This practice focuses on Free and Open Source Software (FOSS) licensing. It addresses the major difficulties which can be encountered at the various maturity steps of a FOSS development project, from initial license choice to community governance and legal audit of source code. Reading this document, the reader will learn about key issues in setting up, running, and ensuring sustainability of FOSS projects. www.FITT-for-Innovation.eu

1. FOSS Licensing
FITT
– Fostering Interregional Exchange in ICT Technology Transfer –
www.FITT-for-Innovation.eu
Except where otherwise noted, this work is licensed under a Creative Commons Attribution 3.0 License.

2. Open Source licensing as a practice
Free and Open Source Software (FOSS) licensing relates to a practice of IP
management based on intellectual property in order to optimize open innovation
creation, development and exploitation
Free Software license definition is given by the Free Software Foundation,
whereas Open Source definition is managed by the Open Source initiative. It
should be noted that although all Free Software licenses are Open Source, the
inverse is not true.
Such licensing schemes tend to invert market powers in-between software
providers and users compared to proprietary licensing
Proprietary licensing usually relies on the notion of value creation through a negative
right (monopoly)
FOSS licensing uses copyright to create a more positive right (strongly reducing the
patrimonial monopoly to the benefit of users)
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3. FOSS licensing as a practice
Free software licensing (source : FSF.org)
The freedom to run the program, for any purpose (freedom 0).
The freedom to study how the program works, and change it to make it do what you
wish (freedom 1). Access to the source code is a precondition for this.
The freedom to redistribute copies so you can help your neighbor (freedom 2).
The freedom to improve the program, and release your improvements (and modified
versions in general) to the public, so that the whole community benefits (freedom 3).
Access to the source code is a precondition for this.
Open Source licensing (source : OSI)
List of 10 criterias available at http://opensource.org/docs/osd
Main difference beeing that Open Source defines objective criteria
whereas the notion of freedom can be subjective
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4. FOSS licensing as a practice
FOSS licensing encourages the involvement of licensees in the
improvement and distribution of the work under license. However, such
licenses remain bound by intellectual property laws, and most often the
scheme designed to encourage such actions as written in the contract
(the license) differs from one license to another, therefore generating
difficult licensing interoperability issues
FOSS licensing management definition can relate to two main periods in
a project life
• Before the project : choosing a (or several) FOSS license(s) corresponding
to the needs and strategy
• During the project : managing the governance from an IP and licensing
standpoint (external contributions management, community management,
…)
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5. FOSS licensing as a practice
Before the project
FOSS licenses are not neutral. Some only relate to copyrights, other
include specific obligations and grants related to trademarks and/or
patents
There are three main categories of FOSS licenses
Academic (only obligation relates to the respect of the paternity of the
software – software under license can be incorporated in proprietary
derivative software)
Reciprocal (viral obligation where derivative software have to be licensed
under the same license as the original software – copyleft effect, therefore
software under license cannot be incorporated in proprietary software)
Contextual (technical license designed for components such as librairies –
the context of derivative work creation will activate or not a copyleft effect)
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6. FOSS licensing as a practice
Before the project
Choosing a license depends on the exploitation strategy
Should the license optimize knowledge sharing?
How far should the patrimonial monopoly of the right holder be
enforceable?
FOSS licensing choice also depends on technical issues
Is the project original or itself derivative from pre-existing FOSS?
Should the license be compatible with the widest range of available
FOSS licenses? If yes, should “multiple licensing” strategies be
used?
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7. FOSS licensing as a practice
Governing licenses during the project
First rule : an infrastructure has to be in place to ensure compliance towards
third party licenses
As stated before, interoperability issues among FOSS licenses exist
FOSS licensing management during the course of the project include two
necessary main kind of actions
Management of what is being done when creating the software (especially if several components
under various licenses are used)
Management of third party contributions (to make sure, for example, that there is no copyright
infringement issues)
Tools such as “contribution charter” (describing the nature of the licensing
policy used within the project) and content sharing platforms for code creation
including identification of contributors activity should be used
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8. FOSS licensing practice
Governing licenses during the project
A precise list of third party code and their respective licenses need to be
updated. This list is meant to be included with each software distribution
Optional actions/good practices set within practice of FOSS licensing
management include licensing audit of code
This practice is commonly used at Tudor, in order to raise juridicial
security of code being developed
Code licensing audit include (1) a declarative template designed for
developers, where each would list third party components used and their
respective licenses and (2) an automated check of the source code using a
data-mining tool designed to find license or license-related “text patterns”
(the tool is Fossology, an Open Source platform developed by HP)
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9. When to do FOSS licensing management?
Timing
• FOSS licensing management impacts differently the various players implied
in a FOSS project, depending of the set up of the project and its maturity
• The compilation of the name, version, author (or right holder) and license of
each third party components should be done immediately during code
development
• Adequate FOSS licensing management allows to minimize potential liability
to the creator/right holder of the project
• FOSS licensing audits are to be used at least before each major releases of
key FOSS projects
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10. Who is implied?
Stakeholders
• The Stakeholders can differ entirely depending on the project
• One advantage of FOSS beeing collaborative development (inducing reduced
production-related costs), one of the major stakeholder is the community
using and/or contributing to the project
• Other stakeholders include
• IP Right holder (employer, …)
• Internal developers
• Clients
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11. Where is FOSS licensing management done?
Location
• FOSS succeeds mostly because of the use of the Internet as an ability to
communicate and collaborate at reduce costs
• Therefore, FOSS exploitation relies on virtual communities hosted on
servers which location is from a technical standpoint neutral (although, from
a juridical standpoint, it is not because of legal territoriality-specific potential
impacts)
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12. Pro’s & Cons
Pro’s
• Managing FOSS licenses is an obligation should the final product be develop
and transferred in a professional manner
• FOSS licensing dedicated audits allow to raise juridical certainty and
therefore are an important asset in technology transfer deals
• FOSS licensing, initially created for the software and computer related
environment, could be used more globally in various sectors of the economy
Cons
• FOSS licensing management can become a very technical and difficult
problem, especially for the case of licenses interoperability
• License choice for a project can sometimes create a path dependency which
might block valorisation strategy dynamics (such as licensing sheme change
for own code)
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13. Outcome
From Governance to IP Licensing
• FOSS licensing is a complex topic. Most often, FOSS is used by people
caring more about code availability than complex technical and legal issues
• Underestimating legal issues in FOSS licensing management can lead to
major difficulties for exploitation of the resulting software
• This has forced us to organize various trainings within our organization
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14. Lesson learned
FOSS licensing is a complex practice which is impacted by technical,
legal and business considerations
The choice of a license should not be done solely due to technical
interoperability issues (such as copyleft effects due to the
development of a derivative work). Exploitation considerations should
impact such a choice.
Such exploitation considerations imply that FOSS licenses should be
clearly understood by the TT officer implied in the FOSS licensing
practice
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15. Suggesting reading
Codebook links
Licensing – IP Management – Open Source – Software – IP Protection
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