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The Free Software Way, by Richard Fontana, Esq.
Tuesday, January 26 2010 @ 02:18 PM EST

Red Hat has a new website, opensource.com, where they intend to explore how open source affects more than just software, and they're publishing articles on open source in education, business, law, and government. And life. It's designed to be a community forum, one way to give back to the community, as expressed by Red Hat's CEO Jim Whitehurst in his welcoming article, and they hope you'll join in the conversation.

I thought I'd introduce you to the website's rich content by posting an article from the Law section. It's by Richard Fontana, who is Red Hat's Open Source Licensing and Patent Counsel, and I know him and trust him from being on the committee that he chaired in the revision of GPLv3. I can republish his article, because it's under a Creative Commons license, Attribution-Share Alike 3.0 Unported, which means you are free to republish it and share it with others under those terms as well. I think you'll want to, because he explains very clearly the legal rights that are implied by free, not just open source, software, and its extension to other areas, and why open source, while necessary, is not enough.

The free software way
~ by Richard Fontana

On opensource.com you may often encounter references to "the open source way". My colleagues at Red Hat who use this phrase are, I think, looking at the most iconic, mature and commercially significant examples of the development model that is, today, closely associated with open source software, and are distilling certain general principles or values from such examples. Many active contributors to opensource.com are particularly interested in exploring how these same values are being applied in domains far removed from software development. Chief among these “open source way” values are transparency, community, and meritocracy.

I respectfully dissent from any simple equation of “open source” with those values. Don’t get me wrong: those are great and inspirational concepts, and I am particularly pleased that they form a core part of Red Hat’s corporate identity today. But open source is more, and less, than those things.

The term “open source” originated in a 1998 marketing campaign by some developers and entrepreneurs to encourage enterprise adoption of what had previously most often been called “free software”. Rebranding was a part of the strategy. I mention this because I think there is a tendency today for some who are less familiar with this history to make too much of the word “open” in “open source”. Certainly it was not intended as a general reference to a principle of information transparency, but rather a recognition that source code availability to users was a necessary condition for software to be "free as in freedom".

Necessary, but not sufficient. Indeed, a flaw in the term "open source" is that it seems to place sole emphasis on source code availability per se. Source code licenses that prohibit redistribution, and which require payment of a license fee and signing a non-disclosure agreement, have been around for as long as software companies have been asserting copyright and trade secret rights in software. The modern free software movement began in large part as a reaction against such licensing.

What the term “open source” fails to capture is the bundle of legal rights granted to users — broad freedoms to copy, modify, and redistribute — that make open source FaiF. These rights, if coupled with source code availability, are sufficient for distributed software to be open source. All community efforts to define free software, or open source, rest on this understanding.

To me, then, open source is not a development methodology, let alone a distillation of broadly-applicable principles seen as underlying such a methodology. Rather, open source is a specific legal model of property rights transfer. To put it differently, open source is about freedom to use, modify, and share creative material that could otherwise be severely legally restricted by the author. (Source code availability is relevant because otherwise the freedom of modification would be practically impossible to exercise.)

What we think of as the modern open source development model – involving public collaboration, community-building, transparent development, and meritocratic participation – is a side effect of the open source legal model; it is not intrinsic to it. There are plenty of open source projects that are not especially meritocratic. There are plenty of open source projects that are less than completely transparent, or which do not effectively build any user or contributor communities to speak of.

Moreover, not all collaborative community software development models are justifiably considered open source (for a good example of one that isn’t, see the Code Project). In recent years we have seen successful extensions of the free software model to non-software endeavors; a notable example is Wikipedia, where all contributions are licensed under CC-BY-SA, a license which grants permissions equivalent to those available under copyleft software licenses. But I disagree with my colleagues who regard MIT OpenCourseWare as an example of the open source way, because the license of MIT’s OCW contains use restrictions that are incompatible with open source licensing norms. So, for me, the open source way means fidelity to the legal model of free software, appropriate to the medium and context.


Richard is Open Source Licensing and Patent Counsel at Red Hat. Prior to joining Red Hat, he was Counsel at the Software Freedom Law Center, where he advised and represented many free software and open source projects and foundations. He was co-author, with Richard M. Stallman and Eben Moglen, of version 3 of the GNU General Public License (GPLv3), the first update of the most widely used free software/open source license in over 15 years.


  


The Free Software Way, by Richard Fontana, Esq. | 106 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please
Authored by: tiger99 on Tuesday, January 26 2010 @ 02:48 PM EST
.

[ Reply to This | # ]

Off topic here please
Authored by: tiger99 on Tuesday, January 26 2010 @ 02:51 PM EST
Please remember to make clickable links where appropriate. And no on-topic in
this thread, or we will find some suitable punishment.....

[ Reply to This | # ]

Newspick discussions here please
Authored by: tiger99 on Tuesday, January 26 2010 @ 02:52 PM EST
Please remember to identify which Groklaw newspick you are referring to in the
title of your post.

[ Reply to This | # ]

If you have difficulty signing up to oensource.com...
Authored by: Vic on Tuesday, January 26 2010 @ 03:56 PM EST

... It's probably RH's fault.

They send out your sign-up info from a redhat.com address - but they actually
send the mail from a slicehost.net IP address.

Now Red Hat use SPF for their email - so they explicitly state which IP
addresses may send email on behalf of their domain. And the slicehost one isn't
listed...

So if your MTA filters on SPF (either directly or as a loading for a spam
score), you might well not get your sign-up emails. Because they messed up.

I have told them about this...

Vic.


---
http://solectronics.co.uk
Solving problems with Free Software

[ Reply to This | # ]

"open source is a specific legal model of property rights transfer"
Authored by: Anonymous on Wednesday, January 27 2010 @ 03:57 AM EST
Richard writes "open source is a specific legal model of property rights
transfer" -- but to me property rights come *after* 'open source'.

Meaning: even if there were no laws, let alone property laws or property rights,
I can make software and let you use it, without giving you the source code.

[ Reply to This | # ]

News Picks Here
Authored by: dio gratia on Wednesday, January 27 2010 @ 04:40 AM EST
Please indicate the News Pick in the title and make links clicky.

[ Reply to This | # ]

Shared legal advice?
Authored by: tqft on Wednesday, January 27 2010 @ 02:48 PM EST
Not me writing the original.
I understand (I think) why legal opinions and so on can't be shared but it is still a shame to waste so much time and money and effort:
Found on Planet Mozilla from
"Another interesting talk was Andrew Tridgell on patent defence for free software. Most of it was basic stuff about patents that I already knew, but he made one very important suggestion, which was that we need to find a way for free software organizations to collaborate on patent defence by sharing legal information. Right now this is basically impossible; for reasons I don't understand, the legal opinions we get, we are required to keep secret. This makes us vulnerable to a divide-and-conquer strategy because we can't band together to work together effectively on strategy and to share legal advice to keep costs down. Some sort of legal hacking may be required to solve this problem. "

I think the reason is that by hsaring your advice you lose lawyer-client privilege and telgraph to the world your motives and possible defensive/offensive plays. What have I missed?

---
anyone got a job good in Brisbane Australia for a problem solver? Currently under employed in one job.

[ Reply to This | # ]

Open Source has to be Free Software
Authored by: The Mad Hatter r on Wednesday, January 27 2010 @ 10:08 PM EST

Is what he is saying. I am in 100% agreement.

However I know people who will hate this argument, and I suspect that this is
going to start a firestorm in places like Boycott-BoycottNovell. To bad Lefty.


---
Wayne

http://madhatter.ca/

[ Reply to This | # ]

The Free Software Way, by Richard Fontana, Esq.
Authored by: iceworm on Thursday, January 28 2010 @ 10:20 PM EST

Hmmm...for me this article does not compute. I understand that Free Software includes the source code and that the term, opensource or Open Source, or (whatever) only refers to the source code availability for viewing.

[ Reply to This | # ]

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