Lawyer gets it: the free ride is over (and never really existed)

Jun 5, 2008 · 4 minute read (archived post)
Category:  Business
Tags:  Free SoftwareGPLOpen Source
Words: 891

I just read this article. To quote:

Open source software had its origins in the free software movement. By now, most open source users understand that free refers to freedom, not to price. The new lesson is that the freedom belongs to the software, not to users. You are not free to do whatever you want with the open source software and may find yourself in a legal fight if what you do restricts the freedom of the software. (ed. emphasis mine).

Okay, this isn’t strictly true as it’s really referring to Free Software (GPL) rather than Open Source which includes BSD and MIT licenses which are less restrictive. After all you can pretty much do what you want with BSD and MIT licensed software including taking it proprietary.

Of course you’ve never been able to do what you like with Free Software. <!--more-->The GPL is quite clear on the four freedoms that are conveyed with GPL software. Then he writes this:

Changes in the GPL impose other limits on the ability to leverage a proprietary position when open source is involved. Under the new version of the GPL, those limits even extend to hardware that companies may provide to run open source software by prohibiting use of open source software on hardware that blocks execution of modified software.

Again, this is largely the point of the GPL. It isn’t there to help proprietary software companies build software. It’s there to enable a free software ecosystem. Then we have:

The litigation, however, is significant because it pounds home the need to understand the incompatibilities between open source software and many business models. Though settlements in litigation are private, it is likely that the targets of this round of litigation had to make payments and waive their proprietary rights by applying open source terms to their software. Whatever advantage these companies had from not providing the source code initially is likely more than wiped away.

So what. They got a free leg up in their business using Free Software and then don’t want to abide by the license when they seek to distribute that for profit! Funny, I don’t feel the slightest bit sorry for them. Finally we get:

With incompatibilities increasing through changes in licensing practice, for-profit companies now have fair warning that they may face litigation on accusations of restricting software freedom. In future litigation brought by open source advocates, the comfortable understanding in the broader technical community about what it means to keep proprietary software and open source software separate may not apply.

What does this really mean? Businesses need to be concerned that they actually follow the licenses of the software that they decide to use?

I guess what annoys, and perplexes, me is the core assumption that GPL (and most Open Source) software is there for anybody to take and then make money off it. Having to obey its license is annoying because it might reduce the ability of the business to make it a scarce resource and thus more valuable from a monetary rather than utility sense. However, it isn’t (and never has been) possible to just lift code from a proprietary license and use it as one sees fit.

Thus I see double standards; just because Free Software has the free word in it, businesses shouldn’t think they can just use it as they see fit without obeying the license. Would they do this with proprietary software? If found out, I’m sure they would expect to be sued for damages and other civil restraints possible for breaking a contract.

It boils down to this: don’t use the code if you don’t want to obey the license; write your own code if you want to use it as you see fit.