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  1. 1. Free the Code: Solution for IP headaches or MP3-like suicide? Jean-Raymond Fayat, University of Strathclyde, Glasgow. The idea that the proprietary software social system--the system that says you are not allowed to share or change software--is antisocial, that it is unethical, that it is simply wrong, may come as a surprise to some readers. But what else could we say about a system based on dividing the public and keeping users helpless? Readers who find the idea surprising may have taken proprietary social system as given, or judged it on the terms suggested by proprietary software businesses. Software publishers have worked long and hard to convince people that there is only one way to look at the issue. Stallman R., “The GNU Project”, URL: “The laws protecting software code are stifling creativity, destroying knowledge, and betraying the public trust. […]It's time to bust the copyright monopoly.” Lessig L., “May the Source be with you”, URL: "[Open source] lacks of a central body to define common standards across all the different projects for things like security, management, documentation, internationalisation and accessibility. […] Everybody is along for the ride but no one is driving. And how do you build a profitable business when all the work you put into creating your software is given away for free?" Miller D., group project manager for competitive strategies at Microsoft, “MS: A little More Open” URL: The software industry is in turmoil: adapting existing Intellectual Property tools or designing a sui generis right to software is proving very difficult indeed. On one hand, the recent heated debate at the European Parliament upon the patentability of computer-implemented inventions witnesses the complexity of the subject. Surveys show that IP actors and software giants are lobbying towards such a system, but that it is unlikely to foster small firms’ innovation and could even potentially endanger their existence1. On the other hand, copyright protection is proving unsatisfactory due to the lack of a satisfactory test to compare software. Paradoxically, a way forward for the software industry could be not to protect the Intellectual Property or, more exactly, to use copyright protection so as to grant increased rights to the users. This is the way proposed by open source code community, which has created the notion of “copyleft”. Certain commercial companies such as Netscape seemed also interested in such a solution, which involves a really new business model. The novelty resides in the fact that companies providing “copyleft” software give away their Intellectual Property by giving access to the source code and focus on the associated services. Suitable licensing 1 “The patent system gives SMEs no help in innovating, Macdonald concludes from surveys and interviews involving over 2,600 firms. It neither fosters nor protects their innovation. ‘The patent system is at best an irrelevancy for most small firms.’” Background and Overview of the Intellectual Property Initiative, a UK wide survey from academics and business people on how the industry sees the IP protection. URL:
  2. 2. terms potentially constitute a way forward for the software industry, even though they also lead to new legal problems. TABLE OF CONTENTS Part 1 The approach of free software communities: free software and open source. Part 2: The reaction of the commercial software industry Part 3. The legal limits of open source licenses force the creation of customised licenses. Conclusion: The use of copyright law through customised licenses could be a way forward for the software industry Bibliography Part 1 The approach of free software communities: free software and open source. 1.1 The underlying philosophy behind open source: software sharing communities The idea of free software came from MIT researcher Richard M. Stallman 2. In 1971, the Artificial Intelligence Lab at MIT was working on an operating system called ITS 3 which all staff hackers4 tried to improve by communicating their improvements to each other.5 As a result of technological advances, the programs ran by the ITS operating system became obsolete and the AI lab community collapsed. More, the way of working of programmers itself started to be restricted. Indeed, new Operating systems were following such license that obliged the users to sign a non disclosure agreement concerning the modifications on the software. The rationale behind those terms was that the company developing the software needed to be granted protection for its Intellectual Property investment. Those licenses actually provided that users of the software are not allowed to access or decompile the source code of the software except for interconnection purposes. Being a programmer able to solve bugs and develop and adapt the source code himself, Richard Stallman considered this denial of access to the source code was abusive. In particular, he pointed out that software companies do not have unquestionable right to own software and have subsequent power over the users of this software; indeed, he argued that "legal tradition does not grant copyright as a natural right but as an artificial right to grant monopoly that limits users' natural right to copy".6 2 Founder of the GNU project and creator of the Free software Foundation, a charity organisation for the development of free software. 3 Incompatible Timesharing System. 4 Original meaning: someone who likes programs and enjoys being clever about them. Richard Stallman: The GNU project. 5 This philosophy is as old as computers. Programmers have always achieved software development by working jointly on software rather than keeping their findings to themselves. 6 The view taken by Stallman here mirrors the view of the US Working Group in charge of the Information Infrastructure Task Force stated in “the Intellectual Property and the National Information Infrastructure Report”, which was at the origin of the 1998 Digital Millennium Copyright Act: “the primary objective of copyright is not to reward the labour of the authors but to promote the Progress of Science and Useful Art.”
  3. 3. Richard Stallman decided to set an example: he started to build the kernel for a 'free' operating system7 that anyone would be able to use and modify without infringing any type of agreement. He gave the source code of the program away to the users. This OS was compatible with Unix8 so as to make it portable and it allowed Unix users to switch to it. Such a project was called GNU, namely the recursive acronym "GNU is Not Unix"9 and Stallman founded an organisation, the Free Software Foundation, in charge of the development of similar projects. In particular, the goal of the GNU project was to develop an entirely free operating system, i.e. to develop, write or commit people to write all the applications needed by such an operating system. The GNU system entails notably Linux10as its kernel11. The underlying philosophy is developed in the GNU Manifesto: programmers should want to help because they are unhappy about the commercialisation of software. At this point, it all looked pretty unrealistic from an economical perspective: Stallman is betting that computer developers are ready to develop his software for free mainly because they are unhappy about the restrictive licensing terms. Nevertheless, this project was very welcomed by the developers’ community: these developers -the “free software community”- were indeed ready to give up their IP rights just to prove their worth by releasing their improvements to the source code to their fellow programmers. In order to keep this phenomenon going, Stallman worked with lawyers in order to design a license enabling this phenomenon to keep going. This license is using copyright law in a reversed way, where all the exclusive rights of the authors of the software, except the moral rights, are given up to the users. This is the notion of COPYLEFT. The Free Software Foundation website states: “It refers to four kinds of freedom, for the users of the software: • Freedom 0: the freedom to run the program, for any purpose; • Freedom 1: the freedom to study how the program works, and adapt it to your needs. Access to the source code is a precondition for this; • Freedom 2: the freedom to redistribute copies so you can help your neighbour; • Freedom 3: the freedom to improve the program, and release your improvements to the public, so that the whole community benefits. Access to the source code is a precondition for this."12 Those freedoms aimed at setting standards for a free software community. They have been stated and -more or less- adopted by the different "free software" licenses.13 Therefore, the meaning of free software refers to the freedom given to its users, not to its price. There is allowed and even encouraged to "sell free software"14 as this is one way to 7 'Free' as in freedom, not as in no cost. 8 Definition from : A multi-user, multitasking operating system. It was originally designed for minicomputers, and then revised for use on mainframes and personal computers. There are now many versions of UNIX, which can be used on many different platforms. Because it allows multiple programs to run simultaneously and multiple users to access a single computer, it has been used by universities and businesses where many people use the same computer. It is the most commonly used operating system for Internet nodes. 9 See, See also the GNU Manifesto same URL. 10 See following part 1.3. Linux was built thanks to the previous work made by the GNU project, which allowed it to be a Unix-like system. 11 The essential part of a program or operating system that performs the basic functions. (Definition from URL: 12 URL: 13 See following part 2.2 The viral effect and the different free software licenses. 14 See “the free software definition” and “selling free software” documents URL:
  4. 4. rise funding for the development of free software. Indeed, the Free Software Foundation encourages people to charge a fee to contribute to the development of the Foundation. Redistributing free software is seen a good and lawful activity. Good because it allows to spread the use of the software and lawful because it is allowed by the terms of the license. 15 It is always possible to get copies of the software for 'free' (as in no cost); it is an issue left up to the distributor of the software. Some Free Software companies, such as Red Hat and SuSe, are actually selling free software but their business model is based on the technical support and added services they are providing. The term 'free' being confusing as it made people believe they could have such software at no cost, part of the community decided to stop using such a word and call it "open source software" instead16. This happened in Palo Alto in 1998. The Free Software Foundation refused to take on this word: it argued that it put the focus on the availability of the source code for programmers worldwide and therefore emphasised the potential high- quality and astonishingly fast growth17 of the software; in parallel, it deleted the original philosophy of freedom and community.18 Therefore, the two names are still used to designate roughly the same type of product. 1.2 The ‘viral effect’ of the licenses and their different scope. Different types of licenses have been written for free software so as to encourage their distribution. There are two different types of free software licenses: these, which have a viral effect, and those, which do not. The viral effect of the license refers to the subsequent use of the work: once the user has modified or copied the code and wants to redistribute it, he has no choice but to redistribute it under a similar free software license, including -or not- his own improvements as it may be. He cannot use it in closed source software, for instance. This viral effect goes even further: if it is added to a separate piece of code, it “contaminates” it in that the whole software has to be released under a similar free software license. The following licenses are the probably the main licenses following ‘the copyleft’ philosophy: • The most popular license implementing copyleft is the popular GNU General Public License. This license has been written by lawyers on the demand of Richard Stallman. Regarding the later right of modification, the Free Software Foundation proposes that the user of the free software is entitled to make modifications to the source code and use them privately in your own work or play, without mentioning that they exist. However, provided that the developer intends to distribute the modified program (for a fee or for free), he has to provide the full source code -including his value-added- under the GPL license. 19 15 See following part. 16 This happened in reaction to Netscape announcement that it planned to give away the source code of its browser. 17 See 18 The GNU project, p13. For the rest of this dissertation, the words "open source", "free software" or "libre software" (from the French and Spanish word) will be used indifferently.
  5. 5. • Other types of licenses for free software exist. In particular, the Berkeley Software Development License (BSL or BSD) is quite widely used as it is simple, easy to read and to understand. The main points are: 1. This is copyrighted material, owned by me [the author of the program]; 2. You [the user] can use it however you want, including selling it for a profit, as long as [the user] includes a credit to [the author of the program], and do not claim [he] (the user) wrote it [the moral rights stay with the author]; 3. Whatever happens to [the user] because of this material is [his] responsibility and [the author of the program] is not liable. There are no warranties, guarantees or refunds. 4. The name of the [author(s) of the software] may not be used to endorse or promote product derived from the software without specific prior written permission."2021 The major difference with the GPL is that the modifier of such a BSLed software is free to distribute the work under the licensing obligations that he desires. • The Artistic License is another type of free software license quite similar to the BSL. In addition, it entails a definition section for more complex works, prohibits selling the actual material22 and states requirements for any redistribution23. • Yet another free software license is called X11. It grants its users the following rights, namely to use, copy, modify, merge, publish, distribute and/or sell copies of [the software]", provided that such a copyright notice and the herein permission granted to the users appear in all copies of the software and the enclosed documentation. 24 As opposed to all licenses detailed above, the X11 is a “non viral” licence, i.e. it does not spread by ‘contaminating’ the subsequent improvements made to the software. The developers who have added code to the software can release their improvement under the type of license they chose. It could be noted that the reasoning followed by the creators of the X11 makes it quite similar to the old Berkeley license 25, i.e. little restrictions are placed by the license, the important thing being to advertise to popularise the use of the license. As a result, bits of code or even the entire software can be turned into a proprietary or ‘closed source’ software. This has the advantage of attracting ‘traditional’ software companies to develop those software. Such “free software” licenses are really an alternative to the public domain, where all the exclusive rights granted by copyright law to the author are erased. Anybody can do anything with the code: modify it, rename it, claim it their own… 1.3 The success of open source products 19 For further details, see the full text of the license at . Some parts of the license leading to legal controversy will be further analysed in part 3. 20 See full text at . A clause named "the advertising clause" has been deleted in July 1999 on the initiative of the Director of the Office of Technology of the University of California. 21 Another open source license is the MIT license, which is similar to the BSD license except concerning the fourth clause (non-endorsement) that it does not entail. 22 Redistributors of the software may charge for additional features (media, distribution costs) but not for the software itself. See 23 The original versions of the package must be included during the process of distribution of the modified versions. 24 See 25 With the "advertising clause", which made it compulsory to state that the software was originally developed by UC Berkeley.
  6. 6. The "free software" initiative of Richard Stallman met the enthusiasm of the hackers' 26 community. Numbers of products in open source have been released under the GNU GPL license or another. The targets of such products are networks as well as desktop (operating systems and applications). One really important role of open source is to keep standards open to everyone, away from the monopoly of one single company. As pointed out by some open source advocates, open source communities' achievements include the Internet itself and the World Wide Web. Indeed, the TCP/IP protocol was developed as part of UC Berkeley networking, and so were the HTTP language and the XML standards.27 Similarly, the most widely used application on the Web is the server Apache, an open source project which is now installed on more than half of all publicly accessible Web servers, dominating Microsoft and Netscape's software.28 Users of such software find it "faster, more reliable, more up-to-date" than its commercial counterparts. It was originally initiated by a graduate from UC Berkeley29. He wanted to improve the then-most-widely-used NCSA Web server program (National Centre for Supercomputing Applications). This Web server software being in the public domain, he was entitled to access and modify the source code. He wrote a piece of new code as a 'patch' to the NCSA server allowing it to handle password authentication at a large scale. At this time, nobody was taking care of the NCSA server and 'patches' were growing uncoordinatedly. A believer in the co-operative software development, this programmer, Behlendorf, contacted 7 other programmers to rewrite the source code of NCSA. This project took the name of "A PAtCHy server". Once the rewriting completed, the group took the name of 'Apache' group. All original developers agree to say that there was no boss or person in control of the development of the program. For this reason, the Apache server is considered as "one of the most successful stories of open source software (OSS)"30. It has notably succeeded in keeping Internet protocols open.31 Accordingly, the Perl language, most widely-used language for creating dynamic sites, is also an open source project32 and so is the Sendmail e-mail server, the heart of the Internet e-mail backbone. An argument for the success of such Open Source Software is that they are directed towards public networks, while the most profitable part of the computer business happens behind the firewalls of the Web servers, i.e. in Intranets -Netscape is first provider in this field- and desktops programs -Microsoft Windows Operating System has 85% of rate penetration worldwide.33 However, open source advocate Raymond states "the Internet is our killer application."34 However, the best-known Open Source Software is targeting this part of the computer industry: the Operating System Linux has managed to get 20% of penetration rate in the business world. Linux is a free, UNIX-like operating system, developed originally for home 26 As in computer nerds… 27 See O'Reilly Network: Open source: the Model for Collaboration in the Age of the Internet. URL: . Tim O'Reilly is one of the pioneers of the open source movement. See as well Lessig, L., Code and Other laws in cyberspace, Basic Books, 1999, p103. 28 Apache's Free Software Warriors, URL:, A Patchy Start, Apache's strong URL:,1294,34302,00.html 29 It is released under a BSD License (see part 1.2). 30 Open source defender Eric Raymond, The New Hacker's Dictionary, (1996), MIT Press, 3rd edition. In particular, Yahoo Website runs Apache. 31 See 2.1 Software Giant Microsoft worried about Linux competition. 32 It is the project for which the Artistic License was created. (see 3.1.2) 33 Comments from Internet project managers from Netscape and Microsoft, Dawes and Perrera. 34 The application, which will prompt people to use OSS. Eric Raymond, The New Hacker's Dictionary, (1996), MIT Press, 3rd edition, op. cit.
  7. 7. PCs, but which now runs on a variety of hardware platforms. The kernel 35 of Linux has been developed by the then-undergraduate student from the University of Helsinki Linus Torvalds and released under the GNU GPL license. Originally designed for a single processor and a mono platform system, Linux has benefited from the co-operation of numbers of programmers and can now be used for a wide variety of purposes including networking, software development and as an end-user platform. In particular, Linux is now the most popular Unix-like operating system and can be downloaded for free via the Internet or purchased on CD-ROM.3637 Linux is distributed by commercial companies such as Red Hat or SuSe. An increasing number of applications are available on Linux, including games previously only run under Windows Operating System. One of the advantages of Linux as an OSS is that it can be fleshed out of his non-relevant bits and customised for a specific use. Thus, it has been endorsed by the first commercial MP3 car-stereo-cum computer Empeg. This device can also surf the Web, send e-mails, and store dates and addresses.38 Another OSS is X Window released under the X11 license and therefore not obliging developers to release any improvement they made to the source code. This slows down the improvement of the OSS. The GNOME project is a program aiming to develop an interface for such an OSS. It is distributed by few companies including Ximian company. 39 Governments themselves have found interest in open source projects: the major reason for this change is economic, as those developing countries had to cut costs40. Thus a bill was passed in 2001 in Argentina requiring all government's branches to switch to open source software41. Similarly, Mexico, Brazil and Peru embraced the switch to Linux. Africa is considering it too.42 Even in the USA, the program 'Linux for schools' makes the free OS a serious alternative to Windows for financially restrained schools.43 Another deeply noticed move is the prototype for a more secure kernel SELinux developed by the very secret and serious NSA. It hopes to develop a secure OS which would have user-specific access controls comparable to Windows NT but would make them compulsory instead of discretionary. Such a wide adoption of open source pieces of software raises concern from the traditional software industry. Part 2: The reaction of the commercial software industry 35 Definition: The essential part of a program or operating system that performs the basic functions. 36 Definitions from Linux Journal, URL:, High-tech dictionary. URL:, What is Linux, URL: 37 Further details about Linux in part 2.3. 38 "Linux on Board", 03/03/99, URL:,1294,18236,00.html 39 The philosophy of open source even went beyond software to enlarge towards the entire computer world: the program "Open Source Equipment Exchange" operated as a community of hardware givers and takers see "Feeding the Open Source Hungry", 11/02/2000, URL:,1294,34226,00.html; open projects are developing and offer tremendous possibilities, e.g. the Grid where all computers connect through the Internet pool their power and act as one supercomputer. See "The Grid draws its Battle Lines", URL:,1294,20135,00html 40 IBM, which has always been an open source pioneer and support, has also recently released a memo prompting its employees to switch to Linux as their Operating System. 41 Before November 1998, Intellectual Property laws in Argentina made it legal to copy software! After the changes of those laws, 60% of Argentinean software were made illegal, prompting the government to initiate the switch to Linux. “Argentina embraces the Penguin”, 11/05/01, URL:,1294,43737,00.html and “Argentina Mulls Open Source Move”, 04/05/01, URL:,1294,43529,00.html 42 “Penguin, ‘Mad Dog’ visits Africa”, 25/04/01, URL:,1294,43238,00.html and “Peru Discovers Machu Penguin”, 22/04/02, URL:,1294,51902,00.html 43 “Penguin Enrols in U.S. Schools”, 20/08/01. URL:,1294,45862,00.html
  8. 8. 2.1 Computer giant Microsoft worried about Linux competition. In late October 1998, open source advocate Eric Raymond received a Microsoft document concerning its strategy against Linux and Open source Software. This famous document known as the Halloween document plans to start a misinformation campaign of Fear, Uncertainty and Doubt (FUD) against the open source movement, which was considered as a potential threat44. Microsoft even accused Linux of being "Anti-American"(...!)45 This fear of Linux was confirmed a year later with the addition of the header 'Linux Myths' on Windows NT website, where Microsoft points out the weaknesses of Linux.46 The open source community, who was flattered to be considered as a competitor, saw this as an encouragement more than as a problem. Further anti-competitive practices47 were reported in March 2002: the computer manufacturer Gateway testified during the anti-trust trial of Microsoft that Microsoft offered certain discounts to computer manufacturers who installed Windows. More, certain internal Microsoft documents showed a concerted effort to actually pressurise computer manufacturers not to use Linux. The representative from the main Linux distributor Red Hat testified that a deal with Dell failed due to its fear of retaliation from Microsoft. 48 On the other side, Microsoft rightly underlined what it sees as the three main weaknesses of open source, namely the lack of development control; a non-sustainable business model and a lack of warranty under the licensing terms. Firstly, the lack of development control. This is not very accurate: there are free software programmers in charge of coordinating the development of the software. It could be either a single person, like Linus Torvald, the ‘father’ of Linux, who is supposed to agree to improvements to the code; or a group, like the Apache group. Nevertheless, it is true that common standards should be defined49. Secondly, the absence of business model. It should be remembered that those companies selling free software are also getting the IP for free from the community and can therefore give it away freely. If it could well be that selling services is the way forward for open-source based companies; there are still few companies making money out of it 50. The crash two years ago appeared essentially due to the lack of sustainable ways of making profit. The bet of open source companies is that providing associated services, such as installation, support and implementation of applications is a sufficiently sustainable way to make profit. The final argument for Microsoft is that no compulsory warranty is provided under the GNU license, i.e. it is left up to the author of the program. Therefore there is problem of reliability of such software, argues Microsoft. However, it has been proven that relying on a 44 The authenticity of the document has been acknowledged by Microsoft and has later been covered extensively by the press. Full text of the document available at URL: 45 “Microsoft Lambastes Linux”, 08/10/99, URL :,1294,31801,00.html 46 Not all statements are accurate and, quite often, the weaknesses of Linux are present in Windows NT as well. 47 There also exists a technical anti-competitive practice known as "protected boot", a Digital Right Management strategy to prevent open-source software from running on new computers. For instance, certain user's interfaces do not support the switch to Linux. Further details at “LinuxWorld Expo gets serious”, URL:,1294,50030,00.html 48 “Gateway Exec: Microsoft Hurt Choice”, 25/03/02, URL: asp_technology10mar25.story and “Makers of PCs Fear Wrath of Microsoft”, 25/03/02, URL: 49 Open source developers do recognise that it would be good to come to an agreement, for instance regarding the user interface -which is now different from one provider of Linux to the other. 50 “MS: A little More Open” URL: even though their number is increasing.
  9. 9. very large community of developers limits dramatically the number of bugs -as they do correct each other51- and ends up with the issuing of a very reliable product. Moreover, free software companies such as Red Hat do provide support; that is even their only way of making profit. And has anybody ever filed a lawsuit against Microsoft because he lost a very important document due to a bug in MS Word? Are such warranties really provided with all ‘closed source’ licenses? 51 “Linus Torvalds. Preserving the F word”, 10/06/99, URL:,1294,20135,00.html
  10. 10. 2.2: The move of traditional software companies towards open source models: Dot-Net Initiative and the Commercial software Model. Even the commercial software industry is now trying to surf on the Open source phenomenon: in 1998, the source code of Netscape Communicator browser was released in open source under the GNU General Public License. Netscape was hoping that programmers world-wide would help it competing against Internet Explorer, the Web browser issued by its competitor Microsoft.52 Often, some companies like Sun Microsystems propose in parallel an open source version of a program and a “closed source” version more up-to-date. This is the case for the Star Office business pack, a competitor for Microsoft Office. While Star Office 6.0 from Sun Microsystems has up-to-date features, its open source counterpart Open Office consists in older versions of the pack. Despite its repeated criticisms, Microsoft has developed its own approach of free software. The Dot-Net Initiative -a set of software tools that will form the core of MS's future software initiatives53- is the first step of Microsoft to switch business model, from selling software to selling services constantly delivered and updated like cable television and telephone, the ultimate goal being to replace hard software by online operating systems and applications. In May 2001, Craig Mundie, Microsoft senior vice-president explained on MS Website54: the Dot-Net initiative is part of a strategy towards the future business model of the Information Society. This model, called 'Commercial Software Model', is built "around the 5 following elements: 1. Community: a strong support community of developers; 2. Standards: promote collaboration and interoperability while supporting innovation and healthy competition; 3. Business Model: promotes the growth of a profitable business; 4. Investment: level of research and development investment drives resources for future innovation; 5. Licensing Model: provides product and source access without jeopardising the intellectual property rights of those who create or use the software." Such a new licensing model follows Microsoft's 'Shared-Source Philosophy': it is said to be "a balanced approach that allows [Microsoft] to share source code with customers and partners while maintaining the intellectual property needed to support a strong software business."55 In other words, developers would be allowed to correct the source code of certain software but their Intellectual Property will solely remain with Microsoft. Microsoft argues that this "is an intellectual model that encourages interaction between technology, IP rights and the public sector of knowledge and not drives them apart."56 Shared Source typically allows Microsoft’s partners, and in some cases customers, to view programming code of Microsoft’s products. However, this solution is “less free” open source licenses: developers cannot adapt the code for personal use, and suggestions of changes must be passed on to Microsoft -'look but don't touch' philosophy. This Shared Source license may well be a way forward for the software industry, but it is still doubtful whether or not the programmers (other than MS employees) who have felt 52 Leer, A., (1999), Masters of the Wired World: Cyberspace speaks out, Pearson Education Limited. 53 Key to this program is the Common Language Interface, which is a layer between an OS and an application. It would allow users to have all information they need available online for whichever type of device. Such a language is also developed in the Mono project (see below). 54 URL: 55 The beautifully idealistic principles of this philosophy are also available at the same URL. 56 Same URL, op. cit.
  11. 11. upset by the ever-expanding behaviour and the poor quality of MS products57 over the years will be willing to help such an initiative to further contribute to the development of this monopoly. Opponents to Microsoft saw the Dot-Net project as a way of pushing forward their monopolistic attitude towards a brand new area: the Internet58. As a result, 2 months later, a parallel project called Mono was launched which intended to be an open source version of the Dot-Net Initiative. In other words, if Mono was successful, programs written exclusively for Windows OS could run also on Linux.59 After a timid start, Ximian60, the open source firm which initiated the Mono project, decided to call for the contribution of corporations (Intel and HP in particular) and added the license X11 to the GPL license of the project, allowing therefore the developers to keep their improvements to themselves if they wish to. The drawback of such a license is that it could lead such corporations to develop an optimised version of Mono for their own software that they would not release to the public. On the other hand, the advantage is to get large contributors to the project. Another type of approach would be to associate the benefits of the open source software with those of the proprietary software; in particular, running common applications under a free operating system or even associating different types of OS. 2.3 Associating Linux and Windows? One of the reasons blocking the adoption of Linux by the mass market is the lack of use of a new kind of OS, which would go with different types of applications. Several open source projects aimed at associating Linux and Windows: in October 2001, former CEO Michael Robertson created, a commercial Website distributing Lindows Operating System supposedly enabling customers to run either Linux or Windows applications on their PCs. He bet that customers are ready for a system allowing more flexibility.61 Robertson hoped to take advantage of the restrictions named 'activation feature' 62: XP has indeed been released with even stricter licensing terms than its predecessors in order to reduce piracy. In particular, to install MS Windows XP more than twice, even on the same machine, or to do major changes to the Operating System, the user needs to seek an authorisation from Microsoft. This may prompt more people to look for another Operating System. Similarly, the WINE project aims at bringing MS and Linux together: it is a layer of software which acts as a translator between Unix and Windows 63. This would allow users to run solely Linux with the applications they like under Windows. Wine would provide the best 57 Constant bugs, unfinished products on shelf and costly 'updates' until Windows 2000… 58 Such worries are justified as this can give rise to monopolistic behaviour. However, in case of evidence of abuses by Microsoft, the developers can just agree to stop to develop the code. 59 Further technical information in "Opening up .Net To Everyone", 06/07/01, URL:,1294,44985,00.html 60 Co-directed by Miguel De Icaza, leader of the open-source movement. 61 URL: Not surprisingly, Microsoft sued for trade mark infringement to his “Windows” OS. The final judgement is still pending. It should be pointed out that actually mainly sells a distribution of Linux that looks like Windows, but does not really run Windows. Associating both OS is possible provided that you use an emulator. 62 Actually, Lindows proposed mainly a distribution of Linux that looked like a windows desktop. See Wired News, "Lindows: Linux meets Windows", 25/10/01, 63 It is more than a simple emulator designed to duplicate the desktop environment of a particular OS. (WINE is a recursive acronym for Wine Is Not an Emulator). Wired News, "Can WINE ferment move to Linux?", 25/01/02, URL:
  12. 12. of open and closed source, but its development is not finished yet. Despite their statement that Linux will never be able to compete against Windows since it is not "in the business interest of the end-user"64, Microsoft seemed quite worried about this initiative. And in March 2002, an installation project called Crossover Office succeeded -ahead of WINE- in making most of the applications from MS Office available under Linux.65 According to an attorney in charge of the matter, "the licensing terms of Microsoft Office does not prevent the user to run the applications from another operating system than Windows, provided that the copy of MS Office ran was legally purchased.66 The potential for software from the 'commercial model' and the 'open source' model is now being developed. 64 Wired News, "Can WINE ferment move to Linux?", 25/01/02, URL: 65 Wired News, "Linux and Office: what a concept", 28/03/02 URL: It is should be pointed out that Microsoft has also developed a similar product called Interix for Unix's application to run under MS Operating System. 66 “Gateway Exec: Microsoft Hurt Choice”, 25/03/02, URL: asp_technology10mar25.story and “Makers of PCs Fear Wrath of Microsoft”, 25/03/02, URL:
  13. 13. Part 3. The legal limits of open source licenses force the creation of customised licenses. 3.1 Using licenses raise legal problems The novelty of the open source movement and, overall, the lack of "physical" organisation in charge of such software had limited the number of lawsuits until the current hot attack by SCO against Linux. It may be the very first legal test of the GPL license. A software company selling Unix Operating System, SCO argues that some of the lines of source code of its Unix software have been included in the kernel of Linux and seek compensation from all Linux users for it. Last year, they especially filed a first lawsuit against IBM, one of the strong supporters of Linux asking for $5bn of compensation. However, they refused to give away this source code as they wait for the court to designate an independent expert. They have also warned other Linux users of lawsuits. In parallel, they have opened an online-ordering website for companies willing to license Linux. Novell, the former owner of Unix system, undermined the lawsuit claiming that, when SCO purchased Unix from them, the agreement did not include the right to control “derivative work”, i.e. subsequent code based on Unix source code. In March 2004, SCO filed other lawsuits against DaimlerChrysler and AutoZone. It will be interesting to pay attention to the development of this lawsuit: some companies are starting to pay licenses to SCO, considering that their claim might be right, in the way that it is virtually impossible to prove the contrary (!). That is a strange way of reversing the burden of proof… Until then, the jurisprudence concerning free software licenses have related to the non- respect of licensing terms. I was only aware of four problems on this matter. • In May 1998, the company Cache Computing released the source code of InfiniteOS, an open source alternative Operating System to Mac OS, under one free software license, the Berkeley Software Development License. Elements of this system turned out to be originally components of Linux Operating system, posted by a programmer who did not mention that they were from Linux. But Linux was released under the GPL. And the GPL is viral; therefore, any inclusion of bits of code under GPL in a software prevents this software from being released under another license. Developers argued that Cache Computing did not give appropriate credit to the copyright of the original work. The company apologised and argued that it was not aware that the bits of source code were parts of the code of Linux. Some conclusions can be drawn from there: because nobody is responsible for the development of the software, bits of the source code could be infringing without the distributor knowing it and the latter could be 'trapped' in all good faith. This point is also important in the SCO case67. Another point is that the GPL license -despite its 'relative' complexity- does tend to supplant other licenses because of its strict terms -allowing part of its code to be used in other free code on the sole condition that this other code is GPL'd too.68 This is probably the price to pay to get the 'free software' spirit going, it could seem quite abusive. So some open source companies can potentially copy each other, but there are also cases where ‘closed source’ companies are using bits of an open source software. • This is the case of the MPEG4 Video codec, an open source software, which was extensively copied by a software company, Sigma Designs. The open source team, which worked on the project, claimed that the software was infringing the GPL license. They reached a settlement before it went to court. The difficulty in this case is to find out about 67 The SCO case follows the logic of the Cache Computing case in a ‘reversed’ way. 68 It could be potentially prevent the spread of customisable licenses (see 3.3.: Creative commons and Lawrence Lessig).
  14. 14. the infringing bits of code as the reverse engineering is forbidden except for interconnection purposes. So, proprietary software companies can easily include bits of open source code in a closed source program. • Another requirement of the GPL is that the code is released to all users. In September 1999, Corel released a 'beta testing' version of Corel Linux to a limited number of developers. This Corel Linux is supposed to be a consumer version of Linux. This partial release of the source code provoked the indignation of the open source community, which argued that the GPL was not changeable and that it made it compulsory to release freely the code to the whole public. Corel argued that the agreement they signed with the developers mainly distinguished between its own proprietary code69 and the publicly available source code of Linux70. A spokesman for Corel added that "all [they] were doing was mainly to involve third-party testers before they release their own improvement of the code". The rationale of those tests lies in the fact that, "as a commercial company, [they] cannot afford to release a code which would not be satisfying"; they have to be careful "about their reputation, their shareholders". Indeed, small companies do not have always the time and skills to test all their code themselves. As a result, it might be that the GPL license is quite difficult to handle for small companies. The option of having a specific license for 'beta testing' should be considered. The three formers cases gave solely rise to concerns from the open source community but the matter was sorted out without lawsuits. On the opposite, when a commercial company found itself in contact with allegedly infringing open source software, the matter was brought to court and resulted in a very interesting case even though it failed to test the GPL license as it could have. • “Cyber Patrol” is a censorware, i.e. a software preventing from accessing certain offensive and unsuitable websites. Two cryptoanalysts, Eddy Jansson from Sweden and Matthew Skalla from Canada found out that some of the websites forbidden by Cyber Patrol were absolutely not offensive71, but that they were forbidden because they opposed the technology of censorware. In 1999, they posted on the Swedish provider Scandinavia Online the source code and executable of the program CPHack, which allowed to browse and view the blacklist of Cyber Patrol. In March 2000, the owner of Cyber Patrol, Mattel Microsystems, a subsidiary of the toy giant Mattel, filed lawsuits in Canada and in Sweden and got a worldwide temporary injunction against from US Federal judge E. Harrington for infringement of US copyright law.72 This injunction was meant to apply as well to "mirror websites", which linked to the CPHack site or posted its code. As a result, the programmers of CPHack handed over their copyrights to Mattel as a settlement of the lawsuit. Then Mattel tried to enforce those rights to have CPHack erased from the Internet. However, problems arose: the GPL terms make it impossible to revoke the license. Indeed, clause 7 of the Terms and Conditions of the GPL license states: “if, as a 69 See Wired News, "Corel's Linux Open to Question", 22//09/99, URL: . This term "proprietary code" when talking about an improvement of the existing free code is in itself contradictory to the terms of the GPL. 70 They argued that license talks about distribution of the code, not talk about beta testing. In that, their license is therefore similar to the one of Turbolinux, a distributor of Linux, which distinguishes between Linux's source code and the improvements -such as user interface- made by Turbolinux. 71 In addition to websites whose content relates to Satanism, porn, gambling, alcohol use, Cyber Patrol also bars access to all student organisations at Carnegie Mellon University and newsgroups related to food, journalism, Chinese culture and chess by mislabelling them into one of the categories quoted above. 72 This is an odd decision. Indeed, copyright law is by essence national and a worldwide injunction certainly goes beyond the jurisdictional power of any national court (see French Yahoo case). NB: Mattel's claim has been brought under unlawful reverse engineering of the program, which was not allowed under the licensing terms. Another claim could have been that CPHack violated the anti-circumvention provisions of the DMCA.
  15. 15. consequence of a […] court judgement, […] conditions are imposed on you that contradict the conditions of the License, they do not excuse you from the conditions of this License”.73 Therefore, CPHack was still under GPL74 license, which means that the users own the exclusive rights of the developers. The deal between Mattel and the developers was not valid as the latter did not own the copyright anymore. It has escaped the developers’ control and Mattel threatened them for 'fraud'.75 Clause 7 further states: “If you cannot distribute so as to satisfy simultaneously your obligations under this license and any other pertinent obligations, then as a consequence you [the user] may not distribute the program at all."76 Afterwards, they cannot argue the existence of a lawsuit to claim their rights back. Then, the American Civil Liberties Union appealed of the judgement in favour in Mattel. This judgement of the Court of Appeal found the 'mirror websites' "non parties" to the judgement77, therefore the injunction did not apply to them and they could freely post the source code of CPHack.exe on their websites. This underlines one of the limits of the GPL license: if one of the programs released under the license is found infringing, every user has the right to copy and distribute the infringing software (just like in the public domain, but with the high-speed distribution channels of the open source community). This potential abuse could occur for most of other open source licenses as well: as shown, the loss of control of the copyrights falls into a legal loophole! More than this particular aspect of exclusive rights, the philosophy of Stallman can have a serious impact on copyright lawsuits. Open source takes advantage of one aspect copyright law to give the freedom to the users of the software and it can destroy the way this very same copyright law is now applied concerning software. Indeed, when deciding of non-literal copyright infringement in a computer program, evidence of access to the source code of the program needs to be proved -along with presence of copyrighted elements in the infringing software. In open source, the step of access to the source code is deleted as it is free! Therefore, the sole requirement for copyright infringement in 'free software' would be the presence of similar copyrighted elements in both software. The tests designed to decide of this stage need to be more precise than the “Whelan” test; otherwise, lawsuits will blossom. 3.2 Customisable licenses: the way forward? This goes back to the importance of the licensing terms. US Stanford Law Professor Lawrence Lessig proposes to offer customisable licenses to the different types of digitally 73 URL: 74 It is not clear if CPHack was released under a GPL license: according to Matthew Skala, Eddy Jansson planned to release CPHack under a GPL license but they never agreed on it. As a result, there are only fragmentary GPL notices accompanying the program. Threatened by Mattel's lawyers of potential liability for fraud, the authors were quick to say they did not release CPHack under a GPL license. The court eventually decided that the notices did not constitute a license. I admitted for the sake of my argumentation that they constitute a license. 75 The qualification of the offence is probably not right. Anyway, the liability of the authors probably falls there into a legal loophole. They cannot do anything any more, as the licensing terms prevent them from doing so. 76 What about the cases when the release has already occurred? Does the GPL actually grant a license to distribute infringing software “lawfully”?! This might be a point to be corrected in future versions of the license. This case could have led to a serious attack of the GPL license… 77 Decision of the 1st Cir. Court of Appeals, 27/09/2000. See on the website of the American Civil Liberties Union (ACLU), which represented the 'mirrors websites'. "ACLU Gives Clients Green Light to Post Blocking Software Code." URL:
  16. 16. copyrighted works. He created a venture named "Creative Commons"78, whose purpose is "to produce flexible, customisable, intellectual property licenses that artists, writers, programmers and others can obtain free of charge to legally define what constitutes acceptable uses of their works.79" This goes back to Lessig's central argument that copyright law is primarily designed to benefit the public and the progress instead of solely rewarding the authors of the works; instead, such a proposal is an alternative layer between full copyright law and the public domain. These licenses derive from ‘free software licenses’. In particular, under a Creative Commons license, the licensees may copy and distribute the author’s work, provided that they comply with the conditions wanted by the author. 80 Those protections have been divided into 4 different features, that the author is wanting -or not- to allow: • The author sticks to his moral rights: “he requires attribution”; • The author “allows commercial use of his work”; • The author “allows modification to his work”; • The author requires that the person using its work to release the additions he has done under the same licensing conditions, i.e. to “share it alike” (this is also called the ‘viral effect’ of the license). Certain licenses could include specific provisions, e.g. provision requiring the payment of a fee if the work is sold. Like open source licenses, such licenses use the copyrights of the authors but it does not propose a definitive abandon of the copyrights: they can choose which of their rights they want to give up to the profit of the users and what can and cannot be done with their work. Dispensations to the license can be granted by the author upon request. Certain will want full protection while others will not be bothered by certain uses of their work. In parallel, Lawrence Lessig proposes the creation of 'conservatories' of IP or 'orphanware' for software. In those publicly available records, the source codes of programs, either not commercialised or belonging to companies going out of business, would be kept and available for everybody to be able to learn from them. This would avoid the loss of IP occurring at present. However, Lessig's solution leaves also a number of questions open: • The positioning of such licenses compared to open source licenses should be handled with care. This could result in problems of compatibility of the licenses in case of combination of works. This is indeed a growing concern of the open source community today. • This results in the creation of a lot of different licences. As a result, users of such open source programs would need to be educated about the meaning of terms and conditions to exactly know what they are entitled to do. In the Corel case, certain executives of Corel already found the GPL license difficult to interpret and apply to their actions. From my personal experience of working with software programmers, this can definitely be a potential problem. • Those licenses will not have been tested in court; therefore their efficiency is quite doubtful as they could be proved invalid by a technicality. If it is the case, the user does not have a claim against Creative Commons, as the license entails a disclaimer stating that “Creative Commons makes no warranties for the information provided and disclaim 78 Article SF Gate: All Hail Creative Commons "Stanford professor and author Lawrence Lessig plans legal insurrection", 11/02/02. URL: The company's Website is still under construction. 79 Personal Website of Prof. Aaron Swartz: "Aaron Swartz: the Weblog". URL: 80 For more details, check URL:
  17. 17. liability for damages resulting of its use.” But then, how protected is the author of the work? • Last -but not least- issue is the enforcement of such licenses. How do you concretely enforce such a license requiring, for instance, the payment of a fee for a commercial use of the work? Creative Commons does not maintain a staff of lawyers to work on license infringement and clearly states: “CC Corporation is not a law firm and does not provide legal services. Distribution of this license does not create an attorney-client relationship. CC provides this information on an ‘as is’ basis”. I am not yet aware of any case involving one of these licenses.
  18. 18. Conclusion: The use of copyright law through customised licenses could be a way forward for the software industry Software licensing, as proposed by the open source philosophy, is a way forward for the software industry. I have to agree with Richard M. Stallman that the user should be able to fix bugs in your software by yourself if they are not satisfactory. Everybody is not skilled in the art of programming anyway. Most of the users would not know what to do with a source code and are quite happy to pay people to do it for them. Ironically enough, the solution proposed by Microsoft seems interesting even though some would argue that they are mainly taking the Intellectual Property of the programmers who contribute to their software for free. Furthermore, Creative Commons also provides an interesting alternative, which needs to be further tested and adapted in a business environment. Both models –closed and open source- models are now coexisting: some firms selling free software are starting to be profitable and some others such as Sun Microsystems allow two versions of a program, namely one closed source version, which entails the latest developments of the software and the older version, free under the GPL license. Open source addressed one of the major problems of the Information Age, which is that the Value of Intellectual Property has decreased along with the developments of the ways of promoting it. The community has, realistically, welcomed this change and tried to deal with it. This is also a trend that Microsoft has picked up: they are ready to switch from a property-based economy to a service-based economy using the lessons taught by free software licenses. The downside of such a switch is that programmers are not spending time developing software but rather supporting the existing ones and, as a result, the innovation is not fostered. This is probably an important limit of the Free Software Philosophy.
  19. 19. I would like to thank Yacine Belkadi, Catherine Colston and Massimo Pasquale-Coluzzi for their help, comments and support during the writing of this paper. However, any imprecision or potentially dubious conclusion is my own. Bibliography • Books Leer, A., (1999), Masters of the Wired World: Cyberspace speaks out, Pearson Education Limited. Lessig, L. (1999), Code and other laws of cyberspace, Basic books; (2001), The future of ideas, Random House. Raymond, E., (1996), The New Hacker's Dictionary, MIT Press, 3rd edition • Articles All Hail Creative Commons "Stanford professor and author Lawrence Lessig plans legal insurrection", 11/02/02. URL: is still under construction. Lessig, L. webpage: . • Cases MICROSYSTEMS SOFTWARE, INC., and MATTEL, INC. v. SCANDINAVIA ONLINE AB; ISLANDNET.COM; EDDY L. O. JANSSON; and MATTHEW SKALA CIVIL ACTION 98 F. Supp. 2d 74; 2000 Appeal: MICROSYSTEMS SOFTWARE, INC., ET AL, v. SCANDINAVIA ONLINE AB, ET AL., WALDO JAQUITH, LINDSAY HAISLEY, AND BENNETT HASELTON, 226 F.3d 35; 2000 U.S. App. Stipulated Permanent Injunction issued on 28/03/00, URL: • Open source licenses Daemon News on licensing Linux community: URL: Linux Journal, URL: Open Source advocates. URL: O'Reilly Network, URL: Slashdot website: “News for Nerds. Stuff that matter”. URL: The GNU Project and related links: Richard Stallman, the GNU Project, The Free Software Definition, Linux and the GNU project, The GNU Manifesto, Selling Free Software, the GNU GPL license, Free Software Foundation. URL:
  20. 20. X Organisation. URL: • The Mattel “CP Hack” case “CyberPatrol hackers Lose round”, 17/03/00, URL:,1294,35038,00.html “Mattel’s Filter Fiasco to Court”, 27/03/00, URL:,1294,35196,00.html “Mattel Stays on the Offensive”, 27/03/00, URL:,1294,35216,00.html “Mattel suit takes a GNU Twist”, 28/03/00, URL:,1294,35226,00.html “The Story of CPHack”. URL: "ACLU Gives Clients Green Light to Post Blocking Software Code." URL: • Open source Business news Lindows. URL: Red Hat: Turbolinux: Ximian company: Apache Software Foundation: “Apache's Free Software Warriors”, URL: “A Patchy Start, Apache's strong”, 14/02/2000, URL:,1294,34302,00.html "Feeding the Open Source Hungry", 11/02/2000, URL:,1294,34226,00.html "Linux on Board", 03/03/99, URL:,1294,18236,00.html "The Grid draws its Battle Lines", URL:,1294,20135,00html “Linus Torvalds. Preserving the F word”, 10/06/99, URL:,1294,20135,00.html “Linus: Down With Upgrades”, 23/09/99, URL:,1294,21913,00.html “Linux Getting its Game Face On”, 11/09/00, URL:,1294,38573,00.html “The Linux Free For all”, 03/03/99, URL:,1294,18234,00.html • Microsoft and Open source "Can WINE ferment move to Linux?", 25/01/02, URL: "Can WINE ferment move to Linux?", 25/01/02, URL: "Lindows: Linux meets Windows", 25/10/01, "Linux and Office: what a concept", 28/03/02 URL:
  21. 21. “A Linux OS to Challenge MS?”, 25/10/2001, URL:,1294,47856,00.html/ “Lindows: Linux meets Windows”, 25/10/01, URL:,1294,47888,00.html “LinuxWorld Expo gets serious”, URL:,1294,50030,00.html “Microsoft Lambastes Linux”, 08/10/99, URL:,1294,31801,00.html “Of mixed Messages, Linux and XP”, 31/10/01, URL:,1294,48012,00.html • Governments “Argentina embraces the Penguin”, 11/05/01, URL:,1294,43737,00.html “Argentina Mulls Open Source Move”, 04/05/01, URL:,1294,43529,00.html “NSA takes the open source Route”, 11/04/01, URL:,1294,42972,00.html “Penguin Enrols in U.S. Schools”, 20/08/01, URL:,1294,45862,00.html “Penguin, ‘Mad Dog’ visits Africa”, 25/04/01, URL:,1294,43238,00.html “Peru Discovers Machu Penguin”, 22/04/02, URL:,1294,51902,00.html • Comments from the industry "MS: A little More Open", URL: "Opening up .Net To Everyone", 06/07/01, URL:,1294,44985,00.html “MS Welcomed with Open Source Arms”, 25/07/01, URL:,1294,45523,00.html “Open Source’s Dot-Net Less Open”, 28/01/02, URL:,1294,50037,00.html Microsoft Website: and March 2002: "Sun offers concession to open-source developers on Java." URL:,,SB1017180648757968080,00.html “Gateway Exec: Microsoft Hurt Choice”, 25/03/02, URL: asp_technology10mar25.story “Makers of PCs Fear Wrath of Microsoft”, 25/03/02, URL: March 2002: "Sun offers concession to open-source developers on Java." URL:,,SB1017180648757968080,00.html. • Other comments Personal Website of Prof. Aaron Swartz: "Aaron Swartz: the Weblog". URL: High-tech dictionary. URL: