LLeeggaall IIssssuueess RReellaattiinngg ttoo FFrreeee aanndd OOppeenn SSoouurrccee SSooffttwwaarree Editors PROFESSOR BRIAN FITZGERALD Head of the School of Law Queensland University of Technology, Australia GRAHAM BASSETT Barrister, Bank of New South Wales Chambers, Brisbane, Australia Essays in Technology Policy and Law Volume 1 ISBN 0-9751394-0-1 i Contents Preface PROFESSOR BRIAN FITZGERALD i Acknowledgements PROFESSOR BRIAN FITZGERALD iii Foreword THE HONOURABLE PAUL LUCAS MP iv Chapter 1: MARK WEBBINK 1 Licensing and Open Source Chapter 2: PROFESSOR BRIAN FITZGERALD and GRAHAM 11 Legal Issues Relating to Free BASSETT and Open Source Software Chapter 3: LARRY ROSEN, DAVID SCHELLHASE, YANCY 37 Live from Silicon Valley. LIND and BILL LARD Views of Open Source Practitioners Chapter 4: PETER C.J. JAMES 63 Open Source Software: An Australian Perspective Chapter 5: PROFESSOR WILLIAM J. (BILL) CAELLI 90 Security with Free and Open Source Software Chapter 6: PAUL GAMPE and RHYS WEATHERLEY 116 The Developers’ Perspective – Commentaries Chapter 7: GRAHAM BASSETT and NIC SUZOR 123 Recent Developments Biographies 127 ii Preface This publication was given impetus by my spending a sabbatical leave in the heart of Silicon Valley at Santa Clara University Law School and Red Hat opening a major office in my hometown of Brisbane Australia. In Silicon Valley I was able to draw upon a wealth of free and open source practitioners – a number of them like Larry Rosen and Bill Lard are Santa Clara alumni – to join with me in running a public seminar on Legal and Business Issues for Free and Open Source Software on 7 June 2001 much of which is embodied in Chapter 3 “Live from Silicon Valley”. On returning to Australia and learning that a number of lawyers in Australia including Martin McEniery and Anne Fitzgerald (my sister) were acquaintances of Mark Webbink, legal counsel for Red Hat, it was decided that we would run a conference at my Law School at the Queensland University of Technology in Brisbane Australia. All the while the genius of the free software movement was spreading throughout the world like wild fire most obviously in the form of the Linux operating system. The powerful insight that Richard Stallman and his associates at the Free Software Foundation had discovered was that if you want to structure open access to knowledge you must leverage off or use as a platform your intellectual property rights. The genius of Stallman was in understanding and implementing the ethic that if you want to create a community of information or creative commons you need to be able to control the way the information is used once it leaves your hands. The regulation of this downstream activity was achieved by claiming an intellectual property right (copyright in the code) at the source and then structuring its downstream usage through a licence (GPL). This was not a simple “giving away” of information but rather a strategic mechanism for ensuring the information stayed “free” as in speech. It is on this foundation that we now see initiatives like the Creative Commons expanding that idea from open source code to open content. On 3 July 2002 I convened the Legal Issues Relating to Free and Open Source Software Conference which was opened by The Honourable Paul Lucas MP, Minister for Innovation and Information Economy for the State of Queensland Australia. The conference examined legal and business issues facing the development and implementation of free and open source software. The presenters were lawyers, academics and software developers expert in the area drawn from Australia and the USA. iii The Program for the conference was as follows: • “Welcome Address” — The Honourable Paul Lucas MP (Minister for Innovation and Information Economy) • “An Overview of Free and Open Source Software Licences” — Professor Brian Fitzgerald and Graham Bassett • “Legal Issues Arising from the Use of Free and Open Source Software in Business” — Mark Webbink • “Live from Silicon Valley” — David Schellhase, Larry Rosen and Bill Lard • “Security and Free and Open Source Software: The SE Linux Experience” — Professor Bill Caelli • “The Developer’s Perspective” — Andrew Tridgell, Paul Gampe and Rhys Weatherley • “Advising on Free and Open Source Software: An Australian Perspective” — Peter James and Martin McEniery This publication embodies much of what was presented at the conference, which was and still is contemporary and challenging. The issues considered not only reflect on the past and present but also the future landscape. It is interesting to see that Australia in 2003 is one of a few countries in the world that has Bills before its legislative bodies to mandate the consideration of free and open source software by government departments and agencies. Note that Chapters 2, 4 and 5 represent fully prepared academic articles while Chapters 1, 3 and 6 are revised versions of the conference transcript. In my view they work extremely well together. Marks Webbink’s practical comments work with Peter James focus on the operation of the GNU GPL in Australia which is followed by an excellent analysis by Bill Caelli of security and open source issues which in turn is followed by the very real comments and concerns of leading software developers. The issues featured in this volume are directly relevant to legislators and government officers, academics and practitioners/professionals in the areas of law, business and information technology, as well as to developers of both proprietary and free and open source software. I hope you enjoy reading this volume as much as I have enjoyed learning about the free and open source software model and the promise it provides not only for software development but for the dissemination of knowledge more generally. Professor Brian Fitzgerald Head of Law School QUT Brisbane 20 September 2003 iv Acknowledgements The QUT Conference and this publication would not have been possible without the generous support of Minister Paul Lucas and the Queensland Government Department of Innovation and Information Economy, QUT Law Faculty, Santa Clara Law School, Red Hat and the individual presenters and participants at the conference. The enthusiasm and assistance of my co-convenor and co-presenter Graham Bassett was unwavering and exceptional as was the operational support of my assistant Suzanne Lewis who worked hard to ensure these projects were successfully completed. The QUT Conference was invigorated by the brilliant minds of technology gurus like Bill Caelli and Andrew Tridgell and the pragmatic legal advice of Mark Webbink from Red Hat, who gave generously of their time as did all of the presenters: Minister Paul Lucas, Peter James, Martin McEniery, Larry Rosen, Bill Lard, David Schellhase, Paul Gampe and Rhys Weatherley. Bill Lard ensured we had a link into one of the Sun campuses in Silicon Valley and allowed us a memorable and near perfect link to Lard, Rosen and Schellhase: Live from Silicon Valley. Dating back to the Santa Clara Conferences I owe these three very bright lawyers a huge vote of thanks. QUT AV technicians in particular Dennis Clark (Technical Development Coordinator) and Ross Hutton (Audio Visual Technology Assistant) made sure the link to Silicon Valley worked. Lawyers Adrian McCullagh and Anne Fitzgerald, QUT Vice Chancellor Professor Peter Coaldrake and QUT Deputy Vice Chancellor Tom Cochrane all supported the conference through their attendance and involvement in sessions. Carl Middlehurst gave me some good start-up advice on contacts in Silicon Valley, while Nic Suzor, Cheranne Bartlett and Sally Hawkins provided first-rate research assistance. Thank you. Professor Brian Fitzgerald Head of Law School QUT Brisbane 20 September 2003 v Foreword THE HONOURABLE PAUL LUCAS Queensland Minister for Innovation and Information Economy I am pleased to be here today to welcome you to this important conference on “Legal Issues Relating to Free and Open Source Software”. As you would be aware, Open Source Software has been the subject of international debate since a young hacker named Linus Torvalds developed Linux as a hobby in the early 1990s. Having been a lawyer before I became a Minister I recognise, on the one hand, Open Source Software encourages innovation and entrepreneurship but, on the other hand, it raises legal issues which must be addressed in a way that helps to promote commercial development of the ICT industry. Today is an opportunity to revisit this debate and look at the legal issues associated with Open Source Software in the 21st century. The Beattie Government Smart State strategy is about seizing the challenges that come with the information age.1 We recognise that ICT and associated software is having a huge impact across industry and our daily lives. ICT impacts on how we do business and work, how we are educated and how we are entertained. We only need to look at our local film industry to see how the information age is driving development across industry sectors while also changing how we are entertained. In 1999 the Queensland Government introduced the Queensland Communication and Information Strategic Plan 1999-2004 as a blueprint for driving government activity and ICT.2 The second annual report3 and the plan’s progress shows that Queensland Government agencies are making significant progress in delivering on the strategies for the key areas of ICT skills, ICT industry development, e-commerce and telecommunications infrastructure. The Queensland Government sponsorship of today’s forum further demonstrates our commitment to developing and pursuing all aspects of the ICT industry. I think it is important to mention that Queensland houses the largest e-security research community in the southern hemisphere and the largest one in the world besides that of the United States. The products we are 1 The aim of the Smart State Initiative is to “develop Queensland as an Asia-Pacific hub for the new industries of the 21st Century – industries such as biotechnology, information technology, nanotechnology and communication technology”.