage of free software. In short the owners of proprietary code are concerned to use free software due to this fear that the copyleft code will virally affect their rights in their own proprietary code. Clearly this consequence fits the ideology Stallman espouses. His copyleft ideology creates a cascade of free software and freedom. As a paternalistic concept, it protects users from themselves in the interest of freedom.