FITT Toolbox: FOSS Licencing


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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.

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FITT Toolbox: FOSS Licencing

  1. 1. FOSS Licensing FITT– Fostering Interregional Exchange in ICT Technology Transfer – www.FITT-for-Innovation.euExcept where otherwise noted, this work is licensed under a Creative Commons Attribution 3.0 License.
  2. 2. Open Source licensing as a practiceFree 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) Partner Logo2 | 03.2011 FOSS Licensing
  3. 3. FOSS licensing as a practice Free software licensing (source : 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 Main difference beeing that Open Source defines objective criteria whereas the notion of freedom can be subjective Partner Logo3 | 03.2011 FOSS Licensing
  4. 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, …) Partner Logo4 | 03.2011 FOSS Licensing
  5. 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) Partner Logo5 | 03.2011 FOSS Licensing
  6. 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? Partner Logo6 | 03.2011 FOSS Licensing
  7. 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 Partner Logo7 | 03.2011 FOSS Licensing
  8. 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) Partner Logo8 | 03.2011 FOSS Licensing
  9. 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 Partner Logo9 | 03.2011 FOSS Licensing
  10. 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 Partner Logo10 | 03.2011 FOSS Licensing
  11. 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) Partner Logo11 | 03.2011 FOSS Licensing
  12. 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) Partner Logo12 | 03.2011 FOSS Licensing
  13. 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 Partner Logo13 | 03.2011 FOSS Licensing
  14. 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 Partner Logo14 | 03.2011 FOSS Licensing
  15. 15. Suggesting reading Codebook links Licensing – IP Management – Open Source – Software – IP Protection Partner Logo15 | 03.2011 FOSS Licensing