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The Art of Unix Programming
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Unix Programming - Licensing Issues

Anything that is not public domain has a copyright, possibly more than one. Under U.S. federal law, the authors of a work hold copyright even if there is no copyright notice.

Who counts as an author under copyright law can be complicated, especially for software that has been worked on by many hands. This is why licenses are important. They can authorize uses of code in ways that would be otherwise impermissible under copyright law and, drafted appropriately, can protect users from arbitrary actions by the copyright holders.

In the proprietary software world, the license terms are designed to protect the copyright. They're a way of granting a few rights to users while reserving as much legal territory as possible for the owner (the copyright holder). The copyright holder is very important, and the license logic so restrictive that the exact technicalities of the license terms are usually unimportant.

As will be seen below, the copyright holder typically uses the copyright to protect the license, which makes the code freely available under terms he intends to perpetuate indefinitely. Otherwise, only a few rights are reserved and most choices pass to the user. In particular, the copyright holder cannot change the terms on a copy you already have. Therefore, in open-source software the copyright holder is almost irrelevant — but the license terms are very important.

Normally the copyright holder of a project is the current project leader or sponsoring organization. Transfer of the project to a new leader is often signaled by changing the copyright holder. However, this is not a hard and fast rule; many open-source projects have multiple copyright holders, and there is no instance on record of this leading to legal problems. Some projects choose to assign copyright to the Free Software Foundation, on the theory that it has an interest in defending open source and lawyers available to do it.

For licensing purposes, we can distinguish several different kinds of rights that a license may convey. There are rights to copy and redistribute, rights to use, rights to modify for personal use, and rights to redistribute modified copies. A license may restrict or attach conditions to any of these rights.

The Open Source Definition is the result of a great deal of thought about what makes software “open source” or (in older terminology) “free”. It is widely accepted in the open-source community as an articulation of the social contract among open-source developers. Its constraints on licensing impose the following requirements:

  • An unlimited right to copy be granted.

  • An unlimited right to redistribute in unmodified form be granted.

  • An unlimited right to modify for personal use be granted.

The guidelines prohibit restrictions on redistribution of modified binaries; this meets the needs of software distributors, who need to be able to ship working code without encumbrance. It allows authors to require that modified sources be redistributed as pristine sources plus patches, thus establishing the author's intentions and an “audit trail” of any changes by others.

The OSD is the legal definition of the “OSI Certified Open Source” certification mark, and as good a definition of “free software” as anyone has ever come up with. All of the standard licenses (MIT, BSD, Artistic, GPL/LGPL, and MPL) meet it (though some, like GPL, have other restrictions which you should understand before choosing it).

Note that licenses that allow only noncommercial use do not qualify as open-source licenses, even if they are based on GPL or some other standard license. Such licenses discriminate against particular occupations, persons, and groups, a practice which the OSD's Clause 5 explicitly forbids.

Clause 5 was written after years of painful experience. No-commercial-use licenses turn out to have the problem that there is no bright-line legal test for what sort of redistribution qualifies as ‘commercial’. Selling the software as a product qualifies, certainly. But what if it were distributed at a nominal price of zero in conjunction with other software or data, and a price is charged for the whole collection? Would it make a difference whether the software were essential to the function of the whole collection?

Nobody knows. The very fact that no-commercial-use licenses create uncertainty about a redistributor's legal exposure is a serious strike against them. One of the objectives of the OSD is to ensure that people in the distribution chain of OSD-conforming software do not need to consult with intellectual-property lawyers to know what their rights are. OSD forbids complicated restrictions against persons, groups, and occupations partly so that people dealing with collections of software will not face a combinatorial explosion of slightly differing (and perhaps conflicting) restrictions on what they can do with it.

This concern is not hypothetical, either. One important part of the open-source distribution chain is CD-ROM distributors who aggregate it in useful collections ranging from simple anthology CDs up to bootable operating systems. Restrictions that would make life prohibitively complicated for CD-ROM distributors, or others trying to spread open-source software commercially, have to be forbidden.

On the other hand, the OSD has nothing to say about the laws of your jurisdiction. Some countries have laws against exporting certain restricted technologies to named ‘rogue states’. The OSD cannot negate those, it only says that licensors may not add restrictions of their own.


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The Art of Unix Programming
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