Understanding Open Source Software

by Kanerva Jalas

Intellectual property refers to the legal protection granted over immaterial goods. Such goods refer to items which do not possess a physical form, but instead which are expressed as creations of the human mind. Material goods, in turn, refer to items which have a tangible form, and ownership over which can be demonstrated with mere possession of the good. To ensure protection of these rights, property legislation has been enacted. A problematic aspect of intellectual property relates to the lack of possibility to establish ownership in a corresponding manner to tangible goods. For this purpose, intellectual property legislation, modelled after the traditional property laws, were employed. The following categories have been established: trade mark, copyright, industrial designs and patents. The differences lie in the subject of protection: trade marks relate to marks and signs used in commercial relations, patents protect industrial technical innovations, industrial designs aim to protect aesthetic aspects of a product and copyright focuses on creative outputs of the human mind. An example of a copyright protected work includes human written source code, also known as computer software. Licensing the usage of copyright protected software has proven to be a successful business model; it allows the author of the code to authorise a third party to make use of the code in a desired manner. Such a technique has proven to be a commercial success with large companies such as Microsoft and IBM making use of it.

However, the power that corporations hold due to ownership over copyright protected software - or what is also known as proprietary software - has become destabilised as a result of a new movement within the software development community. In the 1980s an MIT professor, Richard Stallman, wished that he could acquire the source code of the local printer at his workplace in order to develop its features, but received a reply denying this possibility due to copyright restrictions. This interaction launched Stallman’s motivation to direct the software development community to a more open, communal approach; he wished for software to be free of restrictions that were enforced on it by copyright protection. Stallman established a new way of licensing that would allow all individuals to freely access, modify or use the distributed source code, called the General Public Licence (GPL). The licence would only contain one restriction; whoever used source code that was made available with GPL, would also have to make any derivative works available freely to the public with GPL licence. By creating a chain of free access, usage of the GPL licence aims to maximise the net benefit of software by encouraging third parties to better the software in an open environment. In 1985, Stallman founded the Free Software Foundation (FSF) to promote his licence and ideology. An important contribution in the development of open source software was the creation of the Linux kernel by a professor in the University of Helsinki, Linus Torvalds. Linux was created by using open source software, which arguably contributed to its fast popularity amongst hardware; community contribution allows for a vast amount of perspectives and fast recognition of problems which need fixing. Linux and other open source software have created competition for Big Tech firms such as Microsoft, while others have been able to adapt such as Google and Apple.

Since the development of the FSF ideology, the community involved in software development has been divided into two separate movements. The free software movement and those involved in FSF wish to emphasise the political and social aspects related to software. In the initiation of the movement, Stallman referred to one of the fundamental rights - the right to freedom of speech and expression - to be extended to the distribution of software. The FSF argued that there should be the freedom to run software, the freedom to study it, the freedom to redistribute software, and the freedom to modify and improve software. Stallman also defined that the inclusion of the word ‘free’ in free software refers to the right of freedom, not to a good being free of a monetary price. Furthermore, the community dissatisfaction with the traditional framework of copyright protection is expressed with the label of GPL licence; using a permissive licence such as GPL is known as a method of copyleft. Open source software gained attention and began to be the foundation of many software projects worldwide. However, the abstract concept posed difficulties for software developers who wished to monetise their work: an idea of the fact that the software must be made freely available to the public, and the notion of the software being ‘free’ did not appeal to venture capital investors. As a result, the open source movement was established and detached itself from FSF created by Stallman. Open source movement aims to focus on the technical benefits of open source, such as communal development of the software.

The evolution of open source software technology has revolutionised the speed of technological creation, and in the process, it has changed copyright protection of computer programs in the traditional sense. The open source and free software movements utilised the ability to license copyright protected work and employed it to fit a more community based agenda. What the legal implications of such licences as GPL will be left to be seen, and will require the attention of legislators worldwide.

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