Legal foundations of the open source way |

Legal foundations of the open source way

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I had the opportunity to participate as a speaker in the first Open Your World forum.  My presentation, "Open Source License Compliance", was an adaptation of a talk I've previously given to lawyers with varying levels of experience in the legal issues surrounding open source software.  It is always challenging to speak on this sort of subject when you aren't sure who your audience is, and I worried that the topic may have seemed relatively dry.  Nevertheless, I believe it is worthwhile to accompany discussions of applying open source principles to a wide range of non-technical contexts with a reminder of how those core principles apply, as legal rules and customs, to software, the original open source domain.

I began my talk by pointing out that software was originally more or less free (as in freedom). Gradually, over several decades, concepts of exclusive property rights, such as copyright, were imposed on software. Free software licensing models emerged in reaction to that development, and were an attempt to restore the original code-sharing commons. I went on to discuss the problem of defining free software/open source, and I distinguished the major categories of open source licenses (strong copyleft, weak copyleft, and permissive).

My presentation then shifted focus to the details of open source license enforcement and compliance. I pointed out that actual license enforcement litigation risk is so low that compliance is motivated primarily by ethical and social concerns.  The real key to compliance is to make an effort to understand, and satisfy, the reasonable customary expectations of upstream open source developers.  Downstream commercial users benefit from becoming upstream contributors themselves, which is the most natural and effective way to facilitate license compliance and minimize enforcement risk. In addition, good software development practices are essential for effective license compliance.

You can download my slides (pdf) and a recording of my talk (ogg), both of which are licensed under CC-BY-SA. You can also experience the archived webcast (hosted by Thomson Reuters, and requires submission of name, email address and company to access).   



About the author

Richard Fontana - Richard is Senior Commercial Counsel on the Products and Technologies team in Red Hat's legal department. Most of his work focuses on open source-related legal issues.